Jane Wanjiku Gathuku v Republic [2004] KEHC 889 (KLR)

IN THE HIGH COURT OF KENYA

AT NYERI

HIGH COURT CRIMINAL APPEAL NO. 398 OF 2003

JANE WANJIKU GATHUKU …………………………………………. APPELLANT

VERSUS

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

(Appeal from Original Judgment and Conviction in Princi pal Magistrate’s Court Criminal Case No. 2380 of 2003 dated 7 th November 2003 by Mr. J. N. Onyiego –R.M. –Kerugoya)

J U D G M E N T

Jane Wanjiku Gathuku hereinafter referred to as the Appellant was convicted by the Resident Magistrate Kerugoya on her own plea of guilty to three offences as follows: Forgery contrary to section 349 of the Penal Code, uttering a false document contrary to section 353 as read with section 389 of the Penal Code, and Attempting to Obtain money by false pretences contrary to section 313 as read with section 389 of the Penal Code. She was sentenced to serve 3 years imprisonment on each count. She has now appealed against her sentence contending that the same was excessive and that the trial magistrate failed to take her mitigation into account.

The Appellant further maintains that the sentence in respect of count 3 was unlawful as it was more than that provided under section 389 of the Penal Code. It is apparent that in respect of count 1 and 2 the Appellant was sentenced to the maximum sentence provided which is 3 years. The trial magistrate does not appear to have taken note of the fact that the Appellant was a 1st offender or the fact that she had pleaded guilty or her mitigating circumstances. The trial magistrate appears to have been influenced by his conclusion that the Appellant was not remorseful and yet there is no lack of remorse evident on the court record. I concur with the Appellants advocate that the sentence imposed was manifestly excessive.

I further find that the sentence in respect of count 3 was indeed unlawful as it was more that that provided under section 389 of the Penal Code. I do therefore allow this appeal set aside the sentences imposed in respect of each count and substitute thereof an order that the sentence of the Appellant in respect of each count shall be reduced to the period already served.

The Appellant shall therefore be forthwith released unless otherwise lawfully held.

Dated at Nyeri this 19th day of November 2004

H. M. OKWENGU

JUDGE