[2018] KEHC 7342 (KLR)
The High Court found that the sentence of 2 ½ years imprisonment imposed on the appellant, a first offender, was excessive given that the maximum sentence under Section 313 of the Penal Code is 3 years. The court held that the trial court failed to sufficiently consider the appellant's status as a first offender and...
Source-derived case information.
- Citation
- [2018] KEHC 7342 (KLR)
- Parties
- Appellant: Samuel Munyi Mwaniki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 81 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- MM Kasango
- Legal Topics
- Sentencing Principles, False Pretences, Mitigation, First Offender, Penal Code Section 313
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Munyi Mwaniki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court for the offence of obtaining by false pretences was excessive given the appellant was a first offender.
- 2 Whether the High Court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The High Court found that the sentence of 2 ½ years imprisonment imposed on the appellant, a first offender, was excessive given that the maximum sentence under Section 313 of the Penal Code is 3 years. The court held that the trial court failed to sufficiently consider the appellant's status as a first offender and the mitigating circumstances presented. Consequently, the High Court set aside the original sentence and substituted it with a sentence of imprisonment for the period already served, followed by 6 months probation supervised by the Laikipia East sub county Probation office. The appellant was ordered to be set free unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The trial court’s sentence of Samuel Munyi Mwaniki is set aside.
- The appellant is sentenced to imprisonment for the period already served and shall serve 6 months under probation supervised by Laikipia East sub county Probation office.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
CRIMINAL CASE APPEAL NO.81 OF 2017
SAMUEL MUNYI MWANIKI …….. APPELLANT
Versus
REPUBLIC …………………….…….RESPONDENT
(Being an appeal from the original conviction and sentence by Hon. L Mutai – Chief Magistrate dated 7th June 2017 in Nanyuki Chief Magistrate Court Criminal Case No. 649 of 2017)
JUDGMENT
1. SAMUEL MUNYI MWANIKI pleaded guilty, before Nanyuki Chief Magistrate’s Court, for the offence of obtaining by false pretences Contrary to Section 313 of the Penal Code. He was sentenced to serve imprisonment for 2 ½ years. He has filed this appeal against that sentence.
2. His submissions in support of his appeal are mitigations. He submitted that he is the sole bread winner of his family, that he is now reformed and remorseful of his actions; and that the has obtained counselling at prison.
3. The respondent represented by the Principal Prosecution Counsel Mr Tanui submitted that the sentence provided under Section 313 of the Penal Code is 3 years. That accordingly the sentence of 2 ½ years was excessive.
4. The facts narrated by the prosecution were that the appellant was contracted by Karanja Kagiri to assist in construction of Laikipia airbase. To that end the appellant was permitted to collect supplies for that construction from Ndachi Company hardware in Nanyuki. The appellant collect from that hardware shop items in excess than that which was required for the construction. He collect the following items: vibrator machine, turpentine, paint, brushes; all items valued at Ksh. 86,430.
5. The appellant was a first time offender.
6. The fact the appellant was a first offender the sentence meted to him, of 2 ½ years imprisonment was excessive since the maximum sentence under Section 313 is 3 years imprisonment. It is because of that finding that this court can interfere with that trial court’s sentence: see the case SUSAN ASIYO – VS- REPUBLIC [2016] eKLR
7. The judgment of this court is as follows:
a. The trial court’s sentence ofSamuel MunyiMwanikiis hereby set aside.
b. This court sentencesSamuelMunyiMwaniki toserve imprisonments for the period so far served and in addition he shall serve 6 (six) months under probation supervised by Laikipia East sub county Probation office.
c. In that regard I order the appellant to be set free unless he is otherwise lawfully held.
Dated and Delivered at Nanyuki this 18thApril 2018
MARY KASANGO
JUDGE
Coram
Before Justice Mary Kasango
Court Assistant: Njue/Mariastella
Appellant SamuelMunyiMwaniki…………………….
For state: ………………………………………….
Language ………………………………………….
COURT
Judgment delivered in open court
MARY KASANGO
JUDGE