[2004] KEHC 782 (KLR)
The court found that the imposition of corporal punishment was unlawful as it had already been outlawed by the time of sentencing, and thus set aside that part of the sentence. Regarding the term of imprisonment, the court held that a sentence of four years was excessive given the appellant's plea of guilty, status...
Source-derived case information.
- Citation
- [2004] KEHC 782 (KLR)
- Parties
- Appellant: Mohamed Shali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 187 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part
- Legal Topics
- Sentencing Principles, Plea of Guilty, Corporal Punishment, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Shali
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was lawful and appropriate in light of the appellant's plea of guilty and status as a first offender.
- 2 Whether the imposition of corporal punishment was lawful at the time of sentencing.
Ratio Decidendi
The court found that the imposition of corporal punishment was unlawful as it had already been outlawed by the time of sentencing, and thus set aside that part of the sentence. Regarding the term of imprisonment, the court held that a sentence of four years was excessive given the appellant's plea of guilty, status as a first offender, youth (19 years old), and the recovery of the stolen item. The court emphasized the need for leniency in such circumstances to encourage reform and avoid unnecessary exposure to hardened criminals. Consequently, the court substituted the four-year imprisonment with an unconditional discharge, ordering the appellant's immediate release unless otherwise...
Court Disposition
appeal allowed in part
Orders
- The sentence of four years imprisonment is set aside and substituted with an unconditional discharge.
- The appellant shall be set free at once unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL NO. 187 OF 2003 (From Original Conviction and Sentence in Criminal Case No.201 of 2003 of the Senior Resident Magistrate’s Court at Lamu – J.D.C. Kombe, Esq., - S.R.M.)
MOHAMED SHALI…………………………………….…….APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
JUDGMENT
The appellant was charged with the offence of Breaking into a Building and committing an offence contrary to section 306(a) Penal Code in that he broke into a mosque, entered therein and stole an ancient pot valued at 10,000/=.
The appellant pleaded guilty to stealing and when facts of the offence were read to him he admitted without any reservation, all the facts. He was a first offender, in his mitigation he asked for forgiveness.
However the Trial Magistrate considered everything and imposed a sentence of 4 years imprisonment with 4 strokes of the cane. This I was on 22. 5.2003 by which time the corporal punishment was already outlawed. Therefore this part of sentence is unlawful and the same is set aside.
As to the term of imprisonment it is to be noted that maximum sentence is 7years. In the circumstance of this case where the plea of guilty was offered and the appellant was a first offender, and the stolen item was recovered. 4 years imprisonment is on the high side. The appellant is also a young man of 19 years.
I have perused the grounds of appeal. The appellant attempts to change his story after making admission to different facts. He now says the pot was not his and he was requested by owner to carry the pot and the owner went away, that he was sentenced without trial. These grounds have no merit. His age has been certified as being 19 yrs not 15 years as he now says. The appellant should know that having freely admitted the charge and particulars there would be no need for a trial. This is provided under section 207 Criminal Procedure Code, Cap 75. He is not challenging the manner the plea was taken.
On the issue of sentence the court finds the same to be high side in the circumstances. An accused who pleads guilty immediately he is called upon to plead should be treated with leniency for saving court time.
Also a first young offender is to be given consideration to give him opportunity to reform before he is contaminated by association with hardcore criminals in jail. In this case he has been in ail since May 2003.
In the circumstances I hereby set aside the sentence of imprisonment for the term of 4 years and substitute the same with an unconditional discharge.
The appellant shall be set free at once unless otherwise lawfully held.
Dated at Mombasa this 29th day of January, 2004.
JOYCE KHAMINWA
JUDGE
Read in presence of:-
Ms Kwena Appellant
Appellant
In open court.