[2010] KEHC 4004 (KLR)
The court found that the trial magistrate had properly exercised her discretion in sentencing. The appellants were given an opportunity to mitigate, and a probation officer's report was considered, which indicated the appellants were of bad conduct. The magistrate was entitled to take these factors into account. The...
Source-derived case information.
- Citation
- [2010] KEHC 4004 (KLR)
- Parties
- Appellant: Samuel Maina Wambui; Appellant: Josphat Maina Gaturi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 310 & 306 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JK Sergon
- Legal Topics
- Sentencing Principles, Burglary, Stealing, Handling Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Maina Wambui
Appellant
Josphat Maina Gaturi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh and excessive.
- 2 Whether the trial magistrate failed to consider mitigating factors in sentencing.
Ratio Decidendi
The court found that the trial magistrate had properly exercised her discretion in sentencing. The appellants were given an opportunity to mitigate, and a probation officer's report was considered, which indicated the appellants were of bad conduct. The magistrate was entitled to take these factors into account. The sentence imposed was within the statutory limits and not manifestly excessive. Therefore, there was no basis for the appellate court to interfere with the sentence, and the appeals were dismissed in their entirety.
Court Disposition
appeal dismissed
Orders
- The appeals are dismissed in their entirety.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 310 & 306 of 2007
SAMUEL MAINA WAMBUI … ....……….1ST APPELLANT
Versus
REPUBLIC…….………………………..…….RESPONDENT
CONSOLIDATED WITH
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO.306 OF 2007
(Arising from Nanyuki S.P.M.’s Criminal Case No. 1382 of 2007)
JOSPHAT MAINA GATURI .….......…….2ND APPELLANT
Versus
REPUBLIC……….........………………..…….RESPONDENT
JUDGMENT
Samuel Maina Wambui, and Josphat Maina Gaturi, 1st and 2nd the appellants herein, jointly with three others were tried on a charge of burglary contrary to S. 304(2) and Stealing Contrary to S. 279(b) of the Penal code. They also faced an alternative count of handling stolen property contrary to Section 322 of the Penal Code. The appellants and their co-accused initially pleaded not guilty to the charges. The appellants changed their plea and pleaded guilty to the main charge. When they appeared before Miss Ndung’u learned Principal Magistrate on 17th September 2007. The appellants were convicted and sentenced to serve 5 years imprisonment on each limb of the charge.
The appellants each filed an appeal before this court (now consolidated) against the sentences. It is the submission of the appellants the sentence meted out is harsh and excessive. The appellants have alleged that the trial magistrate did not consider the mitigating factors. Miss Ngalyuka, learned State Counsel did not oppose the appeals.
I have considered both the written and oral submissions plus the material placed before me. It is trite law that an appellate court cannot interfere with a trial court’s discretion on sentence unless it is shown that the trial court did not consider material factors or that it took into account irrelevant factors or that the sentence is manifestly excessive. I have perused section 304 (2) and 279(b) of the Penal Code. A conviction under the aforesaid sections attracts maximum sentences of 10 and 14 years imprisonment respectively. The record shows that the learned Principal Magistrate gave the accused persons a chance to mitigate. After receiving the appellants’ submissions on mitigation, the learned Magistrate called for the probation officer’s report. The report indicated that the appellants were of bad conduct. The trial court took into account those sentiments. She was entitled to do so. I find that the learned Principal Magistrate did not breach any of the principles applicable in sentencing. Hence I do not see any reason that warrants any interference of the order on sentence. The sentence is neither harsh nor excessive. The appeals are hereby ordered dismissed in their entirety.
Dated and delivered this 13th day of January 2010.
J.K. SERGON
JUDGE
In open court in the presence of Mr. Makura and the appellants.
J.K. SERGON
JUDGE