[2006] KEHC 380 (KLR)
The court found that the sentence of five years imprisonment for a first offender who pleaded guilty and had most of the stolen items recovered was excessive. Furthermore, the imposition of corporal punishment was unlawful as the law had been amended to abolish such punishment. The court therefore set aside the...
Source-derived case information.
- Citation
- [2006] KEHC 380 (KLR)
- Parties
- Appellant: Yusuf Otieno Nyamasi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 151 of 2003
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- appeal allowed
- Judges
- K Bauni
- Legal Topics
- Sentencing Principles, Corporal Punishment, First Offender, Burglary, Theft, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yusuf Otieno Nyamasi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of five years imprisonment for a first offender who pleaded guilty was excessive.
- 2 Whether the sentence of corporal punishment (3 strokes of the cane) was lawful after the amendment abolishing corporal punishment.
Ratio Decidendi
The court found that the sentence of five years imprisonment for a first offender who pleaded guilty and had most of the stolen items recovered was excessive. Furthermore, the imposition of corporal punishment was unlawful as the law had been amended to abolish such punishment. The court therefore set aside the original sentence and substituted it with a sentence for the period already served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The sentence of five years imprisonment and three strokes of the cane in each limb is set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA OF KISII
Criminal Appeal 151 of 2003
YUSUF OTIENO NYAMASI ……….…………… APPELLANT
VERSUS
REPUBLIC ………………………….………… RESPONDENT
(From original conviction and sentence of the SRM’s court at Oyugis in criminal case No. 206 of 2003)
RULING:
Appellant was convicted for offence of Burglary and stealing contrary to s.302 (2) and 279 (b) Penal Code. He was sentenced to five years imprisonment on each limb to run concurrently and to receive 3 strokes of the cane in each limb. He has appealed against sentence only.
The appellant pleaded guilty to the offence and was a first offender. Most of the stolen items were recovered. In the circumstances a sentence of five years for a first offender was excessive.
As for the sentence of 3 strokes of the cane consequently the law was amended and corporal punishment was done away with.
From the above I allow the appeal and set aside the sentence of five years imprisonment and 3 strokes of the cane in each limb and since the appellant has already served 3 years of sentence I substitute it with one for the period already served.
Appellant be set at liberty forthwith unless otherwise lawfully held.
Dated 9th March 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
Mr. Kemo for State