[2005] KEHC 1960 (KLR)
The court found that the appellant was properly convicted on his own unequivocal plea of guilty, and the facts were read and admitted by him. The issue of complainants giving evidence did not arise. However, the sentence imposed was excessive given the value of the stolen goods (Kshs. 2,260), the maximum sentence...
Source-derived case information.
- Citation
- [2005] KEHC 1960 (KLR)
- Parties
- Appellant: Thadeus Muumo Mulwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 275 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- A. Ong’injo
- Legal Topics
- Burglary, Stealing, Plea of Guilty, Sentencing, Corporal Punishment, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thadeus Muumo Mulwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant on his own plea of guilty was proper.
- 2 Whether the sentence imposed was excessive in the circumstances.
- 3 Whether the imposition of corporal punishment was lawful.
Ratio Decidendi
The court found that the appellant was properly convicted on his own unequivocal plea of guilty, and the facts were read and admitted by him. The issue of complainants giving evidence did not arise. However, the sentence imposed was excessive given the value of the stolen goods (Kshs. 2,260), the maximum sentence provided by law (10 years), and the fact that the appellant had already spent over two years in remand. Additionally, the imposition of corporal punishment was unlawful as it had been abolished. Consequently, the court set aside the sentence of 7 years imprisonment and 3 strokes of the cane, and ordered a probation report to guide the appropriate sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 7 years imprisonment is set aside.
- The order for 3 strokes of the cane is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NO.275 OF 2003
THADEUS MUUMO MULWA………………..…..…APPELLANT
VERSUS
REPUBLIC……………………………………...…....RESPONDENT
J UD G E M E N T
The Appellant has appealed against the original conviction and sentence in Criminal Case No.353 of 2003 of the Resident Magistrate’s Court, at Narok.
In that case, the appellant had been charged for the offence of burglary and stealing, contrary to Section 304(2) and 279(b) of the Penal Code. The facts of the prosecution case as stated in the charge sheet are as follows:-
“On the 17th day of June, 2003 at Spear Plot Narok Township in Narok District of the Rift Valley Province, broke and entered the dwelling house of TOM MUTUNGI NDETI with intent to steal therein and did steal therein one long trouser, 4 Kg of honey and Cash Kshs.150/- all valued at 2260/- Kenya Shillings the property of the said TOM MUTUNGI NDETI”
When the Appellant appeared in Court on 19th June, 2003, he pleaded “Guilty”and was convicted accordingly. On the same day, he was sentenced to 7 years imprisonment with hard labour and 3 strokes of the cane – for the 1st limb.
As far as the second limb was concerned, the learned Magistrate sentenced him to 3 years imprisonment. He also ordered that the sentences should run concurrently. During the appeal, the Appellant lamented that the sentence imposed was very lengthy and that both his parents are dead. He also revealed to the Court that he was married with two children. Besides the above, the Appellant also explained that the complainants were not called to give evidence and that the conviction was not proper.
On the other hand, Mr. Koech, Senior State Counsel submitted that the Appellant was convicted and sentenced on his own plea of “Guilty”. He was of the view that the Appellant can only appeal against sentence. On that point he invited the Court to exercise its own discretion.
This Court has carefully perused the above together with the record of appeal. The record clearly show that the Appellant was convicted on his own plea of “Guilty” and the facts were read over to him before he admitted them. So the question of the complainants being called to give evidence does not arise at all. The Court finds that the Appellant was properly convicted by the learned Magistrate, viz Mr. P. Okile, Resident Magistrate.
As far as the sentence is concerned, the Court notes that the maximum sentence as provided by law is 10 years imprisonment. In this case, the total value of the stolen goods was a paltry Kshs.2,260/-. The Court notes that the Appellant has been in remand for slightly over 2 years. Given the circumstances of the case, I hereby set aside the sentence of 7 years. Besides the above, I hereby set aside the 3 strokes of the cane since corporal punishment has been outlawed.
Instead of the above sentence, the Court hereby calls for a Probation Report on 26th July, 2005. The Report will act as a guide to the sentence that the court will impose.
It is to that extent that the appeal succeeds.
MUGA APONDI
JUDGE
21ST JULY, 2005
Judgment read signed and delivered in open Court in the
presence of the Appellant and Mr. Gumo, Assistant Deputy
Public Prosecutor.
MUGA APONDI
JUDGE
21ST JULY, 2005