[2005] KEHC 1864 (KLR)
The court found that the 1st appellant was properly convicted on his own unequivocal plea of guilty, and the 2nd appellant was convicted on overwhelming evidence, including being found with the stolen calf shortly after the theft and attempting to sell it. The identification of the calf by the complainant was not in...
Source-derived case information.
- Citation
- [2005] KEHC 1864 (KLR)
- Parties
- Appellant: Samuel Kirubi Gitonga; Appellant: Benson Kangethe Kariuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 50 & 51 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeals against conviction dismissed; appeals against sentence allowed.
- Judges
- GG Okwengu
- Legal Topics
- Stock Theft, Plea of Guilty, Sentencing, First Offender, Evidence Identification
- 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
Samuel Kirubi Gitonga
Appellant
Benson Kangethe Kariuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the convictions of the appellants for stock theft were proper in law.
- 2 Whether the sentences imposed were excessive in the circumstances.
Ratio Decidendi
The court found that the 1st appellant was properly convicted on his own unequivocal plea of guilty, and the 2nd appellant was convicted on overwhelming evidence, including being found with the stolen calf shortly after the theft and attempting to sell it. The identification of the calf by the complainant was not in doubt. However, the court held that the sentence of 7 years imprisonment and 3 strokes of the cane for theft of one calf was excessive, especially considering both appellants were first offenders and the 1st appellant had pleaded guilty. The court therefore dismissed the appeals against conviction but allowed the appeals against sentence, reducing the sentence to the period...
Court Disposition
Appeals against conviction dismissed; appeals against sentence allowed.
Orders
- The appeals against conviction are dismissed.
- The appeals against sentence are allowed; the sentence is reduced to the period already served.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal 50 of 2002
SAMUEL KIRUBI GITONGA ……...……………. APPELLANT
VERSUS
REPUBLIC …………………………………… RESPONDENT
(Appeal from original judgment and conviction in District Magistrate’s Court at
Kigumo in Criminal Case No. 60 of 2002 dated 24thJanuary 2002 by P. J. Mwangulu –
D.M.I –Kigumo)
Criminal Appeal 51 of 2002
BENSON KANGETHE KARIUKI ……...…...…………. APPELLANT
VERSUS
REPUBLIC ……………………….……………….. RESPONDENT
(Appeal from original judgment and conviction in District Magistrate’s Court at
Kigumo in Criminal Case No. 60 of 2002 dated 24thJanuary 2002 by P. J. Mwangulu –
D.M.I –Kigumo)
Criminal Appeal 51 of 2002
REASONS FOR JUDGMENT
Samuel Kirubi Gitonga the appellant in HC.CR.APP. No. 50 of 2002 (hereinafter referred to as 1st Appellant) and Benson Kangethe Kariuki the appellant in HC.CR.APP. No. 51 of 2002 (hereinafter referred to as the 2nd Appellant) were jointly charged before the District Magistrate at Kigumo for the offence of stock theft contrary to section 278 of the Penal Code.
The 1st Appellant was convicted on his own plea of guilty and was sentenced to serve 7 years imprisonment with 3 strokes of the cane. The 2nd Appellant pleaded not guilty and was tried, convicted and also sentenced to serve 7 years imprisonment and 3 strokes of the cane.
Both appellants appealed against conviction and judgment. On the 24th July 2005 having heard the appeals in respect of both Appellants I allowed the appeal on sentence and reduced the sentence of each appellant to the period already served.
This was because the appeal against conviction had no merit, the 1st Appellant having been convicted on unequivocal plea of guilty.
As for the 2nd Appellant the evidence against him was completely overwhelming, as he was seen with the complainant’s calf just hours after it had been stolen. He tried to convince Francis Kirubi Gitonga (P.W.3) to look for a buyer for the calf claiming that the calf was his. The 2nd Accused even negotiated with Joram Njagi (P.W.4) to whom he purported to sell the calf. The calf was properly identified by the complainant as belonging to him. The evidence against the Appellant was therefore sufficient to sustain the charge.
Both Appellants having been treated as a 1st offender and the 1st Appellant having even pleaded guilty to the charge the sentence of 7 years imprisonment and 2 strokes for theft of one calf was rather excessive. It was for this reason that I reduced the sentence to the period already served which was over 3½ years imprisonment. I do therefore dismiss both the appellant appeals against conviction but allow the appeal against sentence as aforestated.
Those shall be the orders of the court.
Dated signed and delivered this 19th day of August 2005.
H. M. OKWENGU
JUDGE