[2017] KEHC 6279 (KLR)
The High Court found that while the offence of stealing goods in transit is serious and carries a maximum sentence of fourteen years, the trial court did not give sufficient weight to the appellant's antecedents as a first offender and his personal mitigating circumstances. Although the value of the stolen goods was...
Source-derived case information.
- Citation
- [2017] KEHC 6279 (KLR)
- Parties
- Appellant: Robert Sanila Kihima; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 19 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- CW Meoli
- Legal Topics
- Sentencing Principles, Stealing Goods in Transit, Appeal on Sentence, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Sanila Kihima
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was harsh and excessive in the circumstances.
- 2 Whether the trial court considered all relevant mitigating factors before sentencing.
Ratio Decidendi
The High Court found that while the offence of stealing goods in transit is serious and carries a maximum sentence of fourteen years, the trial court did not give sufficient weight to the appellant's antecedents as a first offender and his personal mitigating circumstances. Although the value of the stolen goods was high and they were never recovered, the sentence of seven years was deemed not to sufficiently recognize the appellant's clean record and responsibilities. The court therefore exercised its discretion to interfere with the sentence, reducing it to five years imprisonment from the date of the original sentencing.
Court Disposition
sentence varied
Orders
- The sentence of seven years imprisonment is set aside and substituted with a sentence of five years imprisonment from 19th June 2014.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
CRIMINAL APPEAL NO. 19 OF 2015
(Formerly Nakuru HC.CR.A. No. 145 of 2014)
(Being an Appeal from Original Conviction and Sentence in Criminal Case No. 3459 of 2012 of the Chief Magistrate’s Court at Naivasha – S. Muchungi, RM)
ROBERT SANILA KIHIMA...………………….…………………………….……...APPELLANT
VERSUS
REPUBLIC………………………………………………………………………...RESPONDENT
J U D G M E N T
1. The Appellant herein was the 2nd Accused in the lower court case. He was charged jointly with another with the offence of Stealing goods in transit, contrary to Section 279 (c) of the Penal Code. In that on the 6th day of November 2012 at Maai Mahiu Town, Maai Mahiu location in Nakuru County, jointly with others not before court, they stole 1570 twenty litre jerricans of Pomo Palm oil valued at 3. 9 million the property of Transfer Kenya Limited from a motor vehicle registration number KBQ 688R Trailer transit from Mombasa to Kampala.
2. Following a full trial, he was convicted and sentenced to serve seven years imprisonment. His co-accused in the trial was acquitted.
3. In his amended grounds of appeal, the Appellant only attacks the sentence and citing his personal circumstances and especially his previous clean record, he describes the sentence as “harsh and lengthy.”
4. Mr. Koima, representing the Director of Public Prosecution opposed the appeal. Highlighting the substantial loss occasioned to the complainant as a result of the offence and the Appellant’s conduct demonstrated by the evidence at the trial, Mr. Koima submitted that the sentence was not excessive.
5. I have considered the rival submissions and the evidence on record. The circumstances in which an appellate court may interfere with the sentence meted out by the trial court are governed by settled principles, and not based on the whims of the appellate court.
6. In the case of Ogalo s/o Owuora –Vs- Republic [1954] 19 EACA 270, it was stated:-
“(1). The Court does not alter a sentence on the mere ground that if the member of the Court had been trying the Appellant, he might have passed a somewhat different sentence, and it would not ordinarily interfere with the discretion exercised by the trial Magistrate unless it is evident that the Magistrate acted upon some wrong principles or overlooked some material factors. (See also JAMES VS REPUBLIC (1950) 10 EACA 147)
(2). The test criterion is that if the sentence is manifestly excessive in view of the circumstances of the case, the sentence will be disturbed. The Appellate Court should not interfere with the sentence of a lower Court unless it is satisfied that the same was so severe as to amount to a miscarriage of justice. (SEE NILSON VS REPUBLIC (1970) EA 599).”
7. And further in Wanjema -Vs- Republic (1971) EA 493, the court stated:-
“[The] Appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
8. The Appellant was treated as a first offender. In his mitigation he laid before the court his personal circumstances, also repeated here, dwelling on his responsibilities towards his dependents. These matters were considered by the court as reflected in the notes before sentence, as well as the fact, that the stolen goods which had a high value, were never recovered.
9. In my view these were all relevant considerations. The offence for which the Appellant was convicted carries a maximum of fourteen years imprisonment. Although the Appellant was a key architect of the theft of his employer’s goods, he could not have acted alone, as the charge sheet indicates. Indeed the police believed the driver of the vehicle was also an accomplice.
10. The age of the Appellant was not indicated to the court. Whatever the case, the sentence meted out does not seem to recognize the fact, or give sufficient weight to the Appellant’s antecedents. In the circumstances, this court would interfere with the sentence meted out by reducing it to a five years imprisonment from the date of sentencing, that is, 19th June 2014.
Delivered and signed at Naivasha, this28thday ofApril, 2017.
In the presence of:-
Mr. Mutinda for the DPP
Appellant – present
C/C – Quinter Ogutu
C. MEOLI
JUDGE