[2004] KEHC 2586 (KLR)
The court found that while the appellant was not a first offender and had committed the offence while on probation, the five-year custodial sentence imposed by the trial court was excessive given the circumstances, including the value of the stolen items and the appellant's plea for forgiveness. The court held that...
Source-derived case information.
- Citation
- [2004] KEHC 2586 (KLR)
- Parties
- Appellant: Republic; Respondent: Isaac Bogeni Machenge
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 3 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Legal Topics
- Sentencing Principles, Recidivism, Probation Violation, Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Isaac Bogeni Machenge
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years imprisonment imposed on the appellant was excessive in the circumstances.
- 2 Whether the appellant's status as a repeat offender justified a harsher sentence.
Ratio Decidendi
The court found that while the appellant was not a first offender and had committed the offence while on probation, the five-year custodial sentence imposed by the trial court was excessive given the circumstances, including the value of the stolen items and the appellant's plea for forgiveness. The court held that a custodial sentence was appropriate due to the appellant's recidivism and breach of probation, but the sentence should be reduced to reflect proportionality and fairness. Accordingly, the sentence was set aside and substituted with a term of 12 months imprisonment.
Court Disposition
sentence varied
Orders
- The sentence of five years imprisonment is set aside.
- The appellant is sentenced to 12 months imprisonment.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII.CRIMINAL APPEAL NO.3 OF 2004(From original conviction and sentence of the Chief Magistrate’s Court at Kisii in Criminal Case No.3093 of 2003 –S. M. S. SOITA ESQ., P.M)
REPUBLIC …………………………………………………………….. APPELLANT
VERSUSISAAC BOGENI MACHENGE …………………………………… RESPONDENT
JUDGMENT
Appellant Isaac Bogani Machenge was charged with two others for the offence of Kitchen breaking and committing a felony c/s 306(a) Penal Code. The three pleaded guilty and wee convicted. Appellant was jailed for 5 years and his two accomplices jailed for 2 years which term was suspended for 6 months. Appellant now appeals against the sentence.
The appellant was on probation for 2 years for a similar offence when he committed the current one. This is what prompted the learned magistrate to hand him a term of five years. However even though he was not a first offender sentence of five years was harsh. He pleaded with the court for forgiveness. He readily admitted he was on probation. The value of the stolen items was shs.2,900/=. Though a custodial sentence was called for five years was on the higher side.
I therefore set aside the sentence of five years imprisonment and substitute it with one for 12 months imprisonment. It is so ordered. KABURU BAUNI JUDGE. 8/7/04 Signed, dated and delivered on 8th July 2004. KABURU BAUNI JUDGE.