[2015] KEHC 7988 (KLR)
The court found that although the offence of stealing a motor vehicle is serious and warrants a deterrent sentence, the Applicant was a first offender and the stolen vehicle was recovered. The trial court failed to consider the absence of previous convictions and the recovery of the vehicle, which are mitigating...
Source-derived case information.
- Citation
- [2015] KEHC 7988 (KLR)
- Parties
- Applicant: Republic; Respondent: Peter Kariuki Rurithi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 210 of 2015
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- sentence revised; custodial sentence set aside; fine imposed with default imprisonment
- Legal Topics
- Stealing Motor Vehicle, Sentencing Principles, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Peter Kariuki Rurithi
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the sentence imposed on the Applicant was harsh and excessive in the circumstances.
- 2 Whether the Applicant, as a first offender, ought to have been given the option of a fine instead of a custodial sentence.
- 3 Whether the trial court properly exercised its discretion in sentencing.
Ratio Decidendi
The court found that although the offence of stealing a motor vehicle is serious and warrants a deterrent sentence, the Applicant was a first offender and the stolen vehicle was recovered. The trial court failed to consider the absence of previous convictions and the recovery of the vehicle, which are mitigating factors. Therefore, the sentence of five years imprisonment was excessive. The court exercised its revisionary jurisdiction to set aside the custodial sentence and substitute it with a fine, with a default custodial term, to reflect the mitigating circumstances.
Court Disposition
sentence revised; custodial sentence set aside; fine imposed with default imprisonment
Orders
- The sentence imposed by the trial court is set aside.
- The Applicant is sentenced to pay a fine of Kshs. 150,000/= in default, to serve 12 months imprisonment effective the date of sentencing of the trial court.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 210 OF 2015
REPUBLIC……………………..………………...…………APPLICANT
VERSUS
PETER KARIUKI RURITHI…….…………….…………….RESPONDENT
(From the original conviction and sentence in Criminal Case No. 1715 of 2013 from the Chief magistrate’s Court at Kibera by the Resident Magistrate Hon. C. Ondieki, delivered on 8th August, 2014)
RULING
This file was forwarded to this court pursuant to Section 362 of Criminal Procedure Code, so that the Court can satisfy itself as to correctness, legality and/or propriety of the sentence imposed to the Applicant in the Chief Magistrate’s Court at Kibera Criminal Case No. 1715 of 2013.
The Applicant was charged alongside two others with the offence of stealing contrary to Section 268(1) as read with Section 278 A of the Penal Code. The particulars of the offence were that on the 25th May, 2013 at Kiserian area in Kajiado County, jointly with others not before court stole a motor vehicle make Toyota Hiace registration No. KBL 155X valued at Kshs. 1,000,000/= the property of Ayub Ngugi John.
The Applicant together with his co-accused were found guilty and were each sentenced to serve five years imprisonment.
By Chamber Summons filed in court on 23rd September, 2015, he urges the court to reduce the sentence as the same was harsh in the circumstances and ought to have been given the option of a fine.
Under Section 278(A) of the Penal Code, if a person is found guilty of stealing a motor vehicle, he is liable to imprisonment for seven (7) years.
The record of proceedings shows that no record of previous convictions was placed before the court in respect of the Applicant. The court then ought to have treated him as a first offender. The offence was serious and given that the Applicant was found red-handed in possession of the vehicle, a deterrent sentence was necessary. However, I note that besides the Applicant being a 1st offender, the vehicle was recovered. The court should then have explored the need for sentencing the accused persons to a fine with a default sentence.
In the result, the sentence imposed by the trial court is set aside. I substitute it with an order that the Applicant be and is hereby sentenced to pay a fine of Kshs. 150,000/= in default, serve 12 months imprisonment effective the date of sentencing of the trial Court.
DATED and DELIVERED this 24th day of November, 2015.
G.W. NGENYE-MACHARIA
JUDGE