[2018] KEHC 6045 (KLR)
The court found that the trial court erred by imposing the maximum sentence of 7 years imprisonment without providing reasons, especially given that the appellant was a first offender and pleaded guilty. The Judiciary Sentencing Policy Guidelines require that mitigating factors, including a guilty plea and lack of...
Source-derived case information.
- Citation
- [2018] KEHC 6045 (KLR)
- Parties
- Appellant: Vincent Kimatu Mwololo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 7 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- CM Kariuki
- Legal Topics
- Sentencing Guidelines, Stealing by Servant, Mitigating Circumstances, First Offender, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Kimatu Mwololo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment imposed on the appellant for stealing by servant was excessive.
- 2 Whether the trial court failed to consider mitigating circumstances in sentencing the appellant.
Ratio Decidendi
The court found that the trial court erred by imposing the maximum sentence of 7 years imprisonment without providing reasons, especially given that the appellant was a first offender and pleaded guilty. The Judiciary Sentencing Policy Guidelines require that mitigating factors, including a guilty plea and lack of previous convictions, be considered to reduce the sentence. The court held that, although the motorcycle was never recovered and the appellant did not show remorse, the sentence should have been less than the maximum. Consequently, the sentence was set aside and substituted with a term of 3 years imprisonment from the date of arrest.
Court Disposition
sentence varied
Orders
- The sentence of 7 years imprisonment is set aside.
- The appellant is sentenced to 3 years imprisonment to run from the date of arrest.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA NO. 7 OF 2017
VINCENT KIMATU MWOLOLO..............APPLICANT
VERSUS
REPUBLIC.................................................RESPONDENT
JUDGMENT
INTRODUCTION
1. The Appellant was charged with stealing contrary to section 281 Penal Code.
2. Particulars being that on 11/04/2011 at Malivani Village Wote Location, Makueni District within Makueni County being a servant to George Nthenge Katumo stole one motorcycle Reg. No. KMCH 737F Make Jialing valued Kshs. 85,000/= the property of George Nthenge Katumo.
3. The Appellant pleaded guilty and was sentenced to serve 7 years imprisonment.
4. Being aggrieved by that verdict, the Appellant lodged petition and grounds of Appeal where he impugns sentence to be excessive.
5. The court will therefore focus on the sentence meted out to the Appellant.
6. The record from the trial court show that on 20/08/2015, the Appellant was taken to court for plea whereof he pleaded not guilty.
7. When the matter came for mention on 29/09/2015 he changed the plea and admitted the offence thus convicted of the offence charged.
8. The facts given were to the effect that on 11/04/2011 the accused went to George Nthenge Katumo in Paradiso and took him to church, he was then given motorcycle to operate and give him Kshs. 300/= per day.
9. After dropping the complainant he never communicated again. He later made a report at police station that his KMCH 734F Jiang valued at Kshs. 85,000/= disappeared with accused and the complainant then conducted his investigation and found the accused had sold the motorcycle in Mlolongo. He went into hiding until July 2015.
10. On 18/08/2015 he came back and was arrested at Chemole Trading Centre and escorted to Makueni police station. Motorcycle was never recovered and he was consequently charged. The logbook and receipt were produced as Exh 1.
11. The Court notes that the Reg No. in the charge sheet varies with the one in the facts that is KMCH 734F.
12. However a copy of the logbook which is on the record shows KMCH 737F corresponds with one in the charge sheet. However there is no issue raised on that.
13. When Appellant was given chance to mitigate, he only stated “look at both sides.”
14. The prosecutor stated that there was no previous record implying possibly accused was a first offender.
15. However when the court came to sentencing, the court awarded Appellant 7 years imprisonment which under Section 281 of the Penal Code Cap 63 LOK is the maximum sentence.
16. No reason was stated for awarding the maximum sentence. However the court notes that the motorcycle was never recovered and the Appellant never accounted for the proceeds for sale of the motorcycle.
17. When called to mitigate the Appellant never mitigated rather than saying “look both sides.” He never showed any remorse or repentance.
18. In the provisions No 23. 8 of the Judiciary policy guidelines on sentencing,the element of mitigating circumstances include;(7) being first offender and (10) pleading guilty at the earliest opportunity and cooperation with prosecution and police.
19. Provisions 23. 9(2) states that the effect of mitigating circumstances is to lessen the term of custodial sentence.
20. Therefore, taking into account that the Appellant pleaded guilty and was a first offender, the court ought to have given him a slightly lesser sentence.
21. The court therefore makes the following orders:-.
1) The sentence is set aside.
2) The court sentences appellant to 3 years imprisonment to run from the date of arrest.
SIGNED, DELIVERED THIS 5TH DAY JUNE, OF 2018, IN OPEN COURT.
.......................
C. KARIUKI
JUDGE