[2018] KEHC 5318 (KLR)
The High Court found that the trial magistrate erred in treating the appellant's silence in mitigation as lack of remorse and imposed a sentence that was unduly harsh given the recovery of the stolen goats, the appellant's plea of guilty at the first opportunity, and his status as a first offender. The court held...
Source-derived case information.
- Citation
- [2018] KEHC 5318 (KLR)
- Parties
- Appellant: Paul Nyabuto; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 90 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Stealing Stock, Mitigation, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Nyabuto
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for stealing stock was harsh or excessive in the circumstances.
- 2 Whether the trial court erred in considering the appellant's lack of mitigation as lack of remorse.
Ratio Decidendi
The High Court found that the trial magistrate erred in treating the appellant's silence in mitigation as lack of remorse and imposed a sentence that was unduly harsh given the recovery of the stolen goats, the appellant's plea of guilty at the first opportunity, and his status as a first offender. The court held that these factors warranted a reduction of the sentence to time served, as the appellant had already served three years in prison.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The sentence is reduced to time served.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. 90 OF 2017
PAUL NYABUTO ..................................................................APPELLANT
VERSUS
REPUBLIC..........................................................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. V.M Nyaga – RM dated 29th June, 2015 at the Chief Magistrate’s Court at Kisii in Criminal Case No. 1660 of 2015)
JUDGMENT
1. The appellant, PAUL NYABUTO, was charged with the offence stealing stock contrary to section 278 of the Penal Code (Chapter 63 of the Laws of Kenya). It was alleged that on 22nd June 2015 at Bokeire Sub-location in Kisii South District of Kisii County, he stole three goats valued at Kshs. 12,000/= the property of Clement Onchari Sakawa.
2. The appellant pleaded guilty and was sentenced to serve five years imprisonment. He appeals against conviction and sentence but at the hearing, he asked the court to review the sentence.
3. The imposition of a sentence is within the discretion of the trial magistrate. The appellate court will not intervene unless it is shown that the trial court considered irrelevant facts, failed to consider relevant factors or erred on a point of principle. The court will also intervene if the sentence is harsh or excessive considering all factors (see Ugalo s/o Owuora v. Reginam [1954]EA CA 270 and Wanjema v. Republic [1971]EA 494).
4. In this case, the accused pleaded guilty at the first opportunity and was considered a first offender. When called upon to offer mitigation, he did not say anything. The trial magistrate stated that “The accused person is not remorseful. The court sentences him to five years imprisonment.”
5. The sentence was unduly harsh given the circumstances I have set out and the fact that the accused does not say anything in mitigation does not mean that he is not remorseful. According to the facts, the goats were recovered and overall, I find grounds for interference with the sentence.
6. As the appellant has been in prison for three years, I allow the appeal on sentence and reduce the same to time served. The appellant is released unless otherwise lawfully held under a separate warrant.
Dated and delivered at Kisii this 12th day of July2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellant in person.