[2011] KEHC 985 (KLR)
The High Court found that while the plea of guilty was properly taken and the conviction was sound, the trial magistrate erred by imposing a harsher sentence on the appellant than on his co-accused without providing reasons for the disparity. The absence of justification for the different sentence rendered the...
Source-derived case information.
- Citation
- [2011] KEHC 985 (KLR)
- Parties
- Appellant: Silas Mbaabu Inyasio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 181 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence allowed.
- Judges
- JW Lessit
- Legal Topics
- Sentencing Disparity, Plea of Guilty, Theft, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Mbaabu Inyasio
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred by imposing a disparate sentence on the appellant compared to co-accused without justification.
- 2 Whether the plea of guilty was properly taken and understood by the appellant.
Ratio Decidendi
The High Court found that while the plea of guilty was properly taken and the conviction was sound, the trial magistrate erred by imposing a harsher sentence on the appellant than on his co-accused without providing reasons for the disparity. The absence of justification for the different sentence rendered the disparity arbitrary and unjustifiable. The court therefore upheld the conviction but set aside the custodial sentence, substituting it with a fine. The forfeiture of the cash bail was deemed sufficient punishment given the appellant's conduct in jumping bail.
Court Disposition
Appeal against conviction dismissed; appeal against sentence allowed.
Orders
- The sentence of 3 months imprisonment is set aside and substituted with a fine of KES 10,000.
- The cash bail of KES 1,000 deposited by the appellant is forfeited to the State as sufficient punishment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO. 181 OF 2009
LESIIT J.
SILAS MBAABU INYASIO.....................................................................................APPELLENT
VERSUS
REPUBLIC.............................................................................................................REPONDENT
JUDGMENT
The Appellant SILAS MBAABU INYASIO was convicted of one count of stealing contrary to section 275 of the Penal Code. He had been charged with 4 other persons.All five accused in the lower court pleaded guilty to the charge and were sentenced to 1 year CSO except the Appellant who was sentenced to 3 months imprisonment without option of a time.
The Appellant was released by this court on a cash bail of Ksh.10,000/-this was one month after his imprisonment in the lower court. He has since jumped bail and was absent when his appeal was argued.
Ms Nelima for the Appellant urged one point very strongly which is that the learned trial magistrate erred when he passed a sentence against the Appellant which was different from that passed against the Respondent.Counsel relied on Ngatia & Another Vs Republic (1987) KLR 498 where court held:
“4. The sentence meted out on the first Appellant was manifestly disparate in comparison with the sentence meted out on Stephen for the same offence”.
Counsel, M/s Nelima raised another issue to do with plea urging it was not understood by the Appellant.Counsel relied on Wanjiru v. Republic [1975] EA. 5 where court held.
“(ii) The words “it is true” may not amount to a plea of guilty”
Mr. Mungai learned State Counsel opposed the appeal and urged the plea was properly taken and language used was an interpretation to a language the Appellant understood.
I have carefully analyzed and evaluated a fresh the proceedings before the lower court.The charge against the Appellant and co-accused was simple theft contrary to section 275 of Penal Code. It was alleged they stole miraa with 3000/- the facts led by the prosecutions shows the five were arrested in the complainant shamba plucking miraa, and that miraa worth 3000/- was recovered from them. The facts described the offence charge. The Appellant and his co-accused understood the proceedings which were clear and simple. I am satisfied the plea of guilty to the charge was properly taken and the plea entered was correct and cannot be faulted.
The learned trial magistrate called for CSO reports. All came back favourable to all five accused before the lower court.Despite that, the learned trial magistrate sent the other four accused to a CSO term of 12 months. The Appellant was sentenced to imprisonment for 3 months.
Imposition of sentence is in the discretion of the court.The court has power to impose different sentences to different persons even where the persons are charged with the same offence. The only rider is that where there is disparity in sentencing the court must give good reasons on record why that was done in order to justify the disparity. Court’s power must be exercised justifiably, not an arbitrarily or whimsically.
I have looked at the record of the court and find that the learned trial magistrate gave no reasons in the disparity sentences he imposed especially against the Appellant herein.The disparity was therefore not explained, substantiated and is therefore not justifiable. I will dismiss the appeal against conviction. On sentence, I allow the appeal, set aside the sentence of 15 months imprisonment and order a fine of 10,000/-
Since Appellant has deposited a cash bail of 1,000/- and has since jumped bail, I order the cash bail be forfeited to State as sufficient punishment in the offence.Those are the orders of this court.
DATED, SIGNED AND DELIVERED THIS 1ST DAY OF DECEMBER, 2011
J. LESIIT
JUDGE