[2018] KEHC 2960 (KLR)
The High Court found that although the sentence of four years imprisonment for malicious damage to property was lawful under section 339(1) of the Penal Code, it was excessive given the value of the property (Ksh.300), the appellant's guilty plea, the fact that the complainant was his mother, and the appellant's...
Source-derived case information.
- Citation
- [2018] KEHC 2960 (KLR)
- Parties
- Appellant: Mohamed Adan Omar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 17 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Principles, Malicious Damage to Property, Creating Disturbance, Breach of Peace, Mitigation, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Adan Omar
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of four years imprisonment for malicious damage to property worth Ksh.300/= was excessive.
- 2 Whether the trial court exercised its sentencing discretion properly given the circumstances of the case.
Ratio Decidendi
The High Court found that although the sentence of four years imprisonment for malicious damage to property was lawful under section 339(1) of the Penal Code, it was excessive given the value of the property (Ksh.300), the appellant's guilty plea, the fact that the complainant was his mother, and the appellant's apparent rehabilitation. The court exercised its appellate jurisdiction to interfere with the trial court's discretion on sentencing, reducing the sentence to two years imprisonment to serve as a lesson to the appellant, with the sentences to run concurrently as previously ordered.
Court Disposition
sentence varied
Orders
- The sentence of four years imprisonment for malicious damage to property is set aside and substituted with two years imprisonment from the date of original sentencing.
- The two sentences (for creating a disturbance and malicious damage to property) shall run concurrently as previously ordered by the trial court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL APPEAL NO. 17 OF 2018
MOHAMED ADAN OMAR.............................APPELLANT
VERSUS
REPUBLIC.....................................................RESPONDENT
(From the sentence in Wajir Senior Resident Magistrate Criminal Case No. 8 of 2017 by Hon. Mugendi Nyaga (RM)
JUDGEMENT
1. The appellant pleaded guilty to a count of creating a disturbance in a manner likely to cause a breach of peace contrary to section 95 (1) (b) of the Penal Code, the particulars of which are that on the 31st December, 2016 in Wajir East Sub-County created a disturbance in a manner likely to cause a breach of peace by threatening to stab Fatuma Alinoor Mumin with a knife. He also pleaded guilty to a charge of malicious damage to property contrary to section 339 (1) of the Penal Code. The particulars of the offence being that on the same day and place, he willfully and unlawfully damaged a water jerican of 10 letres valued at Ksh.300/= the property of Fatuma Alinoor Mumin.
2. He was convicted and sentenced to serve four (4) months imprisonment in Count 1 and four (4) years imprisonment on Count 2. Sentences to run concurrently.
3. He has now come to this court on appeal on sentences. He relied on written submissions and said orally that his father had died in his absence while in prison.
4. Mr. Okemwa for the State submitted that the four (4) years imprisonment for the water jerican worth Ksh.300/= was excessive. He stated that complainant was the mother of the appellant but the appellant appeared to have in rehabilitated in prison.
5. Sentencing is the discretion of a trial court. The sentence of four (4) years imprisonment is lawful for the offence of malicious damage to property. The mother of the appellant stated that he had become a nuisance to her and the magistrate took that into account as well as the prevalence of the offence in Wajir area. Indeed such offences are very common in Wajir area and are usually committed by young men against their parents mostly their defenceless mothers. The appellant has been in custody since 2017 which is about a year now. He pleaded guilty. I have been told that he had been rehabilitated. In those circumstances, I will interfere with the discretion of the trial court on sentencing but reduce the sentence to two (2) years imprisonment as a lesson to the appellant.
6. Consequently, I set aside the sentence of four (4) years imprisonment for malicious damage to property and reduce it to two (2) years imprisonment from the date on which he was sentenced by the trialcourt. The two sentences will run concurrently as ordered by the trial court.
Dated and delivered at Garissa this 18th day of October, 2018.
........................
George Dulu
JUDGE