[2003] KEHC 913 (KLR)
The court found that the trial magistrate erred by failing to consider the favourable probation officer's report when sentencing the appellant, who was a first offender and had already served a substantial period in custody. Given the low value of the stolen property and the appellant's circumstances, the period...
Source-derived case information.
- Citation
- [2003] KEHC 913 (KLR)
- Parties
- Appellant: Peter Ndungu Kibunyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 525 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; sentence varied
- Legal Topics
- Sentencing, Stealing From Person, Probation Report, First Offender, Corporal Punishment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndungu Kibunyi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was appropriate given the appellant was a first offender and the subject matter was of low value.
- 2 Whether the trial magistrate erred by not considering the probation officer's report which was favourable to the appellant.
Ratio Decidendi
The court found that the trial magistrate erred by failing to consider the favourable probation officer's report when sentencing the appellant, who was a first offender and had already served a substantial period in custody. Given the low value of the stolen property and the appellant's circumstances, the period already served was deemed sufficient punishment. The sentence was set aside and substituted with the period already served, with the appellant to receive one stroke of the cane and be released unless otherwise lawfully held.
Court Disposition
appeal allowed; sentence varied
Orders
- The sentence imposed by the trial magistrate is set aside and substituted with the period already served.
- The appellant shall receive one stroke of the cane.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 525 OF 2002 From Original Conviction and sentence in Criminal Case No. 204 of 2002 of The Snr. Resident Magistrate’s Court at Kikuyu PETER NDUNGU KIBUNYI…………………………..…….APPELLANT VERSUS REPUBLIC…………………………………………………..RESPONDENT J U D G M E N T
The appellant pleaded guilty to the offence of stealing from a person c/s 279(a) of The Penal Code and on conviction he was sentenced to 24 months imprisonment with 4 strokes of the cane.
This appeal is against sentence only. The appellant was a first offender. The subject mater was kshs. 600/-. He is an orphan. The learned trial magistrate had asked for a probation officers report. This was prepared and presented to the court. However the said report was never referred to by the learned trial magistrate in her note on sentencing.
I note that the probation officer’s report was favourable to the appellant and no reason exists why he was not given that chance.
From the date he first appeared in court i.e. 12/2/2000 to date the appellant has not been free. He was sentenced on 6th May, 2002 which to date works up to about 8 months. The total period of incaceration is however about one year. I consider this sufficient punishment.
Accordingly this appeal is allowed by setting aside the sentence imposed by the learned trial magistrate and substituting the same with the period already served by the appellant. He shall receive one stroke of the cane.
Thereafter he shall be released from prison unless otherwise lawfully held.
Orders accordingly.
Dated and delivered at Nairobi this 29th day of January, 2003. MBOGHOLI MSAGHA JUDGE