[2018] KEHC 6190 (KLR)
The appellate court found that the sentence imposed by the trial magistrate was very lenient and that the only reason the appellant was ineligible for sentence review was the pendency of this appeal. Since the appeal was on sentence only and the report filed in court was otherwise favourable to the appellant, the...
Source-derived case information.
- Citation
- [2018] KEHC 6190 (KLR)
- Parties
- Appellant: Reslah Wekesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 34 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Judges
- KW Kiarie
- Legal Topics
- Sentencing Principles, Appeal on Sentence, Stealing Offences, Penal Code Section 275
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reslah Wekesa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was excessive or warranted interference by the appellate court.
- 2 Whether the appellant was eligible for sentence review based on the circumstances and the report filed.
Ratio Decidendi
The appellate court found that the sentence imposed by the trial magistrate was very lenient and that the only reason the appellant was ineligible for sentence review was the pendency of this appeal. Since the appeal was on sentence only and the report filed in court was otherwise favourable to the appellant, the court held that the appellant should benefit from the report. Consequently, the court ordered that the appellant serve the remainder of her sentence on community service at Busakala Primary School, allowing the appeal to that extent only.
Court Disposition
appeal_partially_allowed
Orders
- The appellant shall serve the remainder of her sentence on community service at Busakala Primary School.
- The appeal succeeds to the extent of substituting the custodial sentence with a community service order.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 34 OF 2017
RESLAH WEKESA......................................................APPELLANT
VERSUS
REPUBLIC.......................................................................REPUBLIC
(From the original conviction and sentence in Criminal case No. 160C of 2017 of the Chief Magistrate’s Court at Busia by Hon. J.N Maragia – Resident Magistrate)
JUDGMENT
1. The appellant,RESLAH WEKESA, was convicted after pleading guilty to four counts of stealing contrary to section 275 of the Penal Code.
2. The particulars of the offence in count one were that on 22nd March 2017 at UPLANDS estate, MALABA Township of BUSIA County, jointly with others not before court, stole one 6kg gas cylinder valued at Kshs.5700/= the property of NELLY HILDA OWOGA.In count two the facts were that that on 7th April 2017 at SOKONIarea, MALABA Township of BUSIA County,jointly with others not before court, stole one 6kg gas cylinder valued at Kshs.7150/= the property of DAMARIS MWENDE MUTUA.In count three the facts were that that on 8th February 2017 atUPLANDarea,MALABATownship ofBUSIACounty, jointly with others not before court, stole one 6kg gas cylinder valued at Kshs.5800/= the property ofGRACE NJERI KIBAKI,While in count four the facts were that that on 5th March 2017 atUPLANDestate,MALABATownship ofBUSIACounty, jointly with others not before court, stole one 6kg gas cylinder valued at Kshs.5800/= the property ofFIDELIS JULLY ATYANG.
3. She was sentenced to serve one year imprisonment. The sentences were ordered to run consecutively.
4. The appellant was in person. She appealed against the sentence only.
5. The state opposed the appeal through Mr. Omayo, learned counsel.
6. 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.
7. 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.
8. The sentence by the learned trial magistrate was very lenient.
9. The reason that made her ineligible for the sentence review according to the Report dated 2nd May 17, 2018 and filed in court was this appeal. Since the appeal was on sentence only, she can benefit for the other aspects of the report were favourable to her. I accordingly make an order that she serves the remainder of her sentence on C.S.Oat Busakala Primary School. Her appeal succeeds to that extent only.
DELIVEREDandSIGNEDatBUSIAthis29thdayof May, 2018
KIARIE WAWERU KIARIE
JUDGE