[2013] KEHC 4210 (KLR)
The court found that although the trial magistrate was entitled to impose a sentence up to the statutory maximum of 14 years for robbery under section 296(1) of the Penal Code, the imposition of the maximum sentence was harsh and excessive in the circumstances. The appellant was a first offender, most of the stolen...
Source-derived case information.
- Citation
- [2013] KEHC 4210 (KLR)
- Parties
- Appellant: Mark Ndereva Eliud; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 42 of 2009
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal against sentence allowed; sentence reduced to period already served.
- Legal Topics
- Sentencing Principles, Robbery With Violence, First Offender, Penal Code Section 296, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Ndereva Eliud
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 14 years imprisonment imposed for robbery under section 296(1) of the Penal Code was harsh and excessive given the appellant was a first offender and most stolen items were recovered.
Ratio Decidendi
The court found that although the trial magistrate was entitled to impose a sentence up to the statutory maximum of 14 years for robbery under section 296(1) of the Penal Code, the imposition of the maximum sentence was harsh and excessive in the circumstances. The appellant was a first offender, most of the stolen items were recovered, and there were no aggravating circumstances in the commission of the offence. The court held that these mitigating factors warranted a reduction of the sentence to the period already served.
Court Disposition
Appeal against sentence allowed; sentence reduced to period already served.
Orders
- The sentence of 14 years imprisonment is set aside and substituted with a sentence of the period already served.
- The appellant shall be released from custody forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Meru
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MARK NDEREVA ELIUD …………………............................………..…APPELLANT
VERSUS
REPUBLIC………………………………..............................…………..RESPONDENT
JUDGEMENT
The Appellant was charged before Chief Magistrate court Meru with another with one count of robbery with violence contrary to section 296(2) of the Penal Code and an alternative count of handling stolen goods contrary to section 322(2) of the Penal Code. The offences were allegedly committed on the 9th October, 2002. The Appellant was the only one convicted and was convicted of the main count of robbery which was however reduced to robbery under section 296(1) of the Penal Code. He was sentenced to 14 years imprisonment on the 5th October 2006.
The Appellant was aggrieved by both the conviction and sentence and therefore filed this appeal.
When we came for the hearing of his appeal the Appellant informed the court that he was not pursuing his appeal against the conviction but only against sentence. He urged the court to reduce his sentence bearing in mind that he has served 7 years of that sentence.
The state was represented by Miss Murithi learned State Counsel. Miss Murithi opposed the Appeal and submitted that the sentence was right and that it should not be considered downward.
I have considered the Appellants Appeal against the sentence. I noted that the Appellant had been charged with capital robbery but after the learned trial magistrate considered the evidence she reduced the charge to simple robbery contrary to section 296(1) and proceeded to sentence the appellant to 14 years imprisonment. Section 296(1) provides
“Any person who commits the felony of robbery is liable to imprisonment for 14 years.”
The learned trial magistrate imposed the maximum sentence for this offence. I noted from the proceedings that the prosecution treated him as a first offender. The prosecutor also requested the court to hand down a stiff sentence against the appellant for reason the offence was serious.
The appellant has served 6 ½ years since his imprisonment. I considered that most of the stolen items in this case were recovered. Having been a first offender, it was rather harsh and excessive for the learned trial magistrate to impose the maximum sentence for the offence. The appellant deserve to be given some benefit for being a first offender especially since there were no aggravating circumstances in the manner in which the offence was executed.
I therefore find the sentence was harsh and excessive and accordingly allow the appeal against the sentence by reducing it from 14 years imprisonment to the period already served.
DATED SIGNED AND DELIVERED THIS 18TH DAY OF APRIL 2013
J. LESIIT
JUDGE.