[2020] KEHC 2348 (KLR)
The court found that the appellant, a first offender, had been sentenced to two years imprisonment for stealing a modest sum of Ksh.5,300, which was on the higher side given the circumstances. The appellant had already served a substantial portion of the sentence, and with remission, had effectively completed the...
Source-derived case information.
- Citation
- [2020] KEHC 2348 (KLR)
- Parties
- Appellant: Peter Olenanguris; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 58 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to time served; appellant to be released forthwith
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Principles, Theft Offences, Mitigation, Prison Decongestion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Olenanguris
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for the offence of stealing was excessive in the circumstances.
- 2 Whether the appellant is entitled to a reduction of sentence based on time already served and prevailing policy considerations.
Ratio Decidendi
The court found that the appellant, a first offender, had been sentenced to two years imprisonment for stealing a modest sum of Ksh.5,300, which was on the higher side given the circumstances. The appellant had already served a substantial portion of the sentence, and with remission, had effectively completed the custodial term. The court also considered the prevailing policy to decongest prisons during the COVID-19 pandemic. Consequently, the court exercised its discretion under section 354(3)(b) of the Criminal Procedure Code to reduce the sentence to the period already served, finding this to be just and appropriate in the circumstances.
Court Disposition
sentence reduced to time served; appellant to be released forthwith
Orders
- The sentence imposed on the appellant is reduced to the time already served.
- The appellant shall be released from custody forthwith.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CRIMINAL APPEAL NO. 58 OF 2019
PETER OLENANGURIS........................................APPELLANT
=VERSUS=
REPUBLIC............................................................RESPONDENT
[An appeal from the original conviction and sentence of the Senior Principal Magistrate’s Court at Kabarnet Criminal Case no.496 of 2018 delivered on the 8th October, 2019 Hon. S. O. Temu, PM]
JUDGMENT
Introduction
1. The appellant was upon conviction for the offence of stealing contrary to section 268 as read with section 275 of the Penal Code, sentenced to two (2) years imprisonment from the 8th October 2019. The particulars of the offence were that the appellant had “On the 7th day of June 2018 at 1335hrs, Marigat Township, Baringo South Sub-County, within Baringo County stole Ksh5300/= by withdrawing the same money from M-pesa account of one PETER KARANJA GATHIAKA.”
Appeal from sentence
2. The appellant by his “Mitigation” Appeal now seeks a reduction of the sentence on appeal. At the hearing of the appeal, the appellant confirmed that he does not challenge the finding of guilty by the trial court.
3. Mr. Abwajo, Prosecution Counsel for the DPP does not object to the reduction of the sentence as requested by the appellant noting that the appellant has substantially served his two-year sentence, having been in actual custody for one (1) year two weeks as at the date of the Judgment, and is due for release on 8th February 2021.
Determination
4. The appellant has been in custody for one-year two weeks which is equal to substantial performance, with remission, of the two-year sentence (actual custody of one (1) year four (4) months) by the trial court. The general punishment for theft under section 275 as read with section 268 of the Penal Code is three (3) years and a sentence of two years for a first offender who steals a modest sum of money at Ksh.5,300/- is clearly on the higher side.
5. The court also accepts the obligation to assist in the implementation of the National Council for the Administration of Justice (NACJ) policy to decongest the Prisons during the COVID-19 pandemic. For that reason and as the appellant has substantially served the two-year sentence, the sentence shall be reduced appropriately.
Orders
6. Accordingly, for the reasons set out above, the court makes the following orders on the appellant’s appeal herein:
1. The sentence imposed on the appellant is, pursuant to section 354 (3) (b) of the Criminal Procedure Code, reduced to the time that he has already served.
2. The appellant shall be released from custody forthwith.
Order accordingly.
DATED AND DELIVERED THIS 22ND DAY OF OCTOBER 2020.
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Mr. Abwajo, Prosecution Counsel for the Respondent.