[2004] KEHC 2351 (KLR)
The court found that the evidence adduced at trial was clear and overwhelming, establishing that the appellant obtained KES 5,500 from the complainant by falsely pretending he would sell him a TV set, solar panel, and radio. The identification of the appellant was not in doubt. However, the court held that the...
Source-derived case information.
- Citation
- [2004] KEHC 2351 (KLR)
- Parties
- Appellant: Tom Omosa Nyamosi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 131 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on conviction dismissed; appeal on sentence allowed in part.
- Legal Topics
- Obtaining by False Pretences, Sentencing Principles, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Omosa Nyamosi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for obtaining money by false pretences was supported by clear and overwhelming evidence.
- 2 Whether the sentence of two years imprisonment was excessive given the circumstances.
Ratio Decidendi
The court found that the evidence adduced at trial was clear and overwhelming, establishing that the appellant obtained KES 5,500 from the complainant by falsely pretending he would sell him a TV set, solar panel, and radio. The identification of the appellant was not in doubt. However, the court held that the sentence of two years imprisonment was excessive given that the appellant was a first offender and the amount involved was KES 5,500. The court substituted the custodial sentence with a fine of KES 10,000 in default one year imprisonment, finding this to be a more proportionate penalty in the circumstances.
Court Disposition
Appeal on conviction dismissed; appeal on sentence allowed in part.
Orders
- Sentence of two years imprisonment set aside and substituted with a fine of KES 10,000 in default one year imprisonment.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO.131 OF 2003(From original conviction and sentence of the CM’s court at Kisii in criminal case No.1467 of 2001. )TOM OMOSA NYAMOSI ………………………………………………. APPELLANT VERSUS REPUBLIC …………………………………………………………….. RESPONDENT JUDGMENT: The appellant was convicted by the Nyamira District Magistrate for the offence of obtaining money by false pretences c/s 313 Penal Code and was sentenced to two years imprisonment.
On 26th July 2001 in Kisii Town he obtained shs.5,500/= from Zakari Ochoi by falsely pretending he would sell him a T.V. set, Solar Panel and Radio.
I have gone through the evidence. I am satisfied that the evidence adduced was clear and overwhelming. The appellant was given money during the day. He was properly identified and the complainant had no doubts the person he gave the money.
The magistrate reached the proper conclusion on the evidence on record.
On the issue of sentence I found it is excessive. Appellant obtained shs.5,500/=. He was a first offender and though he did not say anything in mitigation two years imprisonment was in the higher side.
I therefore set aside the sentence of two years and substitute it with a fine of shs.10,000/= i/d one year imprisonment.
It is so ordered.
KABURU BAUNI JUDGE 6/2/2004
Signed, dated and delivered this 6th day of February 2004 in presence of the appellant.
KABURU BAUNI JUDGE