[2015] KEHC 4614 (KLR)
The court found no sufficient reason to interfere with the conviction or sentence imposed by the trial court. The appellant was properly convicted based on the evidence, including recovery of stolen items in his presence and his own admissions. The sentence of seven years' imprisonment was lawful and appropriate...
Source-derived case information.
- Citation
- [2015] KEHC 4614 (KLR)
- Parties
- Appellant: Nicholas Ouma Omollo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 137 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- HK Chemitei
- Legal Topics
- Breaking and Entering, Handling Stolen Property, Sentencing, Mitigation, Habitual Offender, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Ouma Omollo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction and sentence for breaking into a building and committing a felony were proper in law.
- 2 Whether the sentence imposed was excessive or unlawful.
- 3 Whether there were sufficient grounds for the appellate court to interfere with the sentence.
Ratio Decidendi
The court found no sufficient reason to interfere with the conviction or sentence imposed by the trial court. The appellant was properly convicted based on the evidence, including recovery of stolen items in his presence and his own admissions. The sentence of seven years' imprisonment was lawful and appropriate given the circumstances, including the appellant's status as a habitual offender. The court emphasized that appellate intervention is only warranted where the sentence is illegal or based on extraneous considerations, neither of which was present. The appellant's mitigation was found unpersuasive, particularly as he misrepresented facts regarding his family background....
Court Disposition
appeal dismissed
Orders
- The appeal is hereby dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. 137 OF 2013
NICHOLAS OUMA OMOLLO..............................APPELLANT
VERSUS
REPUBLIC .....................RESPONDENT
[Appeal from Original Conviction and Sentence from Senior Principal Magistrate's Court : D. CHEPKWONY – SPM at Nyando
in Criminal Case No.359 of 2012. ]
JUDGMENT
The appellant was charged with the offence of breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code . The particulars of the offence are that on the night of 21st and 22nd March 2012 at Boya Centre in Kebongo Sub-location in Nyando District stole assorted items valued at Kshs. 77,680/= which belonged to one Charles Omondi Odwar.
The appellant was equally charged with handling stolen property contrary to Section 322(1)(2) of the Penal Code.
The appellant was convicted and sentenced to 7 years imprisonment hence this appeal.
The Petition of appeal dated 6. 2.2013 is basically on mitigation. The appellant is praying for forgiveness as he was remorseful.
Briefly the fact of this case are that the complainant, PW1, Charles Omondi Odwar closed his shop at around 6. 30 p.m on 21/3/2012. At around 6. 30 a.m he was called by the landlord who informed him of the break in his premises . He went to the scene and saw what had transpired. He then reported to the police, listing all the items that had been stolen.
On 11/4/2012 he was called by Tom Ogallo PW2, a member of the community policy to identify some items found in some home. He went to the scene where he met the appellant. Upon searching , they found the stolen bicycle which he identified together with other assorted items. They were found in the appellant's mother's house who was not present at the time.
The appellant was then arrested and taken to Boya Police station where PW3 Laban Anunda carried out the the investigations. He later produced the various assorted recovered items which were produced as evidence in court.
The appellant gave unsworn evidence denying the charge. He however confirmed that the stolen items including the bicycle were recovered in his presence at his mother's house.
The State opposed the appeal arguing that the appellant was an habitual offender and that putting him behind bars would help him reform. In any case the State argued, the sentence was proper and not unlawful.
Having perused the proceedings as well as heard the oral submissions by the appellant and the learned state counsel I do not find any sufficient reason to allow the appeal. The same is proper in law and this court can only interfere if it is illegal or inconsistent with the law. In other words the court shall interfere with the sentence if the trial court considered such extreneous matters in arriving at its decision. I find that even at the mitigation level the appellant was economical with the truth by alleging that he was an orphan yet his mother testified against him. He did not deny that he served another sentence for a similar offence of stealing.
The appeal is hereby dismissed.
Dated, delivered this 25th day of May 2015
H. K. CHEMITEI
JUDGE