[2007] KEHC 1106 (KLR)
The High Court held that the principles for appellate interference with sentence are well settled: interference is only warranted where the trial court acted on wrong principles or imposed a manifestly excessive or inadequate sentence. In this case, the appellant had already served one year and nine months of a...
Source-derived case information.
- Citation
- [2007] KEHC 1106 (KLR)
- Parties
- Appellant: Omaina Lekula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 294 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appellant released
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Principles, Stock Theft, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omaina Lekula
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for the offence of stock theft was manifestly excessive or warranted interference by the appellate court.
- 2 Whether the appellant's plea for leniency and personal circumstances justified a reduction of sentence.
Ratio Decidendi
The High Court held that the principles for appellate interference with sentence are well settled: interference is only warranted where the trial court acted on wrong principles or imposed a manifestly excessive or inadequate sentence. In this case, the appellant had already served one year and nine months of a seven-year sentence for stock theft, had shown remorse, and his personal circumstances (being the sole breadwinner and family hardship) were considered. The court found that the period already served was sufficient punishment given the value of the stolen property and the appellant's remorse. The sentence was therefore set aside and substituted with a sentence commuted to the...
Court Disposition
sentence reduced; appellant released
Orders
- The sentence of the trial magistrate is set aside and substituted with a sentence commuted to the period already served.
- The appellant is ordered set at liberty and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 294 of 2006
OMAINA LEKULA…………..…......…………………..APPELLANT
VERSUS
REPUBLIC…….........................................................RESPONDENT
JUDGMENT
The appellant, Omaina Lekula was charged with the offence of Stealing Stock contrary to Section 278 of the Penal Code. The particulars of the offence were that on the 15th November 2005, at Kisima in Samburu District, the appellant stole two herds of cattle, the property of Legii Lekitashara. When the appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After a full trial, he was convicted as charged and sentenced to serve seven years imprisonment. The appellant was aggrieved by his conviction and sentence and duly filed an appeal to this court.
Although the appellant raised several grounds of appeal challenging his conviction and sentence, at the hearing of the appeal, the appellant abandoned his appeal against conviction and instead pleaded to the court to reduce his sentence. He told the court that he had suffered while in prison. He stated that he was the sole bread winner of his family and his incarceration had made his family suffer hardship. He told the court that his father died leaving his mother to depend on him. He was remorseful and urged this court to exercise leniency on him. Mr. Mugambi for the State, left the issue of sentence to the discretion of the court.
I have considered the plea by the appellant for reduction of sentence. Mr. Mugambi for the State left the issue of sentence to the discretion of the court. The Court of Appeal in Samuel Githua Njoroge vs Republic CA Criminal Appeal No.53 of 2006 (Nakuru) (Unreported) held at page 2 as follows;
“The principles upon which an appellate court can interfere with the discretion of a trial [Magistrate] as regards sentence are well settled. The appellate court can only interfere where the trial [Magistrate] in assessing the sentence has acted on wrong principles or imposed a sentence which is manifestly inadequate or manifestly excessive. (See Diego vs Republic [1985] KLR 621).”
In the present appeal, the appellant was found guilty of stealing stock. He admitted that he sold one of the cows which he had stolen. He has pleaded with the court to exercise leniency on him. The appellant has not complained that the trial magistrate wrongly exercised his discretion when he sentenced him. He pleaded with the court to consider that he had suffered while in prison. He also pleaded with the court to consider that he was the sole bread winner of his family and also the fact that his incarceration had caused hardship to his family.
I have considered the plea of leniency by the appellant and the period the appellant has been in prison. The appellant was sentence to serve the custodial sentence on the 13th February 2006. The appellant has been in prison for a period of one year and nine months. Taking into considerations the value of the stolen property, this court is of the view that the appellant has been sufficiently punished. He appeared remorseful when he made his plea for reduction of sentence. I will therefore allow his appeal on sentence and set aside the sentence of the trial magistrate and substitute it with a sentence of this court commuting the sentence of the appellant to the period already served. The appellant is ordered set at liberty and released from prison unless otherwise lawfully held.
DATED at NAKURU this 16th day of November 2007
L. KIMARU
JUDGE