[1992] KEHC 78 (KLR)
The court held that the application of section 179 of the Criminal Procedure Code was proper and not affected by the presence of an alternative charge. There is no legal authority to support the proposition that section 179 does not apply where an alternative charge is framed. Therefore, the conviction for theft...
Source-derived case information.
- Citation
- [1992] KEHC 78 (KLR)
- Parties
- Appellant: Tokobitu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 508 of 1992
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence allowed to the extent of reducing sentence to period already served.
- Legal Topics
- Theft, Sentencing, Alternative Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tokobitu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant for theft under section 275 of the Penal Code was proper when he was charged with stealing from the person under section 279(a) and faced an alternative charge of handling stolen property.
- 2 Whether the sentence of 2 years imprisonment was harsh and excessive given the circumstances.
Ratio Decidendi
The court held that the application of section 179 of the Criminal Procedure Code was proper and not affected by the presence of an alternative charge. There is no legal authority to support the proposition that section 179 does not apply where an alternative charge is framed. Therefore, the conviction for theft under section 275 was lawful. However, considering that the appellant was a first offender, remorseful, the sole breadwinner, and that the stolen amount was recovered, the sentence of 2 years imprisonment was deemed harsh and excessive. The period already served (over 6 months) was considered sufficient punishment for the offence.
Court Disposition
Appeal against conviction dismissed; appeal against sentence allowed to the extent of reducing sentence to period already served.
Orders
- The appeal against conviction is dismissed.
- The appeal against sentence is allowed to the extent that the sentence is reduced to a period resulting in the appellant's immediate release unless otherwise lawfully held.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
Tokobitu v Republic
High Court, at Mombasa February 3, 1992 Mbaluto J
Criminal Appeal No. 508 of 1992
February 3, 1992,Mbaluto J delivered the following Judgment.
The appellant was charged in the court below on one count of stealing from the person contrary to Section 279(a) of the Penal Code and in the alternative with handling stolen property contrary to section 327 (2) of the Penal Code. After trial he was convicted of theft contrary to section 275 of the Penal code and sentence to 2 years imprisonment. His appeal to this court is against conviction and sentence.
The only ground against conviction urged before me was that the application of S. 179 of the Criminal Procedure Code to convict the appellant for theft contrary to section 275 when he had been tried for stealing from the person contrary to section 279(a) of the Penal Code was wrong in view of the fact that the appellant faced an alternative charge of handling stolen property. I do not think that submission has any merit. The operation of S.179 of the Criminal Procedure Code is not in any way affected by the manner the charge is framed. Further there is no authority for stating that the section does not apply where an alternative charge has been framed. That ground has no substance.
All the other grounds of appeal against conviction were abandoned.
As regards sentence the amount stolen was all recovered. The appellant was a first offender and was remorseful. He was the sole breadwinner of his family and he pleaded for leniency. In those circumstances, a sentence of 2 years imprisonment was harsh and excessive. The appellant has now been in jail for a period in excess of 6 months which I consider sufficient punishment for this sort of offence.
For the above reasons the appeal against conviction is dismissed but the appeal against sentence succeeds to the extent that the sentence is reduced to such a period as will result in the appellant’s immediate release unless he is other wise lawfully held.