[2017] KEHC 2865 (KLR)
The appellate court found that the sentence of 7 years imprisonment for a first offender convicted of stock theft was excessive, as it amounted to half the maximum sentence prescribed by Section 278 of the Penal Code. The court reasoned that for a first offender, a sentence of a quarter of the maximum would be...
Source-derived case information.
- Citation
- [2017] KEHC 2865 (KLR)
- Parties
- Appellant: Ltalakwa Lesodonkera; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 100 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- MM Kasango
- Legal Topics
- Sentencing Principles, Stock Theft, Penal Code Section 278
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ltalakwa Lesodonkera
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment imposed on a first offender for stock theft was manifestly excessive.
- 2 Whether the appellate court should interfere with the trial court's exercise of discretion in sentencing.
Ratio Decidendi
The appellate court found that the sentence of 7 years imprisonment for a first offender convicted of stock theft was excessive, as it amounted to half the maximum sentence prescribed by Section 278 of the Penal Code. The court reasoned that for a first offender, a sentence of a quarter of the maximum would be adequate to punish and deter, and that imposing half the maximum on a first offence would leave little room for escalation in sentencing for repeat offences. The court therefore held that there was a basis to interfere with the trial court's sentence and substituted it with a sentence of two years imprisonment, to commence from the date of original conviction and sentencing.
Court Disposition
sentence varied
Orders
- The trial court's sentence of 7 years imprisonment is set aside.
- The appellant is sentenced to two years imprisonment, to commence from the date of original conviction and sentencing.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
CRIMINAL CASE APPEAL NO. 100 OF 2016
LTALAKWA LESONDONKERA ……APPELLANT
VERSUS
REPUBLIC …………………….….RESPONDENT
(Being an appeal from the original conviction and sentence by Hon. C N Ndegwa Principal Magistrate dated 16h March 2016 in Maralal Principal Magistrate Court Criminal CaseNo. 790 of 2015)
JUDGMENT
1. The appellant LTALAKWA LESODONKERAwas charged and convicted of the offence of stealing Stock Contrary to Section 278 of the Penal Codebefore the Principal Magistrate’s Court at Maralal. On being convicted the trial court sentenced him to 7 years imprisonment. Being aggrieved of that sentence the appellant has filed this appeal against that sentence.
2. In his submissions the appellant has presented mitigation. He submitted that this court do consider his imprisonment, now of one year and three month, as sufficient for the offence bearing in mind that he has challenges with his health, allegedly he is suffering from TB although under treatment; and that because he is now reformed, religious and having a skill.
3. The Learned Principal Prosecuting Counsel Mr Tanui opposed the appeal on the basis that the sentence was lenient. That the trial court in sentencing was informed that appellant was a first time offender and that the offence of stock theft was prevalent in that area.
4. Sentencing is always the discretion of the trial court. That discretion can only be interfered with if the sentence is manifestly excessive in the circumstances of the case; if the trial court over looked material factor; if the trial court took into account some wrong material, or if the trial court acted on the wrong principles: see SUSAN ASIYO – V- REPUBLIC [2016] eKLR
5. In the case REGINA – V – MA [2004] 145 A the principles of sentencing were set out as follows:
i. To ensure that the offender is adequately punished;
ii. To prevent crime by deterring the offender and other persons from committing similar offences;
iii. To protect the community from the offender;
iv. To promote the rehabilitation of the offender;
v. To make the offender accountable for his or her actions;
vi. To denounce the conduct of the offender
vii. To recognise the harm done to the victim of the crime and the community.
6. Bearing the above Principles in mind I do consider the sentence of the appellant who was a first offender, of 7 years imprisonment to be excessive. 7 years imprisonment is half the sentence of the maximum set out in Section 278 of the Penal Code. If a first offender is sentenced to half of the maximum sentence what if he offends three or four times more. The sentencing court would sooner than later reach the maximum sentence. For a first offender the sentence ought to have at least been a quarter of the maximum sentence. Such a sentence would in my view ensure the offender is adequately punished and it would act as a deterrent. It is for the above reason I make a finding that there is basis of interfering with the trial court’s sentence.
7. For the above reason the trial court’s sentence is hereby set aside.
LTALAKWA LESODONKERA is hereby sentenced to two years imprisonment which sentence shall start from the date he was convicted and sentenced by the Court.
Dated and Delivered at Nanyuki this 23rd October 2017
MARY KASANGO
JUDGE
Coram
Before Justice Mary Kasango
Court Assistant: Njue/Mariastella
Appellant: Ltalakwa Lesodonkera
For state: ………………………………
Language …………………………………
COURT
Judgment delivered in open court
MARY KASANGO
JUDGE