[2013] KEHC 3318 (KLR)
The High Court found that the trial court erred in imposing the maximum sentence of seven years imprisonment on the appellant, who was a first offender and whose stolen property (three chicken) was recovered the next day. The court held that the sentence was excessive and harsh in the circumstances, especially as...
Source-derived case information.
- Citation
- [2013] KEHC 3318 (KLR)
- Parties
- Appellant: Peter Etabo Irkole; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 33 of 2012
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- sentence set aside and substituted with term already served; appellant to be released forthwith
- Legal Topics
- Sentencing Principles, First Offender, Proportionality of Sentence, Handling Stolen Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Etabo Irkole
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive and harsh given the circumstances of the offence.
- 2 Whether the trial court erred in imposing the maximum sentence on a first offender where the stolen property was recovered.
Ratio Decidendi
The High Court found that the trial court erred in imposing the maximum sentence of seven years imprisonment on the appellant, who was a first offender and whose stolen property (three chicken) was recovered the next day. The court held that the sentence was excessive and harsh in the circumstances, especially as there were no aggravating factors and the appellant had no previous criminal record. The High Court substituted the sentence with a term equivalent to the period already served (one year and two months), ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
sentence set aside and substituted with term already served; appellant to be released forthwith
Orders
- The sentence of seven years imprisonment is set aside and substituted with a sentence of one year and two months, being the period already served.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
Criminal Appeal 33 of 2012 [if gte mso 9]><xml>
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PETER ETABO IRKOLE…………..………………...APPELLANT
VERSUS
REPUBLIC……………………………...…………..RESPONDENT
(From original conviction and sentence in Criminal Case No.2354 of 2011 of the Principal Magistrate’s Court at Nyahururu – V. K. KIPTOON, RM)
JUDGMENT
Peter Etabo Irkole was charged with the offence of breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code. He is alleged to have broken into a building on the night of 3rd and 4th December 2011 and stolen three chicken worth Kshs.1,500/- from therein.
In the alternative, he was charged with handling stolen goods contrary to Section 322(2) of the Penal Code. After a full trial, he was found guilty on the main charge was convicted and sentenced to seven years imprisonment.
The appellant filed an appeal challenging both the conviction and sentence. However, at the hearing of the appeal, he abandoned the appeal on conviction and only urged his appeal on sentence. His grounds of appeal were mere mitigation. He prayed that he is a family man with a wife and children; has no parents and that he has reformed during this period he has been in prison.
Mr. Chirchir, Learned Counsel for the State did not oppose the appeal on sentence. He submitted that taking into account the property that was stolen i.e. chicken, and the fact that they were recovered, the sentence, which was the maximum was too harsh.
Having considered all the circumstances under which the offence was committed in that the goods stolen were three chicken which were recovered in the possession of the appellant on the next day, I do agree that the sentence meted on the appellant was excessive and harsh. The appellant did not have any previous records. The trial court gave the appellant the maximum sentence despite the fact that the appellant had been treated as a first offender. The appellant was sentenced to a prison sentence on 16/2/2012. So far he has served one year and about 2 months. Having found the sentence to be harsh, I hereby set aside the sentence and instead substitute it with one year, two months, the term so far served. The appellant will therefore be set at liberty forthwith unless otherwise lawfully held.
DATED and DELIVERED this 26th day of April, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
The appellant present in person
Mr. Chirchir for the State
Stephen Mwnagi – Court Clerk
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