[2013] KEHC 1815 (KLR)
The court found that the appellant, as a first offender who pleaded guilty to stealing stock valued at Kshs. 16,000, was not given an opportunity to mitigate before sentencing. The trial magistrate's failure to allow mitigation was a procedural error. Considering the non-aggravated nature of the offence and the...
Source-derived case information.
- Citation
- [2013] KEHC 1815 (KLR)
- Parties
- Appellant: Stephen Wandera; Respondent: Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 10 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced on appeal
- Legal Topics
- Sentencing Principles, Mitigation Rights, Stealing Stock, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Wandera
Appellant
Republic of Kenya
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive given he was a first offender.
- 2 Whether the appellant was denied the right to mitigate before sentencing.
Ratio Decidendi
The court found that the appellant, as a first offender who pleaded guilty to stealing stock valued at Kshs. 16,000, was not given an opportunity to mitigate before sentencing. The trial magistrate's failure to allow mitigation was a procedural error. Considering the non-aggravated nature of the offence and the appellant's status as a first offender, the sentence of seven years imprisonment was deemed harsh and excessive. The High Court exercised its appellate jurisdiction to reduce the sentence to three years imprisonment, holding that a more lenient sentence was appropriate in the circumstances.
Court Disposition
sentence reduced on appeal
Orders
- The sentence of seven years imprisonment is set aside and substituted with a sentence of three years imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 10 OF 2013
STEPHEN WANDERA……………………APPELLANT
VERSUS
REPUBLIC OF KENYA………..………RESPONDENT
(BEING AN APPEAL ON SENTENCE FROM ORIGINAL CRIMINAL CASE NO 288 OF 2013 IN BUSIA LAW COURTS).
JUDGMENT
The Appellant was on 11th March 2013, charged before the Magistrate’s court with the offence of stealing stock contrary to section 278 of the Penal Code in that on the night of 9th and 10th March 2013 at Bulanda Village Busia Township, stole one brown bull valued at Kshs. 16000/= the property of Esther Wandera. The Appellant pleaded guilty and accepted the facts are true after they were read over by the prosecutor. The prosecutor then presented the previous record indicating that the Appellant was to be treated as a first offender. The learned trial Magistrate thereafter proceeded to sentence him to seven (7) years imprisonment.
The Appellant, being aggrieved by the sentence, filed this appeal on 20th March 2013, which is based on the following four grounds;
That he pleaded guilty.
That he is a first offender
That he was not allowed to mitigate
That he is serving a long sentence.
During the hearing of the appeal, the state conceded that a sentence of seven years imprisonment given to the Appellant, was on the higher side considering that he was a first offender and that the maximum penalty for the offence is 14 years. I have carefully considered the grounds of the appeal and the submissions by Counsel appearing for the state and I find from the record that the Appellant was not given the opportunity to offer his mitigation. Had the learned trial magistrate afforded the Appellant the opportunity to mitigate, I am of the view he would have come to a more lenient sentence. This court is of the view that a sentence of 7 years imprisonment imposed in this case against the Appellant, who was a first offender, was harsh considering the value of the property stolen is said to be Kshs. 16,000/=. The offence was not of an aggravated nature and the sentence is hereby reduced to three years imprisonment.
It is so ordered.
S. M. KIBUNJA,
JUDGE.
DATED AND DELIVERED ON…17th DAY OF OCTOBER, 2013.
IN THE PRESENCE OF;