[2021] KEHC 9299 (KLR)
The High Court found that although the sentence imposed by the trial court was lawful and lenient, the trial court failed to consider the appellant's status as a first offender and did not call for a probation or presentence report. The court held that, in the interest of justice and considering the appellant's plea...
Source-derived case information.
- Citation
- [2021] KEHC 9299 (KLR)
- Parties
- Appellant: Meshack Ouma Owuor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E017 of 2020
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal allowed; sentence reviewed
- Judges
- RE Aburili
- Legal Topics
- Sentencing Principles, First Offender, Plea of Guilty, Stock Theft, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meshack Ouma Owuor
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed on the appellant, a first offender who pleaded guilty to stock theft, was appropriate and lawful.
- 2 Whether the trial court erred by not considering the appellant's status as a first offender and failing to call for a probation or presentence report before sentencing.
Ratio Decidendi
The High Court found that although the sentence imposed by the trial court was lawful and lenient, the trial court failed to consider the appellant's status as a first offender and did not call for a probation or presentence report. The court held that, in the interest of justice and considering the appellant's plea of guilty, first offender status, and the current challenges of prison congestion, the sentence should be reviewed. The custodial sentence of one year imprisonment was set aside and substituted with a fine of Kshs. 14,000, with a default sentence of the remainder of the original term if the fine is not paid.
Court Disposition
appeal allowed; sentence reviewed
Orders
- The sentence of 1 year imprisonment imposed on the appellant is set aside.
- The appellant shall pay a fine of Kshs. 14,000 in default to serve the remainder of the 1 year imprisonment term.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL APPEAL NO. E017 OF 2020
CORAM: HON. R.E. ABURILI J
MESHACK OUMA OWUOR...............................................................................APPELLANT
VERSUS
REPUBLIC...........................................................................................................RESPONDENT
(Appeal from the judgment, conviction and sentence in Bondo PM Cr Case No.E108 of 2020
delivered on 3/11/2020 by Hon S.W Mathenge, Resident Magistrate)
JUDGMENT
1. I have considered the appeal against sentence as the appeal against conviction was withdrawn. The Appellant was convicted on his own Plea of guilty for the offence of stealing stock contrary to Section 278 of the Penal Code and sentenced to serve 1 year imprisonment. He is a first offender and the value of the goat was not recovered. The sentence imposed was admittedly lawful and lenient, as the maximum provided for under Section 278 of the Penal Code is 14 years imprisonment.
2. Sentencing is in the discretion of the trial court and an appellate court should not interfere with that discretion save in exceptional circumstances.
3. In his mitigation, the Appellant pleaded for forgiveness. The trial court considered the offence and mitigation but she did not consider that he was a first offender.
4. Under Article 50(2)(p) of the Constitution, every convicted person is entitled to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been charge between the time the offence was committed and the time of sentencing and (q) to appeal for review by a higher court as prescribed by law.
5. The Appellant having been a first offender, the trial court should have considered calling for a Probation or Presentence report to appreciate the appellant/convict’s antecedents before imposing the sentence however lenient it was.
6. Having said that, I find that it is in the interest of justice that the appellant be considered for a least severe sentence and which sentence is now custodial, considering the fact that he is a first offender, he pleaded guilty to the charge and that our prisons have been full such that admitting there suspects or convicts of more serious offences has been a challenge as petty offenders are holed up there.
7. For the above reasons, I hereby exercise discretion and allow this appeal against sentence. I review the sentence imposed on the Appellant and set aside the 1 year imprisonment imposed on him and substitute it with a fine of fourteen thousand Kenya shillings, Kshs. 14,000/= in default to serve the remainder of the 1 year imprisonment term.
8. Orders accordingly.
Dated, signed and Delivered at Siaya this 2nd Day of February, 2021
R.E. ABURILI
JUDGE
In the Presence of:
Appellant and his Counsel Mr. Nyachoti K. Advocate
Mr. Kakoi, Principal Prosecution Counsel
Court Assistant: Modestar and Mr. Mboya