[2019] KEHC 946 (KLR)
The appellate court found that while the trial magistrate was correct in condemning the appellant's conduct, the sentence of seven years imprisonment was manifestly excessive in the circumstances. The court considered the family context, the mitigation offered, and the social inquiry report, and determined that a...
Source-derived case information.
- Citation
- [2019] KEHC 946 (KLR)
- Parties
- Appellant: Musilu Matuku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 55 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- LN Mutende
- Legal Topics
- Arson, Sentencing Principles, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musilu Matuku
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for arson was manifestly excessive in the circumstances of the case.
- 2 Whether the trial court exercised its discretion on sentencing properly.
Ratio Decidendi
The appellate court found that while the trial magistrate was correct in condemning the appellant's conduct, the sentence of seven years imprisonment was manifestly excessive in the circumstances. The court considered the family context, the mitigation offered, and the social inquiry report, and determined that a sentence of four years imprisonment would be just. The appellate court thus set aside the original sentence and substituted it with a four-year term, effective from the date of the original sentence.
Court Disposition
sentence varied
Orders
- The sentence of seven years imprisonment is set aside and substituted with four years imprisonment, effective from the date of sentence by the trial court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL APPEAL NO. 55 OF 2018
MUSILU MATUKU...............................................APPELLANT
VERSUS
REPUBLIC..........................................................RESPONDENT
(Being an Appeal from Original Conviction and Sentence in Mutomo Senior Principal Magistrate’s Court Criminal Case No. 31 of 2017 by Hon. S. Ngii (SRM) on 24/05/17)
J U D G M E N T
1. Musilu Matuku,the Appellant, appeals against sentence meted out for the offence of arson. The Appellant was taken through full trial, convicted and sentenced to seven (7) years imprisonment.
2. The Complainant was his biological mother. In mitigation, he informed the Court that the Complainant had chased away his wives.
3. The social inquiry carried out established that the Appellant disagreed with his mother because of the presence of a step-father in the homestead and accusations that his biological father had been chased away by the Complainant. The Complainant was hence not ready to accommodate the Appellant. The Area Administrator who was conversant with the problem between the Appellant and the Complainant alluded to threats to kill the Complainant by the Appellant.
4. Being an Appellate Court, I must re-consider what transpired in the trial Court and come up with my own conclusion.
5. In the case of Bernard Kimani Gacheru vs. Republic Criminal Appeal No. 188 of 2000the Court of Appeal stated thus:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
6. Section 332(a)of the Penal Codeprovides thus:
“Any person who wilfully and unlawfully sets fire to—
(a) any building or structure whatever, whether completed or not;”
7. In meting out the sentence, the learned trial Magistrate was of the view that the conduct of the Appellant could not be encouraged in a civilized society which is governed by the Rule of Law.
8. That notwithstanding, the sentence meted out was excessive. In the circumstances, I set aside the sentence imposed and substitute it with four (4) years imprisonment. To be effective from the date of sentence by the trial Court.
9. It is so ordered.
Dated, Signed and Delivered at Kitui this 3rd day of December, 2019.
L. N. MUTENDE
JUDGE