Samwel Mwaniki Kahingo v Republic [2017] KEHC 3944 (KLR)
- Citation
- [2017] KEHC 3944 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Case number
- Criminal Appeal 76 of 2016
- Language
- English
More details
- Court
- High Court
- Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Case number
- Criminal Appeal 76 of 2016
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the offence of stealing by servant is serious and involves breach of trust, the appellant was a first offender, expressed remorse, and the value of the stolen property was relatively modest. The trial court's sentence of 5 years imprisonment, though within the statutory maximum, was excessive in the circumstances. The High Court exercised its discretion to reduce the sentence to 18 months imprisonment, balancing the seriousness of the offence with the mitigating factors presented by the appellant.
Court disposition
sentence reduced on appeal
Orders
- The sentence of 5 years imprisonment imposed by the lower court is set aside.
- The appellant is sentenced to 18 months imprisonment.
02
Material facts
Parties
Samwel Mwaniki Kahingo
AppellantRepublic
Respondent Counsel: Ms. MwanikiAmounts and remedies
- Value of Stolen Property: KES 33,495
- Original Sentence (months): 60
- Reduced Sentence (months): 18
03
Procedural history
Posture
Criminal Appeal / Judgment on Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence of 5 years imprisonment for stealing by servant was excessive in the circumstances.
- 02
Whether the appellant's status as a first offender and mitigation warranted a reduction of sentence.
Party arguments
- Applicant
- The appellant argued that he was a first offender, had developed poor health after sentencing, and requested a lesser or non-custodial sentence.
- Respondent
- The respondent, through Ms. Mwaniki, did not contest the appeal on sentence, submitted that the maximum sentence under section 281 is 7 years with no minimum, and agreed that the 5-year sentence was excessive given the appellant's mitigation and the value of the property.
05
Court’s reasoning
Legal principles
- 01
Penal Code, section 281
Section 281 of the Penal Code provides for a maximum sentence of 7 years for stealing by servant, with no minimum sentence prescribed. Sentencing is at the court's discretion, considering mitigation and circumstances.
- 02
General sentencing principles; mitigation practice
The court should consider whether the offender is a first offender and whether there is remorse or mitigation when determining sentence.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the offence of stealing by servant is serious and involves breach of trust, the appellant was a first offender, expressed remorse, and the value of the stolen property was relatively modest. The trial court's sentence of 5 years imprisonment, though within the statutory maximum, was excessive in the circumstances. The High Court exercised its discretion to reduce the sentence to 18 months imprisonment, balancing the seriousness of the offence with the mitigating factors presented by the appellant.
Obiter and limits
- The court noted that the appellant promised not to commit such an offence again, which was taken into account in reducing the sentence.
Court disposition
sentence reduced on appeal
- The sentence of 5 years imprisonment imposed by the lower court is set aside.
- The appellant is sentenced to 18 months imprisonment.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CRIMINAL APPEAL NO. 76 OF 2016
(Appeal originating from the sentence by Hon. K.ONESMUS SRM in Nyeri CR. CASE NO.706 of 2016)
SAMWEL MWANIKI KAHINGO...............................APPELLANT
=VERSUS=
REPUBLIC..............................................................RESPONDENT
J U D G M E NT
The appellant was charged with the offence of stealing by servant contrary to section 281 of the penal code. The particulars were that between March and September 2015 at Maragi village in kieni west district within Nyeri County in the republic of Kenya the appellant being employee of paul Muchgia Wambugu stole sonny video camera, stapler, nokia phone type 6070, two packets of staples, power inverter, extension cable, barber machine, battery charger all valued at kshs 33,495 which came into his possession by virtue of his employment.
The alternative charge was the offence of handling stolen goods contrary to section 322(1)(2).particulars are that the appellant otherwise than in the course of actual stealing, he dishonestly retained the above items listed in the main charge knowing or having reason to believe them to be stolen.
The appellant was found guilty and convicted after full trial. He now appeals on sentence alone.in his submissions the appellant stated that he was a first offender and that he developed poor health after the sentence. He prayed for a lesser sentence or a non-custodial sentence
Ms. Mwaniki for the state submitted that the state is not contesting the appeal on sentence. She submitted that section 281 of the penal code under which the appellant has been convicted provide for a sentence of 7 years and that there is no minimum sentence for the offence. She further submitted that the court has discretion to determine the appropriate sentence. She said that the appellant was sentenced to 5 years imprisonment which is close to 7 years and that she agrees it is excessive especially that during mitigation the appellant was a first offender remorseful, and property being valued at kshs 33,495.
I have perused the lower court record. I confirm from the record that the appellant was a first offender.in mitigation he said he will never take anything from any person. The court considered that he is a first offender and his plea for leniency but considered the fact that he abused trust bestowed on him by his employer. I agree with the trial magistrate that the offence is serious but bearing in mind the fact that the appellant is a first offender and the fact that he promised not to commit such an offence again, I find the sentence imposed excessive. From the foregoing I do reduce the sentence to 18 months imprisonment.
Dated, signed and delivered at Nyeri this 9th day of June 2017
RACHEL NGETICH
………………………
HIGH COURT JUDGE
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