[2011] KEHC 3638 (KLR)
The court found that the appellants' plea of guilty was properly and procedurally taken, and the conviction was lawful. However, the sentence of seven years imprisonment was harsh and excessive given the minimal value of the stolen maize (Kshs. 3,300), the appellants' status as first offenders, and their early plea...
Source-derived case information.
- Citation
- [2011] KEHC 3638 (KLR)
- Parties
- Appellant: Philip Lumumba Laban; Appellant: John Ndome; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 236 & 237 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- JV Juma
- Legal Topics
- Stealing by Servant, Sentencing Principles, Plea of Guilty, Mitigation, First Offender, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Lumumba Laban
Appellant
John Ndome
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was properly and procedurally taken in accordance with the law.
- 2 Whether the sentence of seven years imprisonment was harsh and excessive given the circumstances, including the value of the stolen property and the appellants' status as first offenders.
- 3 Whether the appellants' mitigation and plea of guilty warranted a reduction of sentence.
Ratio Decidendi
The court found that the appellants' plea of guilty was properly and procedurally taken, and the conviction was lawful. However, the sentence of seven years imprisonment was harsh and excessive given the minimal value of the stolen maize (Kshs. 3,300), the appellants' status as first offenders, and their early plea of guilty. The court held that the period already served (about 12 months) was sufficient punishment. Consequently, the sentence was set aside and substituted with time already served, and the appellants were ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal against sentence is allowed.
- The seven-year sentence is set aside and substituted with time already served.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NOs. 236 & 237 OF 2010
(From Original Conviction and Sentence in Criminal Case No.183 of 2010 of the Principal Magistrate’s Court at Voi: Nyakundi L.M. – R.M.)
PHILIP LUMUMBA LABAN ………...……… 1ST APPELLANT
JOHN NDOME ……………………………… 2ND APPELLANT
VERSUS
REPUBLIC ............................................................... RESPONDENT
JUDGEMENT
The two Appellants PHILLIP LUMUMBA LABAN (hereinafter referred to as the 1st Appellant) and JOHN NDOME (hereinafter referred to as the 2nd Appellant) have both filed this appeal against their conviction and sentence by the learned Resident Magistrate sitting at Voi Law Courts. Both Appellants were arraigned before the trial court on 2nd March 2010 charged with STEALING BY SERVANT CONTRARY TO SECTION 281 OF THE PENAL CODE. They both pleaded guilty by admitting the charge. The facts were thereafter read out by the prosecutor as is required by law. Each Appellant responded:-
“facts are correct”
thereby maintaining their plea of guilty. Indeed in his mitigation the 1st Appellant confirmed his plea of guilty by saying:
“I pray for leniency. We sold the maize because we had not been paid”
The plea was properly and procedurally taken and the conviction rendered in accordance with S. 207(2) of the Criminal Procedure Code was sound. The proceedings were conducted in Kiswahili which both Appellants by their own admission understood. The fact that they both actively participated in the proceedings is proof that they did comprehend the proceedings. I am satisfied that the conviction of both was proper and lawful and I do uphold the same.
The trial magistrate did allow both Appellants an opportunity to mitigate after which he sentenced each to serve seven (7) years imprisonment. This sentence was in my view harsh and excessive given the circumstances of the case. The court awarded the maximum penalty yet both accuseds were certified to be first offenders. The value of the stolen maize was minimal Kshs.3,300/-. The court ought to have considered the fact that the two Appellants pleaded guilty at the outset thus saving the court from an unnecessary trial. The 2 Appellants have been in prison since March 2010 a period of about 12 months. This in my view is sufficient punishment for the crime and I have no doubt that they have now seen the error of their ways. I therefore allow the appeal against sentence. The 7 year sentence is hereby set aside and substituted with time already served. Both Appellants to be set free forthwith unless otherwise lawfully held.
Dated and Delivered at Mombasa this 10th day of March 2011.
M. ODERO
JUDGE
In the presence of:
Both Appellants in person
Mr. Muteti for State