[2015] KEHC 3200 (KLR)
The court found that the appellants, being first offenders and having served a substantial portion of their sentence, were entitled to a reduction of sentence, especially in light of the State's concession to the appeal and non-opposition to their mitigation. The trial magistrate's observation regarding the rampant...
Source-derived case information.
- Citation
- [2015] KEHC 3200 (KLR)
- Parties
- Appellant: Solomon Nelson; Appellant: Joshua Melau; Appellant: Jackson Sernkur Lapit; Appellant: Moses Mwolel; Appellant: Daundi Tobiko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 289 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to time served; appellants released
- Judges
- LM Njuguna
- Legal Topics
- Stock Theft, Sentencing, Mitigation, First Offender, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Nelson
Appellant
Joshua Melau
Appellant
Jackson Sernkur Lapit
Appellant
Moses Mwolel
Appellant
Daundi Tobiko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellants was excessive in light of their mitigation and status as first offenders.
- 2 Whether the State's concession to the appeal and non-opposition to mitigation warranted reduction of sentence.
Ratio Decidendi
The court found that the appellants, being first offenders and having served a substantial portion of their sentence, were entitled to a reduction of sentence, especially in light of the State's concession to the appeal and non-opposition to their mitigation. The trial magistrate's observation regarding the rampant nature of the offence was noted, but the interests of justice and the circumstances of the appellants warranted reducing the sentence to the period already served. The court therefore ordered the immediate release of the appellants unless otherwise lawfully held.
Court Disposition
sentence reduced to time served; appellants released
Orders
- The sentence of three years imprisonment is reduced to the term already served.
- All five appellants are to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 289 OF 2013
SOLOMON NELSON …………………….….1ST APPELLANT
JOSHUA MELAU……………………………2ND APPELLANT
JACKSON SERNKUR LAPIT …………...….3RD APPELLANT
MOSES MWOLEL ……………….…………..4TH APPELLANT
DAUNDI TOBIKO …………………..…………5TH APPELLANT
VERSUS
REPUBLIC …………………………………………RESPONDENT
(Being an appeal from the original conviction and sentence in Machakos Chief Magistrate’s Court, Criminal Case No. 793 of 2013 by Hon. E.K. Too Ag. Snr. Resident Magistrate on 19th July, 2013)
J U D G M E N T
The appellants herein were charged with two counts of stealing stock contrary to Section 278 of the Penal Code.
The particulars were that on the night of 18th and 19th day of July, 2013 at Katelembo village, Kathekakai location in Machakos County, jointly stole one goat and one sheep the property of Samuel Mutilili valued at Ksh. 10,000/=.
In count two the particulars were on the night of 18th July and 19th July, 2013 at Katelembo village, Katelembo sub-location in Kathekakai location within Machakos county, jointly stole two(2) goats valued at Kshs. 7,000/= the property of Daniel Nthiani Mutisya.
The appellants were sentenced to serve three(3) years imprisonment on both counts which were to run concurrently.
The appellants filed separate appeals but during the hearing the five appeals were consolidated and for purposes of recording the operative file is Criminal Appeal No. 289 of 2013. At the hearing of the appeal, they told the court that they have reformed and urged the court to reduce the sentence for them.
Mr. Machagu for the State told the court that he is not opposing the mitigation of the sentence. He has no objection with the appellants being released. In fact, he conceded to the appeal.
The court has considered the mitigation by the five appellants and the fact that they are first offenders as noted by the trial court. Though the trial magistrate also noted that the offence is rampant, the court considers that the appellants have served a substantial length of the sentence and in view of the fact that the State has conceded the appeal.
I hereby reduce the sentence of three (3) years to the term already served and I order that all the five appellants be released forthwith unless otherwise lawfully held for other reasons.
Dated and Delivered at Machakos this 24th day of July, 2015
LUCY NJUGUNA
JUDGE