[2019] KEHC 6086 (KLR)
The court found that the sentence of three years' imprisonment was not excessive given the value of the stolen property (Ksh.45,000) and the circumstances of the offence. The negative Probation Officer's Reports, which highlighted negative sentiments from the complainant, local administration, and neighbours, as...
Source-derived case information.
- Citation
- [2019] KEHC 6086 (KLR)
- Parties
- Appellant: Simon Peter; Appellant: Paul Kibet Kipkemoi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 30 & 31 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Principles, Community Service Orders, First Offender Status, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Peter
Appellant
Paul Kibet Kipkemoi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 3 years imprisonment for breaking into a building and committing a felony was excessive in light of the circumstances.
- 2 Whether the appellants qualified for a non-custodial sentence under the Community Service Orders Act.
Ratio Decidendi
The court found that the sentence of three years' imprisonment was not excessive given the value of the stolen property (Ksh.45,000) and the circumstances of the offence. The negative Probation Officer's Reports, which highlighted negative sentiments from the complainant, local administration, and neighbours, as well as scanty information about the appellants' places of abode, rendered the appellants ineligible for non-custodial sentences under the Community Service Orders Act. Consequently, the appeals lacked merit and were dismissed, with the original sentence upheld.
Court Disposition
appeal dismissed
Orders
- The appeals by Simon Peter and Paul Kibet Kipkemoi are dismissed.
- The sentence of three years' imprisonment imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
HCCRA NO. 30 OF 2018 (CONSOLIDATED WITH 31 OF 2018)
SIMON PETER.......................................1ST APPELLANT
PAUL KIBET KIPKEMOI...................2ND 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 24th day of March 2017 by Hon. E.M. Ayuka, RM]
JUDGMENT
1. The appellants Simon Peter and Paul Kibet Kipkemoi were on 22/6/2018 convicted and sentenced to imprisonment for 3 years for the offence of Breaking into a building and committing a felony contrary to section 306 (2) of the Penal Code, the felony being stealing “one sack of clothing valued at Ksh.45,000/=”. The appellants have, therefore, served one (1) year of the 3-year sentence.
2. The appellants did not challenge the conviction but pleaded for a reduction of sentence and stating, respectively, “that I am a first offender….the above emanated from bad company and the use of alcohol which I promise to shun” and“that I am a first offender and this crime herein just emanated from bad company of which I promise to discern completely and become a good citizen.”Sic
3. DPP did not oppose the appeals subject to favourable Probation Officer’s Report for non-custodial sentence for the remainder of the imprisonment term.
4. The Probation Officer’s pre-sentence reports were, however, negative for both the appellants, the Probation Officer recommending for the respective appellant that:
“Given the negative sentiments from the complainant, the local administration and the neighbours, coupled with the scanty information over the appellant’s place of abode, it is my opinion his supervision in the community may notsucceed and therefore his case may be dealt with otherwise.”
Review of the sentence by the trial Court
5. I have considered the sentence by the trial Court, and in view of the value of the items stolen worth Ksh.45,000/= I do not find that the sentence was in any way excessive. In addition, in view of their negative Probation Officer’s Reports for non-custodial sentence, the appellants cannot benefit from the provisions of section 3 of the Community Service Order Act which require consideration of Community Service for offenders sentenced or being considered for 3 years imprisonment and below.
Orders
6. Accordingly, for the reasons set out above, the appellants’ appeals herein are without merit, and each of them is dismissed.
Order accordingly.
DATED AND DELIVERED THIS 1ST DAY OF JULY 2019
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellants in person.
Ms. Macharia, Ass. DPP for the Respondent