[2008] KEHC 2920 (KLR)
The court found that the trial magistrate erred in ordering the sentences to run consecutively for offences arising from the same transaction, contrary to established legal principles. The court also held that the prosecutor's comments urging a deterrent sentence were improper and likely influenced the harshness of...
Source-derived case information.
- Citation
- [2008] KEHC 2920 (KLR)
- Parties
- Appellant: Mariba Kimaho Mwita; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 216 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- DK Musinga
- Legal Topics
- Sentencing Principles, Concurrent Sentences, Plea of Guilty, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mariba Kimaho Mwita
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in imposing consecutive sentences for offences committed in the same transaction.
- 2 Whether the sentence imposed was harsh and excessive given the appellant was a first offender who pleaded guilty.
- 3 Whether the prosecutor's comments improperly influenced the sentencing discretion of the trial magistrate.
Ratio Decidendi
The court found that the trial magistrate erred in ordering the sentences to run consecutively for offences arising from the same transaction, contrary to established legal principles. The court also held that the prosecutor's comments urging a deterrent sentence were improper and likely influenced the harshness of the sentence. Given that the appellant was a first offender, pleaded guilty, and the stolen animals were recovered, the sentences imposed were excessive. The court therefore allowed the appeal, reduced the sentences, and ordered that they run concurrently.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The sentence on the first count is reduced to 3 years’ imprisonment.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Criminal Appeal 216 of 2006
MARIBA KIMAHO MWITA …………………….………. APPELLANT
VERSUS
REPUBLIC ……………………………..…….....…… RESPONDENT
(From original conviction and sentence of the Resident Magistrate’s Court at Kilgoris, Criminal Case No.302 of 2006 by Mr. W. N. Kaberia, RM)
JUDGMENT
The appellant was charged with stealing stock contrary to section 278 of the Penal Code. He also faced another count of being unlawfully present in Kenya contrary to section 13(a) of the Immigration ActCap 172 laws of Kenya.
He was convicted on his own plea of guilty on both counts and sentenced to 10 years’ imprisonment on the first count and 1 year imprisonment on the second count. The sentences were to run consecutively.
Before the sentences was passed, the prosecutor informed the learned trial magistrate that the appellant was a first offender. The prosecutor added that there was a high incidence of stock theft in Trans-mara District and therefore urged the court to pass a deterrent sentence.
It is important to point out that it is improper for a prosecutor to attempt to influence the exercise of a trial magistrate’s discretion in sentencing an accused person by appealing to him to pass a deterrent sentence.
Secondly, is trite law that where a person commits more than one offence at the same time in the same transaction, save in exceptional circumstances, the sentences imposed should run concurrently, see ONDIEK V REPUBLIC [1981] KLR 430. It was therefore improper for the learned magistrate to order that the sentences do run consecutively.
The appellant was a first offender and had pleaded guilty. The sentence that was imposed upon him was most likely influenced by the improper comments by the prosecutor. The sentence was, in my view, harsh, considering that the appellant was a first offender and the animals that had been stolen were recovered and returned to the owner.
In the circumstances, I allow the appeal and reduce the sentence on the first count to 3 years’ imprisonment and on the second count to 6 months’ imprisonment. The sentences shall run concurrently.
DATED, SIGNED and DELIVERED at Kisii this 7th March 2008
D. MUSINGA
JUDGE
Judgment delivered in the presence of:
Mr. Kemo for the Republic
Appellant present.
D. MUSINGA
JUDGE