[2014] KEHC 925 (KLR)
The court found that the plea entered by the appellant was unequivocal and that the trial magistrate followed the correct procedure. However, the sentence of three years imprisonment was deemed harsh and excessive given the value of the damaged property (KShs. 5,000), the familial relationship between the appellant...
Source-derived case information.
- Citation
- [2014] KEHC 925 (KLR)
- Parties
- Appellant: Phillemon Kipkorir Bore; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 35 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction confirmed, sentence substituted with probation
- Legal Topics
- Malicious Damage to Property, Plea Equivocality, Sentencing Principles, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phillemon Kipkorir Bore
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea entered by the appellant was unequivocal and in compliance with legal requirements.
- 2 Whether the sentence of three years imprisonment was harsh and excessive in the circumstances.
- 3 Whether the trial court erred in relying on the probation officer's report for sentencing.
Ratio Decidendi
The court found that the plea entered by the appellant was unequivocal and that the trial magistrate followed the correct procedure. However, the sentence of three years imprisonment was deemed harsh and excessive given the value of the damaged property (KShs. 5,000), the familial relationship between the appellant and the complainant (his mother), and the fact that the appellant had already served a significant portion of the sentence. The court noted that the trial magistrate had considered a non-custodial sentence but was influenced by an unfavorable probation report. Balancing the interests of justice, the court confirmed the conviction but set aside the custodial sentence,...
Court Disposition
conviction confirmed, sentence substituted with probation
Orders
- The conviction is confirmed.
- The sentence of three years imprisonment is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CRIMINAL APPEAL NO. 35 OF 2014
PHILLEMON KIPKORIR BORE…………...…APPELLANT
VERSUS
REPUBLIC………………....………………….....RESPONDENT
JUDGMENT
Philemon Kipkorir Bore, the appellant was charged and convicted of the offence of malicious damage to property contrary to Section 339(1) of the Penal Code.
According to the particulars the damaged property was a window and a timber wall of a house valued at Shs.5,000/=. Further the complainant is the appellant’s mother.
He was convicted on admission and sentenced to three (3) years imprisonment.
His appeal raises the following grounds;
That, the trial Magistrate erred in both law and in fact by failing to satisfy himself that the plea was totally unequivocal and that the appellants understood the element of the offence and their penalty.
That, the sentence awarded was harsh and excessive in all circumstances to the appellant and the case before court.
That, the sentence was convicted on probation officers report which contradicted prosecution submission that appellant was first offender.
That, the appellant herein pray this court to allow the appeal set aside the sentence or in the alternative the appellant be placed on probation.
I have perused the lower court record and I am satisfied that the plea was unequivocal. The necessary procedure was followed to the later.
The appellant’s main complaint is on the sentence mated out to him. The record shows that the learned trial magistrate called for a Probation Officer’s Report which was found to be unfavourable. This clearly shows that the learned trial magistrate had been minded to give the appellant a non-custodial sentence.
Considering what was destroyed and it’s value and the relationship between the complainant and the appellant the sentence of 3 years was too harsh. The Probation Officer’s Report revealed the dark side of the appellant and he is asked to change.
The appellant was convicted and sentenced on 4th June 2014. He has already served 7½ months of the sentence of 3 years which would have been lesser with remission by the Prisons. He must have learnt his lessons.
I therefore confirm the conviction but allow the appeal on sentence. The sentence of 3 years imprisonment is set aside. I substitute it with one of three(3) years on probation from the date of sentence. The conditions are clearly spelt out to the appellant to the effect that if he commits any offence during the Probation term he will be brought back here for completion of the prison term.
The Appellant will be released unless otherwise held under a separate warrant.
Dated, signed and delivered this 19th day of December, 2014
H.I. ONG’UDI
JUDGE
In the presence of: