[2010] KEHC 3560 (KLR)
The court held that while the sentences imposed were within the statutory limits, the appellant's mitigation—including lack of violence, recovery of stolen items, and personal circumstances—justified a reduction of sentence. Exercising its powers under section 354(3)(ii) of the Criminal Procedure Code, the court...
Source-derived case information.
- Citation
- [2010] KEHC 3560 (KLR)
- Parties
- Appellant: Ochieng Daniel Abala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 87 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appeal otherwise dismissed
- Judges
- MJA Emukule
- Legal Topics
- House Breaking, Stealing, Sentencing, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ochieng Daniel Abala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant, who pleaded guilty to house breaking and stealing, was lawful and appropriate.
- 2 Whether the appellant's mitigation and circumstances warranted a reduction of sentence.
Ratio Decidendi
The court held that while the sentences imposed were within the statutory limits, the appellant's mitigation—including lack of violence, recovery of stolen items, and personal circumstances—justified a reduction of sentence. Exercising its powers under section 354(3)(ii) of the Criminal Procedure Code, the court reduced the sentences on both counts to two years each, to run concurrently. The appeal was otherwise dismissed as the conviction was based on a valid plea of guilty and the sentences, as reduced, were lawful and appropriate.
Court Disposition
sentence reduced; appeal otherwise dismissed
Orders
- The sentences on both counts are reduced to two years each, to run concurrently.
- The appeal is otherwise dismissed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Appeal 87 of 2009
OCHIENG DANIEL ABALA………………..…………………….APPELLANT
VERSUS
REPUBLIC………………………………….…………………..RESPONDENT
JUDGMENT
The appellant was charged with two counts of the offence of house breaking contrary to section 304(1) of the Penal Code and stealing contrary to section 279(b) of the Penal Code. He was convicted on his own plea of guilty and was sentenced to serve five (5) years on each count and the sentences to run concurrently. He has appealed to this court on six grounds.
Under the provisions of Section 348 of the Criminal Procedure Code (Cap 75 Laws of Kenya) no appeal is allowed where a person pleads guilty except to the extent or legality of the sentence. The offence of house breaking carries a sentence of seven (7) years and that of stealing contrary to section 279 (b) carries a sentence of fourteen (14) years. In this case the appellant was sentenced to serve a period of five (5) years on each count and the sentences to run concurrently. The sentences are in accordance with the law. However, the appellant did not use or threaten any violence as is envisaged by section 279(b) of the Penal Code. The items stolen were all recovered. The appellant has in mitigation pleaded that he had not been paid for a period of 4 months and was desperate to hold on to something of value to sell and buy some food. The appellant also pleads that he pleaded guilty because he had expected a non-custodial sentence.
Considering the offence committed the circumstance of the commission of that offence the appellant’s plea for leniency, and considering the provisions of section 348 of the Criminal Procedure Code in exercise of the powers conferred upon this court by the provisions of Section 354(3)(ii) of the Criminal Procedure Code I would reduce the sentences on both counts to two (2) years. Both sentences to run concurrently, appeal is otherwise dismissed.
There shall be orders accordingly.
Dated, delivered and signed at Nakuru this 26th day of February 2010
M. J. ANYARA EMUKULE
JUDGE