[2010] KEHC 3613 (KLR)
The court exercised its discretion to alter the sentence from imprisonment to a fine, taking into account the appellant's mitigation, including his health status (HIV positive), remorse, and the recovery of the stolen funds. The court found these factors sufficient to justify substituting the custodial sentence with...
Source-derived case information.
- Citation
- [2010] KEHC 3613 (KLR)
- Parties
- Appellant: M.N; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 114 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal on sentence allowed; custodial sentence substituted with fine.
- Judges
- I Lenaola
- Legal Topics
- Forgery, Stealing by Servant, Sentencing Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.N
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was appropriate in light of the circumstances.
- 2 Whether the appellant should be given the option of a fine instead of imprisonment.
Ratio Decidendi
The court exercised its discretion to alter the sentence from imprisonment to a fine, taking into account the appellant's mitigation, including his health status (HIV positive), remorse, and the recovery of the stolen funds. The court found these factors sufficient to justify substituting the custodial sentence with a monetary penalty, ordering the appellant to pay a fine of Kshs. 10,000 on each count, totaling Kshs. 20,000, with a default sentence of one year's imprisonment per count to run concurrently. The appeal on sentence was thus allowed, and the original custodial sentence set aside in favor of the fine.
Court Disposition
appeal on sentence allowed; custodial sentence substituted with fine.
Orders
- The appellant shall pay a fine of Kshs. 10,000 in each count, totaling Kshs. 20,000.
- In default of payment, the appellant shall serve one year's imprisonment in each count, sentences to run concurrently.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Criminal Appeal 114 of 2008
M.N……………………………………….. ………………..APPELLANT
VERSUS
REPUBLIC ………………………………………....…………………….RESPONDENT
[Being an appeal from the original conviction and sentence in Kangundo PM’s Court
Criminal Case No. 142/2007 by G.L. Nzioka Ag., SPM on 6. 6.2008
JUDGMENT
1. At the hearing of this Appeal, Mr. Mutinda for the Appellant abandoned the Appeal on conviction and pleaded that on sentence, the option of a fine be given. Learned Principal State Counsel agrees and to put matters into perspective, the Appellant was charged in Kangundo PM’s Court Criminal Case No. 142/2007 with the offence of forgery contrary to section 349 of the Penal Code and stealing by servant contrary to section 281 of the Penal Code.He was alleged to have forged a cash deposit slip and stolen Kshs. 20,000/= from Joseph Munyasya Matolo which came into his possession by fact of his employment.
2. I have taken into account the evidence on record as well as the Appellant’s mitigation. He was sentenced to serve one (1) year’s imprisonment on each of the two counts and the sentences were to run concurrently. He is HIV Positive and regrets his conduct. It would also seem that the monies stolen were recovered.
3. This is a fit case for discretion on sentence to be exercised and so I shall allow the Appeal on sentence, and order that he shall pay a fine of Kshs. 10,000/= in each count i.e 20,000/= in total in default one (1) year’s imprisonment in each count and the prison sentences to run concurrently.
4. Orders accordingly.
Dated and delivered at Machakos this 5th day of February 2010.
Isaac Lenaola
Judge
In the presence of;Mr. Mutinda for Appellant
Mr. Omirera for Respondent
Isaac Lenaola
Judge