[2008] KEHC 2331 (KLR)
Although the sentence of three years imprisonment was within the legal maximum for the offence of obtaining by false pretences under Section 313 of the Penal Code, the court found that the trial magistrate failed to adequately consider the appellant's status as a first offender, her remorse, her willingness to repay...
Source-derived case information.
- Citation
- [2008] KEHC 2331 (KLR)
- Parties
- Appellant: Saumu Hussein; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 516 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- DO Ohungo
- Legal Topics
- False Pretences, Sentencing Principles, Mitigation, First Offender, Fraud, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saumu Hussein
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of three years imprisonment for the offence of obtaining by false pretences was harsh and excessive.
- 2 Whether the appellant's mitigation and willingness to repay the defrauded sum warranted a reduction of sentence.
Ratio Decidendi
Although the sentence of three years imprisonment was within the legal maximum for the offence of obtaining by false pretences under Section 313 of the Penal Code, the court found that the trial magistrate failed to adequately consider the appellant's status as a first offender, her remorse, her willingness to repay the defrauded sum, and her personal circumstances. The appellate court held that the purpose of sentencing includes not only punishment but also the potential for rehabilitation and consideration of mitigating factors. Consequently, the court determined that a one-year term of imprisonment was more appropriate in the circumstances and substituted the original sentence...
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The three-year imprisonment sentence imposed by the trial magistrate is set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal Case 516 of 2007
SAUMU HESSEIN……………......…………………………….APPELLANT
VERSUS
REPUBLIC………….………………………………………..RESPONDENT
(From the conviction and sentence in criminal case No. 1415 of 2007 Chief Magistrate’s Court at Nairobi)
JUDGEMENT
Saumu Hussein (the appellant) had been charged with detaining by false pretences contrary to Section 313 penal code particulars being that on 13/1/2007 in Riruta, with intent to defraud obtained Kshs. 100,000/- by falsely pretending that she would sell land parcel Dagoretti/Riruta/5114 measuring 0. 10 hectares.
The appellant pleaded guilty to the charge which was read to her in Kiswahili language.
The facts were stated and she confirmed the same to be correct.
The plea was thus unequivocal.
The prosecutor indicated that she was a first offender and in mitigation, appellant said she would pay the money as she had rental houses.
The learned trial magistrate in passing sentence, noted that the offence was serious and that appellant had abused the trust placed on her by the complainant. She also noted that there was no recovery of the money and sentenced appellant to serve 3 (three) years imprisonment.
The appeal is only on sentence – the appellant stated that she is remorseful and sought forgiveness.
In her submissions she informed Court that her husband had died and she had children.
The learned state counsel Miss. Gateru conceded to the appeal saying that the appellant was the first offender, and that the sentence was harsh and excessive.
Let me state from the onset that for a charge under Section 313 Penal Code, the same is deemed as a misdemeanor attracting a maximum jail term of three years and the sentence imposed was a legal one. However one must also consider that the purpose for sentence is not just to punish the offence, the general circumstances surrounding the commission of the offence and the possibility that the appellant may reform must be considered. Taking into account the appellant’s willingness to reform and that in mitigation she had informed the lower Court of her willingness to pay back the money and the sum involved, then I think a prison term of one year would be more appropriate.
I therefore allow the appeal on sentence, set aside the term of imprisonment imposed by the learned trial magistrate and substitute the same with a one year (1) term of imprisonment runs from the date of sentence by the trial Court.
Delivered and dated this 18th day of June 2008 at Nairobi.
H.A OMONDI
JUDGE