[2011] KEHC 901 (KLR)
The court found that the sentence of five years imprisonment was within the lawful maximum of seven years for the offence of shop breaking and committing a felony. The trial magistrate considered the seriousness and prevalence of the offence and did not take into account any extraneous matters. There was no evidence...
Source-derived case information.
- Citation
- [2011] KEHC 901 (KLR)
- Parties
- Appellant: Mwanza Nganda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 96 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Shop Breaking, Handling Stolen Goods, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanza Nganda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years imprisonment imposed on the appellant was harsh and excessive.
- 2 Whether the trial magistrate failed to consider relevant mitigating factors such as the appellant being a first offender and pleading guilty.
Ratio Decidendi
The court found that the sentence of five years imprisonment was within the lawful maximum of seven years for the offence of shop breaking and committing a felony. The trial magistrate considered the seriousness and prevalence of the offence and did not take into account any extraneous matters. There was no evidence that the trial court overlooked any material factor, acted on a wrong principle, or imposed a manifestly excessive sentence. Therefore, there was no basis for appellate interference with the sentence imposed.
Court Disposition
appeal dismissed
Orders
- The appeal on sentence is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
No.2974
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
MACHAKOS
CRIMINAL APPEAL NO.96 OF 2010
MWANZA NGANDA ...............................................................................APPELANT
VERSUS
REPUBLIC ................................................................................... RESPONDENT
JUDGMENT
The Appellant jointly with Mutunga Mbithe were charged before the Senior Resident Magistrate’s court at Tawa with the offence of shop breaking and committing a felony contrary to section 306 (a) of the Penal Code. It was claimed in the particulars of the charge sheet that during the night of 21st and 22nd December, 2009 at Thuilani Market in Mbooni West District within the Eastern Province, jointly with others not before the court they broke and entered into the shop of one, Michael Muloki with intent to steal therein and did steal six cans of ½ cowboy, 3¼ of Malo Cooking fat, seven pairs of Eveready blue, six pairs of Eveready red, five pairs of Eveready black, 30 kgs of sugar, 2 packets of wheat flour, all valued at KShs.26,150 the property of Michael Muloki. In the alternative, the appellant was charged with handling stolen goods contrary to section 322 (2) of the Penal Code; particulars being that on the same date and place, otherwise than in the cause of stealing, the appellant jointly dishonestly handled the afore said items.
The appellant pleaded guilty to the charge, was convicted on his own plea of guilty and sentenced to five years imprisonment. Against this sentence he now appeals on the grounds that he was a first offender, he had pleaded guilty to the charge, he was young and remorseful, he was ailing and that the sentence imposed was harsh and excessive.
When the appeal came up for hearing, the appellant maintained that the sentence imposed was harsh and excessive and that the trial Magistrate did not consider the fact that he was a first offender.
Mr. Mukofu, learned State counsel opposed the appeal and submitted that the sentence imposed was lawful. It was even lenient for he should have been sentenced to seven years. The offence was prevalent, hence the sentence imposed.
Essentially, this appeal is limited to sentence only. A sentence must in the end, however, depend upon the facts of its own particular case. An Appellate Court cannot interfere with the discretion which the trial court exercised in sentencing the accused unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on wrong principle or that the sentence is manifestly excessive in the circumstances of the case. I do not think that the instant sentence merits this court’s interference on any of the above grounds.
The offence charged attracts a maximum sentence of seven years. The appellant was sentenced to five years imprisonment. The sentence was therefore lawful. The learned Magistrate took into account the fact that the offence was serious and common. He did not consider matters extraneous matters when sentencing the appellant. The sentence in my view was not manifestly excessive in all the circumstances. It was merited and well deserved. Accordingly, this appeal on sentence is dismissed.
Dated and delivered at Machakos this 15th day of November, 2011.
ASIKE-MAKHANDIA
JUDGE