[2013] KEHC 1558 (KLR)
The court found that the offence for which the appellant was convicted is a misdemeanour under section 323 of the Penal Code. Section 36 of the Penal Code limits the punishment for misdemeanours, where no specific penalty is provided, to a maximum of two years imprisonment or a fine or both. The sentence of seven...
Source-derived case information.
- Citation
- [2013] KEHC 1558 (KLR)
- Parties
- Appellant: Mwanzia Mutisya; Respondent: Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 134 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction upheld; sentence set aside; appellant released unless otherwise lawfully held.
- Judges
- BT Jaden
- Legal Topics
- Possession of Suspected Stolen Property, Sentencing, Misdemeanour Classification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanzia Mutisya
Appellant
Republic of Kenya
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for possession of suspected stolen property was lawful under section 323 of the Penal Code.
- 2 Whether the offence charged is a misdemeanour and the appropriate punishment under the law.
Ratio Decidendi
The court found that the offence for which the appellant was convicted is a misdemeanour under section 323 of the Penal Code. Section 36 of the Penal Code limits the punishment for misdemeanours, where no specific penalty is provided, to a maximum of two years imprisonment or a fine or both. The sentence of seven years imprisonment imposed by the trial court was therefore unlawful. As the appellant had already served more than two years in prison, the court allowed the appeal and ordered the appellant's release unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction upheld; sentence set aside; appellant released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The sentence of seven 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 MACHAKOS
CRIMINAL APPEAL NO. 134 OF 2010
VERSUS
MWANZIA MUTISYA ……………………………………….… APPELLANT
(Being an appeal from the conviction and sentence of E. Juma Osoro SRM delivered on 11/6/2010 in Kitui Principal Magistrate Criminal Case No. 443 of 2010)
************************************
(Before Hon. B. Thuranira Jaden J)
J U D G M E N T
The Appellant, Mwanzia Mutisya, was charged with the offence of being in possession of suspected stolen property contrary to section 323 of the Penal Code.
The particulars of the offence were that on the 8th day of June 2010 at about 1. 00 p.m. at Kalundu market, Kalundu Sub-location, Township location in Kitui District of the Eastern Province, was found in possession of 1 Kenya Power blue overall and 25 metres of service line cables reasonably suspected to have been stolen or unlawfully obtained.
When the Appellant was arraigned in court on 11/6/10, he pleaded guilty to the charge. The Appellant was convicted and sentenced to serve seven (7) years imprisonment.
The Appellant appealed to this court on the grounds that the sentence imposed was harsh and cruel.
The appeal was not opposed by the State. It was submitted that the offence is a misdemeanour.
Section 323 of the Penal Code provides that the offence of being in possession or conveying suspected stolen property is a misdemenour.
Section 36 of the Penal Code provides as follows:-
“When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.”
The sentence of seven (7) years is therefore unlawful. The Appellant has already served a prison term of more than two years. The appeal has merit and is allowed. The Appellant is at liberty unless otherwise lawfully held.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 7thday of October 2013.
………………………………………
B. THURANIRA JADEN
JUDGE