[2008] KEHC 1948 (KLR)
The court found that the sentence of 3 years imprisonment imposed on the appellant for the offence of robbery was legal, not manifestly harsh or excessive, and in fact lenient considering the maximum sentence is 14 years and the appellant was a repeat offender. The trial magistrate properly considered the...
Source-derived case information.
- Citation
- [2008] KEHC 1948 (KLR)
- Parties
- Appellant: Purity Wangui Wangari; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 210 of 2006
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal dismissed
- Judges
- MSA Makhandia, MM Kasango
- Legal Topics
- Sentencing Principles, Robbery, Appeals Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Purity Wangui Wangari
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 3 years imprisonment for robbery under section 296(1) of the Penal Code was harsh or excessive.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The court found that the sentence of 3 years imprisonment imposed on the appellant for the offence of robbery was legal, not manifestly harsh or excessive, and in fact lenient considering the maximum sentence is 14 years and the appellant was a repeat offender. The trial magistrate properly considered the appellant's previous conviction and the fact that the offence was committed shortly after release from prison. The appellate court held that there was no basis to interfere with the sentence as none of the grounds for appellate interference with sentencing discretion were established. The appeal on sentence was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal on sentence is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 210 of 2006
PURITY WANGUI WANGARI ………...…………APPELLANT
VERSUS
REPUBLIC ……………………………….…….. RESPONDENT
(Appeal form original Conviction and Sentence of the Resident Magistrate’s Court at Othaya in Criminal Case No.449 of 2006 by MUTUKU M.W. – RM)
J U D G M EN T
The appeal herein is limited to sentence only. The appellant was charged and convicted for the offence of robbery contrary to section 296 (1) of the Penal Code. Upon conviction she was sentenced to 3 years imprisonment. She was aggrieved by both the conviction and sentence. She therefore preferred this appeal setting out 5 grounds of appeal.
One of the grounds and which concern us in this appeal was that the sentence of 3 years imprisonment was too harsh. When the appeal came up for hearing, the appellant informed the court that she was no longer keen to pursue the appeal on both conviction and sentence. Rather she wished to abandon the appeal on conviction but pursue the appeal on sentence. Her wish was granted, Mr. Orinda learned Principal State Counsel not objecting to the same.
In support of the appeal on sentence, the appellant submitted that the sentence of 3 years imposed on him was harsh and excessive. On his part, Mr. Orinda opposed the appeal saying that the sentence of 3 years was neither harsh nor excessive.
Sentencing being an exercise in discretion save for statutory maxima offences such as murder and or robbery with violence, an appellate court will rarely interfere with such exercise unless it is demonstrated that in arriving at the sentence, the sentencing court;
(i)Acted capriciously and not judicially.
(ii)Imposed an illegal sentence
(iii)Imposed a manifestly harsh and illegal sentenced
(iv)Acted on wrong principle, and
(v)Failed to take into account correct principles.
See generally Ogola S/O Owuora V Republic (1954) 19 EACA 270, Nilson V Republic (1970) EA 599 and Wanjema V Republic (1971) EA 493.
The appellant herein was convicted for the serious offence of robbery contrary to section 296(1) of the Penal Code. That offence carries a maximum sentence of 14 years. Yet the appellant was only sentenced to 3 years imprisonment. There is no doubt therefore that the sentence was legal and not manifestly harsh and or excessive. Infact it was extremely leniently considering further that the appellant was not a first offender. According to the records of the appellant produced by the prosecutor she had earlier on been convicted in Criminal Case number 571/04 in the same Court and sentenced to serve 12 months imprisonment. This was way back on 24th June, 2005. The offence giving rise to this appeal was committed on 10th May, 2006, hardly a month after she had been released.
The learned Magistrate took this aspect of the matter into account and rightly so in my view. She committed the offence immediately after her release which is indictment to our penal system. Clearly the appellant had shown no signs of reform for the period she was in jail for the earlier offence.
Indeed the appellant was lucky this time around for being charged with the offence of simple robbery. In my view she ought to have been charged with the more serious and capital offence of robbery with violence. In robbing the complainant, the appellant was in the company of two other people. They also inflicted injuries to the complainant if the evidence of PW3, Dr. Munene who attended to the complainant following the robbery and filled his P3 form was anything to go by. There was therefore overwhelming evidence to support two of the three ingredients of robbery with violence. See Johana Ndungu V Republic, CR.APP. No.116 of 1995 (unreported). There was absolutely no reason why the appellant was not charged with capital robbery.
The appellant having benefited from the deliberate and or inadvertent error on the part of the prosecution in preferring a lesser charge, she should be contend and thank her God for the small mercies.
The appeal on sentence has no merit. Accordingly it is dismissed.
Dated and delivered at Nyeri this 30th day of June, 2008.
M.S.A. MAKHANDIA
JUDGE
Delivered by;
MARY KASANGO
JUDGE