[2007] KEHC 3202 (KLR)
The High Court found that although the sentence of 7 years imprisonment for handling stolen goods was legal, it was manifestly harsh and excessive given the appellant's plea of guilty at the first instance, his status as a first offender, and the recovery of some stolen items. The court held that these mitigating...
Source-derived case information.
- Citation
- [2007] KEHC 3202 (KLR)
- Parties
- Appellant: Simon Nzuki Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 251 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied and reduced
- Judges
- MSA Makhandia
- Legal Topics
- Sentencing Principles, Handling Stolen Goods, Plea of Guilty, First Offender, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Nzuki Mutisya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was manifestly harsh and excessive in the circumstances.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The High Court found that although the sentence of 7 years imprisonment for handling stolen goods was legal, it was manifestly harsh and excessive given the appellant's plea of guilty at the first instance, his status as a first offender, and the recovery of some stolen items. The court held that these mitigating factors warranted interference with the sentence. Consequently, the court exercised its discretion to reduce the sentence to 3.5 years imprisonment, effective from the date of conviction.
Court Disposition
sentence varied and reduced
Orders
- The appellant's sentence is reduced to 3.5 years imprisonment with effect from the date of conviction.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 251 of 2004
SIMON NZUKI MUTISYA …….…....….……..….APPELLANT
VERSUS
REPUBLIC ………………………………….. RESPDONDENT
(From original conviction and sentence in Criminal Case No.1269 of 2004 of the Chief Magistrate’s Court at Makadara –Miss Oyaro RM)
JUDGMENT
The Appeal is on sentence only. The Appellant was convicted on his own plea of guilty on the alternative count of handling stolen goods contrary to Section 322 (2) of the Penal Code. Upon conviction he was sentenced to 7 years imprisonment.
The Appellant was aggrieved by the sentence and hence lodged the instant Appeal. In his Petition of Appeal, the Appellant stated that he was a first offender, pleaded guilty to the charge, that he was remorseful and repentant, that he was misled by wayward company to commit the offence and finally that he was a young man aged 23 years who should be given another chance in life. When the Appeal came up for hearing, the Appellant in his oral submissions reiterated the grounds set out in the Petition of Appeal aforesaid. He however added that the sentence imposed was harsh and excessive. Mrs. Gakobo, Learned State Counsel who appeared for the State, submitted that though the sentence imposed was legal, it was nonetheless harsh considering that the Appellant pleaded guilty and spared the Court its valuable time, and secondly, he was a first offender. Finally Counsel pointed out that some of the stolen items were recovered.
As it has been constantly stated, sentencing is an exercise in discretion by the sentencing Court. Accordingly unless it is shown that the discretion was not exercised judicially but rather capriciously, the Appellate Court would rarely interfere with such exercise in discretion. Further it has also been held that the Appellate Court would only interfere with the sentence imposed if it is demonstrated that it is illegal, manifestly harsh and excessive, that in arriving at the sentence, the sentencing Court took into account irrelevant or extraneous matters and failed to take into account relevant matters.
The sentence imposed on the Appellant no doubt is legal. However considering the fact that the Appellant pleaded guilty to the charge at the first instance and thus saved the Court its valuable time and the fact that the Appellant was a first offender, it would appear that the sentence imposed was manifestly harsh and excessive in the circumstances. I would in the premises interfere with the sentence to the extent that I will reduce it to a term of 31/2years. Accordingly I vary the Appellant’s sentence to 31/2years imprisonment with effect from the date of conviction.
Dated at Nairobi this 28th day of February, 2007.
………………………….
MAKHANDIA
JUDGE
Judgment read, signed and delivered in the presence of:-
Appellant
Mrs. Gakobo for State
Erick Court Clerk
………………………….
MAKHANDIA
JUDGE