Felix Odhiambo Aguko v Republic [2014] KEHC 8837 (KLR)

IN THE HIGH COURT AT HOMA BAY

CRIMINAL APPEAL NO. 46 OF 2014

BETWEEN

FELIX ODHIAMBO AGUKO......…...….……….….. APPELLANT

AND

REPUBLIC ………...…………………………….. RESPONDENT

(Appeal from the original conviction and sentence in Criminal Case No. 729 of 2014 at the Chief Magistrates Court at Homa Bay, Hon. P. MAYOVA Ag. SRM, dated 23rd May 2014)

JUDGMENT

1. The appellant was charged with the offence of stealing contrary to section 275 of the Penal Code (Chapter 63 of the Laws of Kenya).  He pleaded guilty to stealing an ATM card valued at Kshs.1,020/= the property of one  ENO on 19th May 2014 where he had gone to renovate a building.  He also stole Kshs.400/=.  He was sentenced to 18 months in prison.

2. Mr. Oluoch concedes that this appeal, being only against sentence.  The sentence was excessive in the circumstances as the appellant was a first offender, pleaded guilty and showed remorse.  The property was also recovered save the Kshs.400/=.

3. A non-custodial sentence ought to have been considered.  The appellant has served 6 months in prison in which time he has reflected on his behaviour.

4. I accordingly set aside sentence and substitute it with one for time served.  He is set free unless otherwise lawfully held.

DATED and DELIVERED at HOMA BAY this 28th day of November 2014

D.S. MAJANJA

JUDGE

Appellant in person.

Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.