[2012] KEHC 1368 (KLR)
The court found that the sentence of four years imprisonment imposed on the appellant for the offence of obtaining by false pretence was illegal because it exceeded the statutory maximum of three years provided under Section 313 of the Penal Code. The appellant had pleaded guilty and was a first offender, which the...
Source-derived case information.
- Citation
- [2012] KEHC 1368 (KLR)
- Parties
- Appellant: Tom Okoth Anyumba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 106 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; appeal on sentence allowed in part
- Legal Topics
- Obtaining by False Pretence, Sentencing Illegality, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Okoth Anyumba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed exceeded the statutory maximum for the offence of obtaining by false pretence.
- 2 Whether the plea of guilty and status as a first offender should affect sentencing.
Ratio Decidendi
The court found that the sentence of four years imprisonment imposed on the appellant for the offence of obtaining by false pretence was illegal because it exceeded the statutory maximum of three years provided under Section 313 of the Penal Code. The appellant had pleaded guilty and was a first offender, which the court considered as mitigating factors. Consequently, the court reduced the sentence to two years imprisonment, ensuring compliance with the law and recognizing the appellant's plea and status as a first offender.
Court Disposition
sentence varied; appeal on sentence allowed in part
Orders
- The sentence of four years imprisonment is set aside and substituted with a sentence of two years imprisonment.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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TOM OKOTH ANYUMBA …......................................................APPELLANT
VERSUS
REPUBLIC ….........................................................................RESPONDENT
(From the Original Conviction and sentence in the Criminal case No. 3648 of 2011 of the Chief Magistrate's Court at Mombasa – J. GANDANI – SPM)
JUDGMENT
The Accused JOHN OKOTH ANYUMBA pleaded guilty on the charge of obtaining money by false pretence contrary to Section 313 of the Penal Code.
The particulars of which were that:
“On the 24th day of November, 2011 at Canon Towers in Mombasa within the Coast Province with intent to defraud obtained from JOHN OGONDA the sum of Ksh. 210,000/= in cash, by falsely pretending that he was in a position to provide a truck for a container for transportation to Malaba, a fact he knew not to be true”.
Section 313 of the penal code provides:
“Any person who by any false pretence and with intent to defraud, obtaining from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years”.
In the present case the Accused pleaded guilty to the charge. He did not waste Judicial time. He was treated as a first offender. The sentence of four (4) years when the law provides for a maximum of three years is clearly illegal.
The imprisonment for a term of 4 years is hereby reduced to two (2) years.
Dated, delivered and signed in open Court at Mombasa this 31stday of October, 2012.
….......................
M.MUYA
JUDGE
In the presence of:-
Mr. Gioche for the state
Court clerk Musundi
Accused