[2010] KEHC 2016 (KLR)
The court found that the appellant, a first offender, was sentenced to a longer term of imprisonment than his co-accused solely because he exercised his right to a full trial. The court held that this is not a justifiable basis for imposing a harsher sentence. There were no aggravating circumstances that...
Source-derived case information.
- Citation
- [2010] KEHC 2016 (KLR)
- Parties
- Appellant: Onesmus Musembi Dishon; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 26 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- DW Mbuteti
- Legal Topics
- Sentencing Principles, Shop Breaking, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onesmus Musembi Dishon
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's sentence was excessive compared to his co-accused who pleaded guilty.
- 2 Whether insisting on a trial is a valid ground for imposing a harsher sentence.
Ratio Decidendi
The court found that the appellant, a first offender, was sentenced to a longer term of imprisonment than his co-accused solely because he exercised his right to a full trial. The court held that this is not a justifiable basis for imposing a harsher sentence. There were no aggravating circumstances that distinguished the appellant's conduct from that of his co-accused. Justice required that the appellant receive the same sentence as his co-accused. Accordingly, the sentence was reduced from 3 years to 2 years imprisonment, effective from the original date of sentencing.
Court Disposition
appeal_allowed_in_part
Orders
- The appellant's sentence is reduced from 3 years to 2 years imprisonment effective from 3rd February 2009.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Appeal 26 of 2009
ONESMUS MUSEMBI DISHON.....................................APPELLANT
VERSUS
REPUBLIC ...............................................................RESPONDENT
J U D G E M E N T
The Appellant was convicted, after trial, of the offence of shop braking and committing a felony therein contrary to section 306(a) of the Penal Code. He was on 3rd of February 2009 sentenced to serve 3 years in imprisonment. He has appealed against sentence only.
The particulars of the offence were that in the night of 5th October 2008 at Mwanyani Village, Kitumbu Location of Mbooni District within Eastern Province, jointly with his co-accused, John Kakotho Mutie, they broke and entered the shop of one Charles Safari with intent to steal therein, and that they did steal from therein various shop goods valued at KShs. 100/00. The co-accused pleaded guilty and was sentenced to serve 2 years imprisonment.
The Appellant was a first offender. He appears to have been sentenced to serve 3 years imprisonment, that is, 1 year more than his co-accused, simply because he insisted on being tried. That is not a just reason for penalising an offender. A full trial is the constitutional right of any accused person who does not plead guilty, and he should not be penalised for it.
There was no reason here why the Appellant could not attract the same sentence as his co-accused who pleaded guilty. There are no circumstances disclosed in the record that exacerbate the offence committed by the Appellant vis-a-vis that of his co-accused.
Justice here will be served by reducing the Appellant’s sentence from 3 years to 2 years imprisonment effective from the date of sentencing, which was 3rd February, 2009. To that limited extent only the appeal of the Appellant is allowed. It is so ordered.
DATED AT MACHAKOS THIS 4TH DAY OF MAY 2010
H. P. G. WAWERU
JUDGE
DELIVERED THIS 7TH DAY OF MAY 2010