[2022] KEHC 15807 (KLR)
The High Court found that the trial magistrate erred by imposing the maximum sentence for stealing on the appellant without evidence of aggravating circumstances or proof that the appellant was a repeat offender. The court held that the trial court took into account irrelevant considerations by relying on...
Source-derived case information.
- Citation
- [2022] KEHC 15807 (KLR)
- Parties
- Appellant: Republic; Respondent: Boniface Mwenda
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E161 of 2021
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence substituted
- Judges
- TW Cherere
- Legal Topics
- Sentencing Principles, Stealing Offences, Judicial Discretion, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Boniface Mwenda
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in imposing the maximum sentence for stealing on the appellant.
- 2 Whether the trial magistrate considered irrelevant factors or failed to consider relevant factors in sentencing.
- 3 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The High Court found that the trial magistrate erred by imposing the maximum sentence for stealing on the appellant without evidence of aggravating circumstances or proof that the appellant was a repeat offender. The court held that the trial court took into account irrelevant considerations by relying on unsubstantiated allegations of repeat offending. As a result, the appellate court substituted the three-year sentence with the period already served, emphasizing that maximum sentences should not be imposed on first offenders in the absence of aggravating factors and that sentencing discretion must be exercised judiciously and based on material before the court.
Court Disposition
appeal allowed in part; sentence substituted
Orders
- The sentence of three years' imprisonment is substituted with the period already served by the appellant.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Mwenda (Criminal Appeal E161 of 2021) [2022] KEHC 15807 (KLR) (1 December 2022) (Judgment)
Neutral citation: [2022] KEHC 15807 (KLR)
Republic of Kenya
In the High Court at Meru
Criminal Appeal E161 of 2021
TW Cherere, J
December 1, 2022
Between
Republic
Appellant
and
Boniface Mwenda
Respondent
(Being an appeal against conviction and sentence in Meru Chief Magistrate’s Court Criminal No E289 of 2021 by Hon T M Mwangi (SRM) on March 25, 2021)
Judgment
1. Appellant was on March 25, 2021 sentenced to serve 3 years’ imprisonment for the offence of stealing contrary to section 268(1) as read with Section 275 of the Penal Code.
2. Appellant is aggrieved by the sentence which he says is not commensurate to the offence.
3. This court takes cognizance of the fact that it cannot interfere with the exercise of discretion by the trial magistrate’s court when sentencing the Appellant. In Bernard Kimani Gacheru v Republic, Cr App No 188 of 2000 the Court of Appeal stated thus:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. (See also Wanjema v Republic [1971] E.A.493. ”
4. The Court of Appeal inAhamad Abolfathi Mohammed & another v Republic [2018] eKLR held at Page 25 of its judgment as follows:“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle, ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive.
5. Appellant was sentenced to serve the maximum sentence for stealing. The Criminal Procedure Bench Bookat page 116 provides that:“The sentences imposed should be geared towards achieving the following objectives set out in the sentencing policy guidelines (paragraph 4. 1):i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Incapacitating the offender.vi.Denouncing the offence, on behalf of the community”.
6. At the very same page, at paragraph 24, the Bench Book states:“Generally, a maximum sentence should not be imposed on a first offender unless there are aggravating circumstances”.
7. Whereas it was alleged that Appellant was a repeat offender who had even served an imprisonment term, no material was placed before the court to support that allegation and I find that the trial magistrate erred when he took into account irrelevant considerations.
8. Appellant has already served 1 year and 8 months of the three-year sentence. It is hereby ordered that three years be substituted with the period already served.
DELIVERED AT MERU THIS 01stDAY OF December2022WAMAE. T. W. CHEREREJUDGEIn the presence of:Court Assistant - KinotiAppellant - In personFor the Respondent - Ms. Mwaniki