[2009] KEHC 3930 (KLR)
The court found that the trial magistrate failed to consider the appellant's mitigating circumstances, including his status as a first offender, his plea for forgiveness, and the fact that all stolen items were recovered. The five-year sentences imposed were therefore manifestly excessive. The appellate court held...
Source-derived case information.
- Citation
- [2009] KEHC 3930 (KLR)
- Parties
- Appellant: Salim Ali Mohammed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 57 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Mitigation, Plea of Guilty, First Offender, Immigration Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Salim Ali Mohammed
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years imprisonment imposed on the appellant was manifestly excessive in the circumstances.
- 2 Whether the trial magistrate failed to consider the appellant's mitigating circumstances before sentencing.
Ratio Decidendi
The court found that the trial magistrate failed to consider the appellant's mitigating circumstances, including his status as a first offender, his plea for forgiveness, and the fact that all stolen items were recovered. The five-year sentences imposed were therefore manifestly excessive. The appellate court held that the appropriate sentence should reflect the period already served, given the appellant had been in custody for over two years and had learned his lesson. The sentences of five years were set aside and substituted with sentences of imprisonment for the period already served. The order for repatriation to Tanzania remained undisturbed.
Court Disposition
appeal_allowed_in_part
Orders
- The sentences of five years imprisonment on count one are set aside and substituted with sentences of imprisonment for the period already served.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 57 of 2007
SALIM ALI MOHAMMED..……..….....………….………….APPELLANT
VERSUS
REPUBLIC………………………………………………..RESPONDENT
JUDGMENT
The appellant, Salim Ali Mohamed, was charged with the offences of Burglary and stealing contrary to Sections 304 (2) and 279 (b) of the Penal Code and for being unlawfully present in Kenya contrary to Section 3 (1) of the Immigration Act. The particulars of the 1st count were that the appellant, on 15th March 2007 at about 3. 30 a.m. at Jeza (B) area in Kwale District within Coast Province, broke and entered the dwelling house of David Mwanzia with intent to steal and did steal from therein a Sony radio cassette serial No. 0166954, a Sony DVD player serial No. 2090819, 2 pairs of leather shoes, 2 bed sheets, one Luxtar wristwatch, 1 CD disc, 1 torch and caper all valued at Kshs. 3,850/= the property of the said David Mwanzia. The particulars of the second count were that the appellant on 15th March 2007 at about 3. 30 a.m. at Jeza (B) area in Kwale District within Coast Province, being a Tanzanian, was found illegally present in Kenya without an immigration permit.
The appellant appeared before Ochenja, then a Senior Resident Magistrate on 19th March 2007 and pleaded guilty to both counts. The prosecution was however not ready with the facts of the case and the case was adjourned to 20th March 2007 for the same. Come that date, the Learned Senior Resident Magistrate reminded the appellant of the offences facing him but the appellant maintained his plea of guilty. The facts were then stated and the appellant was invited to react to the same upon which he informed the court that the facts were true. The Learned Senior Resident Magistrate then convicted the appellant on his own plea of guilty. The prosecution informed the court that the appellant be treated as a first offender. In mitigation, the appellant asked for forgiveness. The Learned Senior Resident Magistrate then sentenced the appellant to serve imprisonment for five years on each limp of count one. The sentences run concurrently. With regard to the second count the Learned Magistrate ordered that the appellant be repatriated back to Tanzania upon completion of the prison term.
The appellant was dissatisfied with the sentences and has appealed to this court on the ground as I understand it that the sentences of five years are manifestly excessive in the circumstances. The appellant maintains that he is a first offender and is remorseful. He then adds that he is the sole breadwinner of his family. In those circumstances the appellant prays that his appeal against sentence be allowed.
I have considered the record of the Learned Senior Resident Magistrate and note that the Learned Senior Resident Magistrate does not appear to have considered the mitigating circumstances of the appellant before sentencing him. It does not therefore surprise me that the Learned State Counsel does not support the sentences of imprisonment of five years on count one. Those sentences are in my view manifestly excessive in the circumstances of the case especially as all the items stolen were recovered. The appellant was a first offender and prayed for forgiveness. I am not persuaded that those circumstances were considered by the Learned Senior Resident Magistrate.
In the premises, I will interfere with the sentences of imprisonment imposed. The appellant has been in prison for slightly over two years. He has learnt his lesson. His appeal against the sentences of imprisonment is allowed. The sentences of five years are set aside and substituted with sentences of imprisonment for the period already served. The appellant should be released forthwith unless he is otherwise lawfully held. As the order for the repatriation of the appellant to Tanzania remains undisturbed, the appellant shall forthwith be repatriated accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MOMBASA THIS 27TH DAY OF APRIL 2009.
F. AZANGALALA
JUDGE
Delivered in the presence of the appellant and Mr. Onserio for the Republic.
F. AZANGALALA
JUDGE
27TH APRIL 2009