[2018] KEHC 7543 (KLR)
The High Court found that the trial magistrate erred by failing to consider key mitigating factors: the appellants were first offenders, pleaded guilty at the earliest opportunity, expressed remorse, and the stolen cows were recovered. The trial court focused solely on deterrence due to the prevalence of the...
Source-derived case information.
- Citation
- [2018] KEHC 7543 (KLR)
- Parties
- Appellant: Wycliffe Shikokodi Lumula; Appellant: Patrick Kigame; Appellant: Willis Oryumu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to time served; appellants ordered released unless otherwise lawfully held
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Stock Theft, Plea of Guilty, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliffe Shikokodi Lumula
Appellant
Patrick Kigame
Appellant
Willis Oryumu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for stock theft was excessive or based on wrong principles.
- 2 Whether the trial court failed to consider mitigating factors such as plea of guilty, first offender status, and recovery of stolen property.
Ratio Decidendi
The High Court found that the trial magistrate erred by failing to consider key mitigating factors: the appellants were first offenders, pleaded guilty at the earliest opportunity, expressed remorse, and the stolen cows were recovered. The trial court focused solely on deterrence due to the prevalence of the offence, resulting in a sentence that was excessive in the circumstances. The appellate court held that these omissions constituted an error in principle, justifying interference with the sentence. Considering the period already served and all circumstances, the High Court reduced the sentence to time served and ordered the appellants' release unless otherwise lawfully held.
Court Disposition
sentence reduced to time served; appellants ordered released unless otherwise lawfully held
Orders
- The sentence of six years imprisonment is set aside and substituted with a sentence of time served.
- Each appellant is to be released unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
(CORAM: MAJANJA J.)
CRIMINAL APPEAL NO. 84 OF 2016
BETWEEN
WYCLIFFE SHIKOKODI LUMULA..........1ST APPELLANT
PATRICK KIGAME......................................2ND APPELLANT
WILLIS ORYUMU........................................3RD APPELLANT
AND
REPUBLIC..........................................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. E. Malesi, SRM delivered on 2nd November 2016 at the Kakamega Chief Magistrate’s Court)
JUDGMENT
1. The appellant WYCLIFFE SHIKOKODI LUMULA, PATRICK KIGAMEand WILLIS ORYUMU were convicted on their own plea of guilty for the offence of stealing stock contrary to section 278 of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars were that they with others not before the court stole two cows the property of ANDREW MUSONYE on 27th April, 2015 at Mukomari Village, Shanjero Sub-location, Eregi Location of Kakamega County. They were each sentenced to six (6) years imprisonment.
2. The appellants appeal is primarily against the sentence. The appellate court will not interfere in the sentence unless it is shown that the trial court took into account an irrelevant factor, or that a wrong principle was applied or short of that, the sentence was so harsh or excessive that it manifests an error of principle (see Ogalo s/o Owuora v R [1954] EACA 270, Nilsson v R [1970] EA 599 and Wanjema v R [1971] EA 493).
3. In sentencing notes, the trial magistrate noted that the offence was rampant and in his view a deterrent sentence of six years imprisonment was warranted. I note that indeed the maximum sentence under the section 278 of the Penal Code is fourteen years’ imprisonment.
4. The trial magistrate did not take into account that the appellants were first offenders and that they pleaded guilty at the earliest opportunity and that they expressed remorse. He also did not take into account the fact that the subject cows were actually recovered. I have also noted that two other co-accused who had not pleaded guilty were discharged after the matter was withdrawn under section 87(a) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).
5. Having considered all circumstances and noting that he appellants have been in prison since June 2015, I reduce the sentence to time served. They are each ordered released unless otherwise lawfully held.
DATED and DELIVERED at KAKAMEGA this 6th day of April 2018.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Ng’etich, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.