[1999] KEHC 130 (KLR)
The trial magistrate erred by disregarding a favourable probation report after having called for it, and by failing to consider the appellant's severe medical condition as documented by a medical expert. The High Court held that once a probation report is ordered and is favourable, it must be given due consideration...
Source-derived case information.
- Citation
- [1999] KEHC 130 (KLR)
- Parties
- Appellant: Simon Kamau Samson; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 319 of 1999
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- appeal allowed; sentence varied
- Judges
- JL Osiemo
- Legal Topics
- Sentencing Principles, Probation Reports, Stealing by Clerk, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kamau Samson
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the trial magistrate erred in disregarding a favourable probation report when sentencing the appellant.
- 2 Whether the sentence of 3 years imprisonment was appropriate in light of the appellant's medical condition and the probation officer's recommendation.
Ratio Decidendi
The trial magistrate erred by disregarding a favourable probation report after having called for it, and by failing to consider the appellant's severe medical condition as documented by a medical expert. The High Court held that once a probation report is ordered and is favourable, it must be given due consideration in sentencing. The appellant's severe Endogenous Depression further militated against a custodial sentence. Accordingly, the sentence of 3 years imprisonment was set aside and substituted with 3 years probation.
Court Disposition
appeal allowed; sentence varied
Orders
- The sentence of 3 years imprisonment is set aside.
- The appellant is sentenced to 3 years probation.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI APPELATE SIDE CRIMINAL APPEAL NO.319 OF 1999
(From Original Conviction and Sentence in Criminal Case No.1144 of 997 of the Senior Resident Magistrate’s Court at Nairobi: C.W. Meoli (Mrs)
SIMON KAMAU SAMSON ………………..………….….... APPELLANT VERSUS REPUBLIC ……………………………………..………….. RESPONDENT
Coram: Osiemo, J., Appellant present and represented Mr. Sande for the Appellant Mrs Ondieki (State Counsel) for the Respondent
J UD G M E N T
The appellant was charged with 9 counts of stealing by clerk contrary to section 281 of the Penal Code. He was tried convicted and sentenced to 3 years imprisonment for each count sentences to run concurrently. His appeal to this court is against sentence only.
This being the first appeal the court is entitled to evaluate the evidence on the lower court record. The record shows after the trail magistrate had convicted the appellant he ordered for a probation report. But after the same was produced in court by the Probation Officer and which had recommended that the appellant be given a chance on probation the learned trial magistrate decided to ignore it and sentenced the appellant to 3 years imprisonment.
This was wrong. Once the trial had made up her mind t order for a probation report, she ought to have given it due consideration before she decided to award the appellant a custodial sentence. The probation report filed by the Probation Officer was favourable.
In addition there is a medical report on the appellant by Dr. C.M. WAHOME dated 24th April, 1999 which indicates that the appellant is suffering from severe Endogenous Depression.
In his opinion the doctor has recommended that the appellant should not be confirmed under harsh prison conditions. For the above reasons I allow the appeal. Set aside sentence of 3 years imprisonment and substitute the same with 3 years probation.
Dated and delivered at Nairobi this 18th day of May, 1999
J.LA. OSIEMO
JUDGE