[2005] KEHC 1732 (KLR)
The High Court found that the trial magistrate failed to consider the appellant's status as a first offender and the fact that the stolen pig was recovered and returned to the complainant. These were material factors that should have influenced the sentence. The failure to consider them constituted a breach of...
Source-derived case information.
- Citation
- [2005] KEHC 1732 (KLR)
- Parties
- Appellant: Musa Salim; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 20 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Sentencing Principles, Stock Theft, Mitigation, First Offender, Excessive Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Musa Salim
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment for stock theft was harsh and excessive in the circumstances.
- 2 Whether the trial magistrate failed to consider material factors such as the appellant being a first offender and recovery of the stolen property.
Ratio Decidendi
The High Court found that the trial magistrate failed to consider the appellant's status as a first offender and the fact that the stolen pig was recovered and returned to the complainant. These were material factors that should have influenced the sentence. The failure to consider them constituted a breach of sentencing principles, justifying appellate interference. The court held that, had these factors been considered, a lesser sentence would have been appropriate. Consequently, the sentence of 7 years imprisonment was set aside and substituted with a reduced sentence of 3 years with hard labour.
Court Disposition
appeal_allowed
Orders
- The appeal on sentence is allowed.
- The sentence of 7 years imprisonment is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA Criminal Appeal 20 of 2004 From Original BSA SRM’s 1123 OF 2004
MUSA SALIM………………….………..………APPELLANT
VS
REPUBLIC…………………………..………..RESPONDENT
J U D G M E N T
Musa Salim, the appellant herein pleaded guilty to a charge of stock theft contrary to Section 278 of the Penal Code. He was then convicted and sentenced to serve 7 years imprisonment. He has now appealed against the sentence on the ground that the same is harsh and excessive.
The learned senior state counsel did not oppose this appeal. In fact Mr. Onderi was of the view that the learned senior Resident Magistrate tendered a harsh and an excessive sentence.
This is an appeal which is only against the sentence. The principles of sentencing are well settled. On appeal the appellate court can only interfere with a sentence pronounced against an appellant if it is shown that the sentencing court overlooked some material factors or took into account some immaterial fact or acted on a wrong principle or that the sentence is manifestly excessive in the circumstances of the case.
The record of appeal shows that the appellant was a first offender. The Senior Resident Magistrate appears to have noted the appellant’s mitigation. The fact is that the appellant had prayed to the sentencing court to tender a lenient sentence.
The trial Senior Resident Magistrate did not consider the fact that the appellant was a first offender. This was obviously a material factor which should have been taken into account before sentencing. The main reason why the prosecutor is invited to give the previous record about a convict is to enable the sentencing court to weigh the type of sentence to pronounce. If a court does not consider this aspect then it is in breach of one of the principles of sentencing which gives this court the power to interfere with the discretion on sentence.
The record shows that the stolen pig was recovered and possession to the complainant was restored. This was not taken into account before sentencing. In the end I think it is important to interfere with the sentence. Had the magistrate considered the above factors she would have tendered a lesser sentence.
The upshot therefore is that I would and hereby do allow the appeal on sentence and proceed to set aside the sentence and substitute the sentence of 7 years imprisonment with a reduced sentence of 3 years with hard labour.
DATED AND DELIVERED THIS 4th DAY O F March 2005
J.K. SERGON
JUDGE