[2016] KEHC 3868 (KLR)
The High Court found that although the sentence of five years' imprisonment for stealing a cock and two hens was legal, it verged on being excessive given the circumstances, including the recovery of some of the stolen property and the period already served by the appellant. The court noted that only one previous...
Source-derived case information.
- Citation
- [2016] KEHC 3868 (KLR)
- Parties
- Appellant: Peter Chege Kinyanjui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 40 of 2015
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Probation report ordered to determine suitability for non-custodial sentence; sentence not immediately set aside.
- Judges
- CW Meoli
- Legal Topics
- Sentencing Principles, Stealing Offences, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Chege Kinyanjui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of five years' imprisonment for stealing a cock and two hens was manifestly excessive in the circumstances.
- 2 Whether the appellate court should interfere with the trial court's exercise of discretion in sentencing.
Ratio Decidendi
The High Court found that although the sentence of five years' imprisonment for stealing a cock and two hens was legal, it verged on being excessive given the circumstances, including the recovery of some of the stolen property and the period already served by the appellant. The court noted that only one previous conviction was proven and that the trial court's discretion in sentencing should generally be respected unless the sentence is manifestly excessive. Consequently, the court ordered a probation report to assess the appellant's suitability for probation for the remainder of the sentence, indicating that a non-custodial sentence may be appropriate in the circumstances.
Court Disposition
Probation report ordered to determine suitability for non-custodial sentence; sentence not immediately set aside.
Orders
- A probation report to be tendered on the appellant's suitability to serve the remaining sentence or part thereof on probation.
- The probation report is to be availed within 21 days of the judgment date.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIVASHA
CRIMINAL APPEAL NO. 40 OF 2015
(Being an appeal from original Conviction and Sentence in the Senior Resident Magistrate’s
Court at Engineer Criminal Case No. 272 of 2015 by M. K. Mutegi - SRM)
PETER CHEGE KINYANJUI.......................................APPELLANT
-VERSUS-
REPUBLIC................................................................RESPONDENT
J U D G M E N T
1. The Appellant was convicted on two counts of the offence of Stealing Contrary to Section 275 of the Penal Code. The particulars state that on the night of the 17th March, 2015 at Yaanga village he stole a cock and two hens, the property of Paul Kiboro Ndungu and Hannah Wanjiru Kiarie, respectively.
2. The Appellant pleaded guilty to the charge and was sentenced to serve five years (5) imprisonment on each count. His appeal to this court is against sentence, his petition of appeal and submissions raising various mitigatory grounds based on the Appellant’s personal circumstances.
3. The Director of Public Prosecutions through Miss Waweru opposed the appeal. Based on the Appellant’s antecedents she asserted that the sentence was lenient but proper.
4. I have considered the matters canvassed. Sentencing is an exercise of discretion by the trial court and the appellate court will be slow to interfere unless the sentence meted out is illegal, is manifestly excessive or inadequate. In Wanjema –Vs- Republic (1971) EA 493, the court stated that:-
“[The] Appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
5. I have on my own reviewed the matter at hand. The property in question was a cock and two hens, the latter which were recovered and restored to the owners. Unfortunately the cock was dead on recovery. One previous conviction however was proven against the Appellant.
6. Nonetheless, in the circumstances of this case, the sentence of 5 years imprisonment verges on being excessive even though legal. The Appellant has served at least thirteen months since sentencing. I do order that a probation report be tendered on his suitability to serve the remaining sentence or part thereof on probation. Such report is to be availed within 21 days of today’s date.
Delivered and signed at Naivasha, this14thday ofJuly, 2016.
In the presence of:-
For the DPP : Mr. Koima
For the Appellant : N/A
C/C : Barasa
Appellant : absent
C. MEOLI
JUDGE