[2015] KEHC 3543 (KLR)
The court found that although the sentences imposed were within the statutory limits for burglary and stealing, the appellants pleaded guilty at the outset, were first offenders, had served a significant portion of their sentences, and demonstrated remorse. These mitigating factors, coupled with the period already...
Source-derived case information.
- Citation
- [2015] KEHC 3543 (KLR)
- Parties
- Appellant: Nzau Musyoka; Appellant: Nthiwa Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 282 & 334 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- LN Mutende
- Legal Topics
- Sentencing Principles, Burglary, Stealing, Mitigation of Sentence, First Offender, Remorse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nzau Musyoka
Appellant
Nthiwa Mutisya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellants was manifestly excessive to amount to an injustice.
- 2 Whether the mitigating circumstances warranted reduction of sentence.
Ratio Decidendi
The court found that although the sentences imposed were within the statutory limits for burglary and stealing, the appellants pleaded guilty at the outset, were first offenders, had served a significant portion of their sentences, and demonstrated remorse. These mitigating factors, coupled with the period already served, justified reduction of the sentences to the term already served. The court held that the original sentences, though lawful, could be reduced in the interests of justice given the circumstances of the appellants.
Court Disposition
appeal_allowed_in_part
Orders
- The sentences imposed on both appellants are reduced to the term already served.
- The appellants shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 282 OF 2013
NZAU MUSYOKA ……….…..………. APPELLANT
VERSUS
REPUBLIC ………………………….… RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 334 OF 2013
NTHIWA MUTISYA …………..…...……. APPELLANT
VERSUS
REPUBLIC …………………………….… RESPONDENT
(Being an appeal from the original conviction and sentence in Kithimani Principal Magistrate’s Court Criminal Case No. 752 of 2013 by
Hon. D. G. Karani, PM on 22/10/13)
JUDGMENT
Nzau Musyoka (1st Appellant)andNthiwa Mutisya (2nd Appellant)respectively were jointly charged with the offence of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code. Particulars of the offence being that on the night of 16th/17th day of October 2013 at Kangemi market within Machakos County jointly with others not before court, broke and entered the dwelling house of Henry Ngumbi with intent to steal therein and did steal, 1 sack of maize, 1 sack of beans, clothes and other assorted house hold items valued at Kshs.140,000 the property ofHenry Ngumbi.
They pleaded guilty to the charges at the outset and were sentenced to serve six (6) years imprisonment on each limb of the charge.
Being dissatisfied with the sentences imposed they now mitigate on sentence. The state through Mrs. Abuga, Learned State Counsel opposed the appeal arguing that the sentence imposed was proper and within the law.
In his mitigation the 1st appellant stated that his health has deteriorated due to severe illness. He is the sole breadwinner as his parents died when he was young and he has reformed.
The 2nd appellant on the other hand stated that he was involved in an accident prior to commission of the offence and he suffers from chest problems. His elderly grandmother who takes care of his two (2) children is now blind and he has undergone rehabilitation.
This being the first appeal, I am enjoined to scrutinize the record and come up with my own conclusions.
It is settled that an appellate court will not interfere with the exercise of discretion when it comes to sentencing. It will only do so if it is satisfied that the sentence imposed was manifestly so excessive to amount to an injustice (See Ogalo S/O Owoura vs R (1954) 21 EACA 126).
The sentence provided for the 1st and 2nd limb of the charges is ten (10) and fourteen (14) years imprisonment respectively. The appellants admitted the charges at the outset hence saved judicial time. They were first offenders. They have served sentence for a period of one (1) year and nine (9) months. They have expressed remorse. In the circumstances, I do reduce their sentences to the term served. They will be released forthwith unless otherwise lawfully held.
It is so ordered.
DATED, SIGNEDand DELIVERED at MACHAKOS this7THday of JULY, 2015.
L. N. MUTENDE
JUDGE