[2016] KEHC 4218 (KLR)
The court found that the trial court failed to consider the appellants' status as first offenders, their plea of guilty, and their expression of remorse when imposing a custodial sentence. Given the minor nature of the offence, the value of the stolen property, and the fact that the appellants had already served six...
Source-derived case information.
- Citation
- [2016] KEHC 4218 (KLR)
- Parties
- Appellant: Norbert Odhiambo Macrimbo; Appellant: Jonathan Otieno Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 2 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Stealing Offences, Plea of Guilty, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Norbert Odhiambo Macrimbo
Appellant
Jonathan Otieno Onyango
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was appropriate given the appellants' status as first offenders and their plea of guilty.
- 2 Whether the trial court erred by not considering a non-custodial sentence.
Ratio Decidendi
The court found that the trial court failed to consider the appellants' status as first offenders, their plea of guilty, and their expression of remorse when imposing a custodial sentence. Given the minor nature of the offence, the value of the stolen property, and the fact that the appellants had already served six months in prison, the High Court held that a non-custodial sentence was appropriate. The sentence was substituted with a suspended sentence for the balance of the term, with a warning that any further offence would result in the appellants serving the remainder of the sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The custodial sentence is substituted with a suspended sentence for the balance of the term.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CRIMINAL APPEAL NO.2 OF 2016
BETWEEN
NERBERT ODHIAMBO MACRIMBO....................................1ST APPELLANT
JONATHAN OTIENO ONYANGO..........................................2ND APPELLANT
AND
REPUBLIC.......................................................................RESPONDENT
[Being an Appeal from Original Conviction and Sentence from Kisumu Chief Magistrates Court, M. Agutu, RM in Criminal Case No. 748 of 2015 dated 28th December 2015]
J U D G M E N T
The appellants NORBERT ODHIAMBO MACRIMBO and JONATHAN OTIENO ONYANGO were charged with stealing contrary to section 208 as read with section 275 of thePenal Code (Chapter 63 of the Laws of Kenya). They also faced an alternative count of handling stolen goods contrary to section 322(1) and (2) of the Penal Code.
They are said to have stolen 6 iron sheets valued at Kshs.4,200/= being the property of JULIUS AYOMA on 25th December, 2015 at 2. 00am at Kanyakwar in Kisumu East, Kisumu County. They later pleaded guilty and were sentenced to serve 2 years imprisonment. They appealed against conviction and sentence.
At the hearing of this appeal they only pleaded their cases based on the sentence. I am aware that the appellate court should not interfere with the sentence imposed by the trial court unless the trial court has made an error of principle, taken into account irrelevant facts or failed to consider material facts.
In this case, given the nature of the offence, the fact that they were first offenders and that they had pleaded guilty expressing remorse, the court failed to consider whether a non-custodial sentence was suitable.
The appellants have served 6 months in prison and have learnt their lesson. I allow the appeal on sentence and substitute the same with a suspended sentence for the balance of the term. Should the appellants commit any offence, they shall be committed to prison to serve the remainder of the sentence.
They are accordingly released unless otherwise lawfully held.
DATED, SIGNEDandDELIVERED at KISUMU this 18th day of July, 2016.
D. S. MAJANJA
J U D G E
Appellant in person.
Ms Chelangat, Prosecution Counsel instructed by the Director of Public Prosecutions for the respondent.