[2015] KEHC 8498 (KLR)
The appellate court found that while the appellant was a repeat offender and a custodial sentence was justified, the imposition of the maximum term of imprisonment was excessive. The court held that the sentencing discretion must be exercised judiciously, taking into account both aggravating and mitigating factors....
Source-derived case information.
- Citation
- [2015] KEHC 8498 (KLR)
- Parties
- Appellant: Tazam Odhiambo Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 6 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Legal Topics
- Sentencing Principles, Repeat Offender, House Breaking, Stealing, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tazam Odhiambo Owino
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment imposed on the appellant was excessive given the circumstances.
- 2 Whether the sentencing court exercised its discretion properly in considering the appellant's status as a repeat offender.
Ratio Decidendi
The appellate court found that while the appellant was a repeat offender and a custodial sentence was justified, the imposition of the maximum term of imprisonment was excessive. The court held that the sentencing discretion must be exercised judiciously, taking into account both aggravating and mitigating factors. The appellant's prior conviction justified a higher sentence than a first-time offender, but not necessarily the maximum. The court therefore reduced the sentence from 7 years to 5 years imprisonment, finding this to be a more proportionate response to the circumstances of the case.
Court Disposition
sentence reduced
Orders
- The sentence of 7 years imprisonment is set aside and substituted with a sentence of 5 years imprisonment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 6 OF 2015
BETWEEN
TAZAM ODHIAMBO OWINO……………………..............................APPELLANT
AND
REPUBLIC ………………...….....…………………………………RESPONDENT
(Being an appeal from the original conviction and sentence of Hon.S.N. Makila, RM in Oyugis Ag. Chief Magistrates Court Criminal Case No. 409 of 2013 dated 14th June 2013)
JUDGMENT
The appellant, TAZAM ODHIAMBO OWINO, was charged with the offence of house breaking and stealing contrary to section 304(1)and stealing contrary to section 279(b) of the Penal Code (Chapter 63 of the Laws of Kenya). He pleaded guilty was convicted and sentenced to 7 years imprisonment. The appellant’s appeal is against the sentence.
In the petition grounds filed on 19th December 2014, he urges the court to consider reducing the sentence of 7 years imprisonment to a reasonable one as he is married with two children who are solely dependent on him and his continued stay in prison will harm their education. He states that should the sentence be reconsidered he will abide by the law and shun criminal activity.
Sentencing is essentially the discretion of the sentencing court. An appellate court will be slow to interfere with the exercise of that discretion unless it is shown that the sentencing court took into account an irrelevant factor or that it failed to take into account a relevant factor, or that it applied a wrong principle or short of these the sentence is so harsh and excessive that an error of principle must be inferred
The main consideration the learned magistrate took into account was that the appellant was a repeat offender. It is not in dispute that the appellant was charged and convicted of the offence of house breaking and stealing in Oyugis Criminal Case No. 1058 of 2009 where he was sentenced to 3 years imprisonment which he served and was released.
Given the fact that the appellant was a repeat offender, a non-custodial sentence was out of the question and a higher custodial sentence was warranted. I however find the imposition of the maximum term of imprisonment on the higher side. I reduce the term of imprisonment to 5 years.
DATED and DELIVERED at HOMA BAY this 31st July 2015.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.