[2017] KEHC 4041 (KLR)
The court found that although the offence carried a maximum sentence of five years, the appellant was a first offender and had pleaded guilty. The trial magistrate had considered a non-custodial sentence but was influenced by the negative pre-sentence report regarding the appellant's family relations. The High Court...
Source-derived case information.
- Citation
- [2017] KEHC 4041 (KLR)
- Parties
- Appellant: Maurice Bahati Otuoma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 35 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- KW Kiarie
- Legal Topics
- Sentencing Principles, Plea of Guilty, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Bahati Otuoma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of four years imprisonment imposed on the appellant was harsh and excessive given the circumstances.
- 2 Whether the trial court properly considered the appellant's status as a first offender and the pre-sentence report.
Ratio Decidendi
The court found that although the offence carried a maximum sentence of five years, the appellant was a first offender and had pleaded guilty. The trial magistrate had considered a non-custodial sentence but was influenced by the negative pre-sentence report regarding the appellant's family relations. The High Court held that, notwithstanding the unfavourable pre-sentence report, the sentence of four years was harsh for a first offender who pleaded guilty. The sentence was therefore reduced to two years imprisonment, balancing the seriousness of the offence with the mitigating factors.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of four years imprisonment is set aside and substituted with a sentence of two years imprisonment.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 35 OF 2016
MAURICE BAHATI OTUOMA…….…………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………. RESPONDENT
(From the original conviction and sentence in criminal case No. 809 of 2016 of the Chief Magistrate’s Court at Busia by H.N Ndung'u (miss)– Chief Magistrate)
JUDGMENT
The appellant,MAURICE BAHATI OTUOMA, was charged with an offence of entering into a dwelling house with intent to commit a felony contrary to section 305(1) of the Penal Code.
The particulars of the offence were that on 9th April 2016 at EMWUKA village, MARACHI EAST location of BUSIA County, he entered into the dwelling house of PASILISA NYONGESA WEREwith intent to steal and did steal from therein a mobile phone valued at Kshs. 1500/= the property of the said PASILISA NYONGESA WERE.
He pleaded guilty to the offence. He was convicted and sentenced to four years imprisonment.
He now appeals against the sentence.
The state conceded the appeal through Mr. Owiti, the learned counsel.
The facts of the prosecution case were briefly as follows:
On 9th April 2016 at about 9. 30 a.m the complainant returned to his home and found the appellant under the bed. She raised an alarm and the appellant was arrested and taken to the police. When he was searched, he was found in possession of the complainant’s Nokia mobile phone. He was charged. He pleaded guilty to the offence. He was sentenced to four years imprisonment which he claims was harsh.
Section 305(1) of the Penal Code provides as follows:
Any person who enters or is in any building, tent or vessel used as a human dwelling with intent to commit a felony therein is guilty of a felony and is liable to imprisonment for five years.
The appellant was sentenced to serve four years imprisonment. Prior to the sentence, the learned trial magistrate called for a pre-sentence report. The report was not favourable to the appellant. His family was very negative about him. The learned trial magistrate had considered him for a non-custodial sentence but for his standing with his family. Being a first offender however, the sentence was harsh. I accordingly reduce the sentence to two years imprisonment. His appeal on sentence therefore succeed.
DELIVEREDandSIGNEDatBUSIA this 31stdayof July, 2017
KIARIE WAWERU KIARIE
JUDGE