[2014] KEHC 8800 (KLR)
The High Court found that the trial magistrate misdirected herself by relying on the accused persons' demeanor rather than their mitigation and the objective report of the Probation Officer. The magistrate's approach was inconsistent with the principles of sentencing, which require consideration of mitigation and...
Source-derived case information.
- Citation
- [2014] KEHC 8800 (KLR)
- Parties
- Appellant: Thomas Magabe; Appellant: Chacha Nyamohanga Shadrack; Appellant: Titus Mwita; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 43, 44 & 45 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Sentencing Principles, Community Service Orders, Alcohol Related Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Thomas Magabe
Appellant
Chacha Nyamohanga Shadrack
Appellant
Titus Mwita
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in sentencing the appellants to a fine and imprisonment instead of considering a community service order.
- 2 Whether the magistrate misdirected herself by relying on the demeanor of the accused rather than their mitigation.
Ratio Decidendi
The High Court found that the trial magistrate misdirected herself by relying on the accused persons' demeanor rather than their mitigation and the objective report of the Probation Officer. The magistrate's approach was inconsistent with the principles of sentencing, which require consideration of mitigation and objective circumstances. The court held that the appropriate sentence, given the nature of the offence and the circumstances, was a community service order rather than a custodial sentence or fine. The sentence of a fine and imprisonment was therefore quashed and substituted with a community service order for each appellant for two months, and any fines paid were to be refunded.
Court Disposition
appeal_allowed
Orders
- The sentence of a fine and imprisonment is quashed.
- Each appellant is to serve a community service order for two months.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 43 OF 2014
CONSOLIDATED WITH
CRIMINAL APPEALS NOS. 44 AND 45 OF 2014
BETWEEN
THOMAS MAGABE ……………………………. 1ST APPELLANT
CHACHA NYAMOHANGA SHADRACK …... 2ND APPELLANT
TITUS MWITA ……………………………........ 3RD APPELLANT
AND
REPUBLIC ..…………………………………….. RESPONDENT
(Being an appeal from the original sentence in Criminal Case No. 517 of 2014 at Senior Resident Magistrate’s Court at Kehancha, Hon. R. Aganyo, RM dated on 17th July 2014)
JUDGMENT
The three appeals were consolidated as they arose from the same charge and conviction. The appellants were charged with the offence of being drunk and disorderly contrary to section 33(1) as read with section 33(2) of the Alcoholic Drinks Control Act, No 4 of 2010. They pleaded guilty and were sentenced to pay a fine of Kshs.500 and in default to serve 3 months in prison. They appeal against the sentence.
According to the record, after the conviction and mitigation, the learned magistrate adjourned the proceedings for the Probation Officer to interview the accused on the possibility of making a community service order. The officer returned and noted that, “the 3 accused persons have been interviewed and they are asking for fines other than Community Service.”
In sentencing the accused, the learned magistrate observed as follows, “Considering the charge the 3 accused persons are facing, I note from their demeanor that they are not remorseful for their actions. In my view, they do not respect the Court’s decision to place them on CSO and seem not to acknowledge they are wrong. To teach them a lesson and to deter others, I fine them Kshs.500/- and sentence them to serve 3 months as provided by the law.”
I have considered the record and I think the learned magistrate’s finding was inconsistent with their mitigation. They were all remorseful and asked for leniency. It was therefore a misdirection on the part of the learned magistrate to allow the accused to consult the Probation Officer as to the nature of the sentence. It is the duty of the Probation Officer to present an objective report on the accused’s circumstances and for the Court to consider in light of the mitigation and thereafter impose the appropriate sentence.
I therefore, quash the sentence and substitute it with an order of Community Service for each of the accused for two months. The fines paid shall be refunded to them.
DATED and DELIVERED at MIGORI this 15th day of August 2014
D. S. MAJANJA
JUDGE
Mr Kisera instructed by Omonde Kisera and Company Advocates for the appellant.
Ms Owenga, Prosecution Counsel, instructed by the Office of the Director of Public Prosecution for the respondent.