[2018] KEHC 7401 (KLR)
The court found that the sentence of 3 years imprisonment imposed on the appellant for housebreaking and stealing was within the statutory maximum of seven years and was not manifestly excessive or harsh. The appellate court reiterated that it would only interfere with a sentence if the trial court had acted on a...
Source-derived case information.
- Citation
- [2018] KEHC 7401 (KLR)
- Parties
- Appellant: Rashid Wandera Yusuf; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 44 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Sentencing Principles, Housebreaking, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Wandera Yusuf
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 3 years imprisonment for housebreaking and stealing was harsh and excessive.
- 2 Whether there were grounds for the appellate court to 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 housebreaking and stealing was within the statutory maximum of seven years and was not manifestly excessive or harsh. The appellate court reiterated that it would only interfere with a sentence if the trial court had acted on a wrong principle, overlooked a material factor, or if the sentence was manifestly excessive. Upon reviewing the record and the circumstances, the court found no such error or excessiveness and therefore upheld the sentence imposed by the trial court.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 44 OF 2017
RASHID WANDERA YUSUF.....................................APPELLANT
VERSUS
REPUBLIC.......................................................................REPUBLIC
(From the original conviction and sentence in Criminal case No. 1630 of 2017 of the Chief Magistrate’s Court at Busia by Hon. G.N Wakahiu– Chief Magistrate)
JUDGMENT
1. The appellant,RASHID WANDERA YUSUF, was convicted after he had pleaded guilty to a charge of house breaking and stealing contrary to section 304 (1) (b) as read with section 279 (b) of the Penal Code.
2. The particulars of the offence were that on 13th October 2017 at HIGH ROCK estate in BUSIA Township Location ofBUSIA County, jointly with others not before the court, broke and entered the dwelling house of PETER KIMATHI KIVUVOwith intent to steal and did steal from therein a TV set valued at Kshs. 9, 000/= the property of the said PETER KIMATHI KIVUVO.
3. He was sentenced to serve 3 years imprisonment.
4. The appellant was in person. He appealed against the sentence which he contended was harsh and excessive.
5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.
6. It is trite law of practice that an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances. These circumstances were well illustrated in the case of NILSSON VS REPUBLIC [1970] E.A. 599,601 as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.
7. The penalty for the offence under section 304 (1) of the Penal Code is provided as follows:
(1) Any person who—
(a) …
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.
8. In the instant case I do not find any circumstance to warrant my interference with the sentence nor can the sentence be described as excessive and harsh.
The upshot of the foregoing analysis of the evidence on record is that the appeal is bereft of merits and it is accordingly dismissed.
DELIVERED and SIGNED at BUSIA this 19th day of April, 2018
KIARIE WAWERU KIARIE
JUDGE