[2002] KEHC 141 (KLR)
The trial court's sentence was unlawful as it failed to include corporal punishment as mandated by Section 279(g) of the Penal Code. Upon review, the High Court considered the appellant's guilty plea, status as a first offender, recovery of the stolen property, and family circumstances. The court found that these...
Source-derived case information.
- Citation
- [2002] KEHC 141 (KLR)
- Parties
- Appellant: Mohammed Abdulkarim Mohamed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 533 of ??
- Procedural Posture
- Criminal Appeal / Appeal on Sentence
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Theft From Motor Vehicle, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Abdulkarim Mohamed
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal on Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was proper and lawful.
- 2 Whether the appellant's guilty plea and mitigating circumstances warranted a reduction of sentence.
Ratio Decidendi
The trial court's sentence was unlawful as it failed to include corporal punishment as mandated by Section 279(g) of the Penal Code. Upon review, the High Court considered the appellant's guilty plea, status as a first offender, recovery of the stolen property, and family circumstances. The court found that these mitigating factors justified a reduction in sentence. The appropriate sentence was determined to be two years imprisonment and four strokes of the cane, replacing the original five-year term.
Court Disposition
appeal_allowed_in_part
Orders
- The original sentence of five years imprisonment is set aside.
- The appellant is sentenced to two years imprisonment and four strokes of the cane.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.533 OF 2000
(From Original Conviction and Sentence in Criminal Case No.3462 of 2000 of the Chief Magistrate’s Court at Mombasa –Mbaabu Mugambi, Esq., - R.M.)
MOHAMMED ABDULKARIM MOHAMMED…………….APPELLANT
V E R S U S
REPUBLIC………………………………………………….RESPONDENT
J U D G M E N T OF COURT
The Appellant Mohamed Abdulkarim Mohamed pleaded guilty to the charge of Theft from a locked Motor Vehicle contrary to Section 279(g) of the Penal Code. He was sentenced to serve imprisonment of 5 years. He now appeals on sentence only. He pleads that he had pleaded guilty to the offence, he was a first offender, he has a large family of a wife and four children to look after and that taking all circumstances into account, the sentence is harsh and excessive. The stolen property was recovered.
To start with the sentence as it is, as pointed out by Miss Mwaniki for the State, is not proper in so far as it does not include a corporal punishment. It therefore stands to be replaced with a proper sentence to be meted out by this court. Secondly, in pronouncing sentence the trial Magistrate noted only that the Accused is a first offender. He did not take into account the fact that he had pleaded guilty although he noted that the offence is a serious one. Since this court is now seized with the jurisdiction of imposing a fresh sentence because the one meted out by the lower court is improper, I will take into account other factors since then brought on the record.
They include the fact that the Appellant has a large family of young children and a wife and that he pleaded guilty to the offence. The stolen property, apparently, a motor vehicle tyre, was recovered. The Appellant is remorseful and states he will not repeat the offence and that he has learnt adequate lesson. I have considered the mitigation and also the facts from which the offence arose. It is my considered view that a sentence of two years imprisonment will serve the purpose of punishment in this case. He will also receive four strokes of the cane.
The original sentence of five years is accordingly set aside and replaced by two years and 4 strokes of the cane. It is so ordered.
Dated and delivered at Mombasa this 27th day of May, 2002.
D. A. ONYANCHA
J U D G E