[2018] KEHC 3568 (KLR)
The court found that the sentence of seven years imprisonment imposed on the appellant, a first offender, was manifestly excessive given that all the stolen sheep were recovered and no violence was used during the commission of the offence. The court held that it was entitled to interfere with the sentence and...
Source-derived case information.
- Citation
- [2018] KEHC 3568 (KLR)
- Parties
- Appellant: Peter Ndonga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 27 of 2016
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal against sentence allowed in part; sentence reduced.
- Judges
- DW Mbuteti
- Legal Topics
- Stealing Stock, Sentencing Principles, Penal Code Section 278
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndonga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of seven years imprisonment for stealing stock was manifestly excessive given the circumstances.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The court found that the sentence of seven years imprisonment imposed on the appellant, a first offender, was manifestly excessive given that all the stolen sheep were recovered and no violence was used during the commission of the offence. The court held that it was entitled to interfere with the sentence and substituted it with a sentence of four years imprisonment effective from the original sentencing date. The appeal against sentence therefore succeeded to the limited extent of the reduction in sentence.
Court Disposition
Appeal against sentence allowed in part; sentence reduced.
Orders
- The sentence of seven years imprisonment is set aside and substituted with four years imprisonment effective 11th December, 2014.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
CRIMINAL APPEAL NO 27 OF 2016
PETER NDONGA..............................APPELLANT
VERSUS
REPUBLIC.......................................RESPONDENT
(Appeal from original sentence dated 11/12/2014 in Nanyuki CM Criminal Case No 443 of 2014 – E Bett , SRM)
J U D G M E N T
1. The Appellant herein, PETER NDONGA, was convicted after trial of stealing stock contrary to section 278 of the Penal Code. It was alleged in the particulars of offence in the charge that on 5th May, 2014 at Kaburuini Village within Nyeri County he stole sixteen (16) sheep valued at KShs 64,000/00, the property of one Benjamin Magu. On 11th December 2014 he was sentenced to seven (7) years imprisonment. He has appealed against sentence only.
2. I have considered the submissions of the Appellant (who is unrepresented) and those of the learned prosecution counsel. I have also perused the record of the trial court.
3. The offence the Appellant stood convicted of carries a maximum sentence of fourteen (14) years imprisonment. He got only half of that. However, I note that all the sheep that he had stolen were recovered. There was also no violence against any person or property used during commission of the offence.
4. The Appellant has also pleaded that he is now a reformed person, and that he has been trained as a carpenter in prison and will be able to earn an honest living once he leaves prison. That notwithstanding, this court has no jurisdiction to exercise mercy. That is a function of the executive.
5. I have looked at all the circumstances of this case. I consider that the sentence of seven (7) years imprisonment meted out to the Appellant who was a first offender was manifestly excessive. This court is entitled to interfere. I will set aside the sentence of seven (7) years imprisonment and substitute therefor four (4) years imprisonment effective 11th December, 2014. To that limited extent only does the Appellant’s appeal against sentence succeed. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 11TH DAY OF OCTOBER 2018
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 11TH DAY OF OCTOBER 2018