[2010] KEHC 3170 (KLR)
The appellate court found that the sentence of five years for house breaking and one year for stealing, to run concurrently, was within the statutory limits and justified by the circumstances of the offence. The court held that there was no basis to interfere with the trial court's exercise of discretion as the...
Source-derived case information.
- Citation
- [2010] KEHC 3170 (KLR)
- Parties
- Appellant: Peter Kiarie Ndungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 350A of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- SP Ouko
- Legal Topics
- House Breaking, Stealing From Dwelling, Sentencing Principles, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kiarie Ndungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was harsh and excessive.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The appellate court found that the sentence of five years for house breaking and one year for stealing, to run concurrently, was within the statutory limits and justified by the circumstances of the offence. The court held that there was no basis to interfere with the trial court's exercise of discretion as the sentence was neither manifestly excessive nor unlawful. The appeal was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Appeal 350A of 2008
PETER KIARIE NDUNGU…….…...……………APPELLANT
VERSUS
REPUBLIC……………………………………..RESPONDENT
JUDGMENT
The appellant was convicted and sentenced to 5 years and 1 year imprisonment on his own plea of guilty for the offence of house breaking and stealing contrary to section 304(1) and 279(b) of the Penal Code.
He has challenged both the sentence and conviction on the following grounds:
i)that the exhibits were not recovered from him
ii)that the prosecution evidence was contradictory
iii)that the appellant was not at the scene of the crime
iv)that the investigating officer did not testify
At the hearing of the appeal, the appellant abandoned these grounds only arguing that the sentence was harsh and excessive. Learned counsel for the respondent did not object to the application to reduce the sentence.
The sentence for the offence of house breaking,a felony, is punishable with a prison term of seven years while the offence of stealing under section 279(b) attracts a sentence of fourteen years.
It is the offence of stealing from a dwelling house under section 279(b) that attracts a stiffer penalty than that of house breaking.
The learned trial magistrate ought to have considered this in passing the sentence. Be that as it may, sentence is an exercise of judicial discretion which an appellate court cannot lightly interfere with. An appellate court will interfere with the sentences of the trial court only if the sentence is manifestly excessive or if it is unlawful. None of this can be said of the sentence of five years and one year, to run concurrently. The circumstances of the offence justified such a sentence.
The appeal is dismissed.
Dated, Signed and Delivered at Nakuru this 5th day of March, 2010.
W. OUKO
JUDGE