[2019] KEHC 6172 (KLR)
The court found that the sentence of three years imprisonment for burglary was not excessive, given the value of the stolen items and the fact that the appellant was not a first offender. Although the sentence fell within the range eligible for consideration under the Community Service Orders Act, the negative...
Source-derived case information.
- Citation
- [2019] KEHC 6172 (KLR)
- Parties
- Appellant: Shadrack Kateiya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 29 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- EM Muriithi
- Legal Topics
- Burglary, Sentencing Principles, Community Service Orders, Probation Reports
- 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
Shadrack Kateiya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of three years imprisonment for burglary was excessive in the circumstances.
- 2 Whether the appellant was eligible for a non-custodial sentence under the Community Service Orders Act.
Ratio Decidendi
The court found that the sentence of three years imprisonment for burglary was not excessive, given the value of the stolen items and the fact that the appellant was not a first offender. Although the sentence fell within the range eligible for consideration under the Community Service Orders Act, the negative recommendation from the Probation Officer—citing community opposition and doubts about the appellant's rehabilitation—meant that a non-custodial sentence was not appropriate. The appeal lacked merit and was dismissed, affirming the trial court's sentence.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of three years imprisonment is upheld.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
HCCRA NO. 29 OF 2018
SHADRACK KATEIYA.................................................APPELLANT
=VERSUS=
REPUBLIC...................................................................RESPONDENT
[An appeal from the original conviction and sentence of the Principal Magistrate’s Court at Kabarnet Criminal Case no. 893 of 2016 delivered on the 14th day of June 2018 by Hon. S.O. Temu, PM]
JUDGMENT
1. Appellant was on 19/6/2018 convicted and sentenced to imprisonment for 3 years for the offence of Burglary contrary to section 304 (1) (2) of the Penal Code. The appellant has served one (1) year two weeks of the three year sentence, which is more than half the sentence, with remission.
2. DPP did not oppose the appeal considering the time already served and the Counsel suggested that the appellant may serve the remaining term on non-custodial sentence.
3. The Presentence Probation Officer’s Report was, however, negative for non-custodial sentence. The Probation Officer’s Report recommendation was that:
“Given the negative sentiments from the local administration and the immediate neighbours coupled with the fact that the appellant is very economical with the truth and gives conflicting information about his siblings and his actual place of abode, his rehabilitation within the community would be difficult.”
4. The appellant’s own submission appear to confirm to Probation Officer’s Report and Recommendation, very ironically, when he said:
“3. The crime emanated due to lack of parental care my lord when I was still in primary school I used to spend nights in the neighbouring house because my parents could not provide for meand they were not responsible. This led me to join some bad companies which led to my conviction and I promise to shun completely now that I know my mistakes.”
Review of sentence by trial Court
5. Taking into account the nature of the items stolen in the burglary offence being “safaricom scratch card (airtime) worth Ksh.20,000/=, mobile phone make Infinix Hot 3 worth Ksh.13,000/=, a bag worth Ksh.1500/=, a radio valued at Ksh.1000/= and 10 kg of maize valued at 600/=”, and noting that the appellant was not a first offender, I do not find that the sentence of imprisonment for 3 years was in any way excessive.
6. I would only consider non-custodial sentence pursuant to section 3 of the Community Service Orders Act because the sentence falls within the bracket of imprisonment terms of 3 years and under governed by the Act.
Orders
7. However, in view of the negative recommendation by the Probation Officer for non-custodial sentence, I would find that the appellant is not deserving of an order under the Community Service Order Act or other non-custodial treatment.
8. Accordingly, for the reasons set out above, I find no merit in the appellant’s appeal and the same is dismissed.
Order accordingly.
DATED AND DELIVERED THIS 1ST DAY OF JULY 2019
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Ass. DPP for the Respondent.