Johana Musyoka Kioko v Republic [2004] KEHC 1027 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

APPELLATE SIDE

CR.APPEAL NO. 129 OF 2004

(Being an appeal from Original Criminal Conviction and sentence in Criminal Case

No.264 of 2004 of the Resident Magistrate's Court at Kaloleni –Andayi –W.F.  –

RMJOHANA MUSYOKA KIOKO ……………………………………… APPELLANTVERSUSREPUBLIC …………………………………………………………... RESPONDENTCoram:    Before Hon. Justice Mwera

Ademba for the State

In person Appellant, present

Court clerk –Sango

J U D G M E N T

The appellant was charged under S. 305(1) Penal Code in that on 1-4-2004 at Kaliang’ombe Kilifi he entered a dwelling house of Dena Mwaringa with intent to commit a felony of theft therein. He pleaded guilty in what appears a regular plea whereupon a prison term of 4 years was imposed.

By the petition of appeal herein, it was stated that the appellant was remorseful, the sole breadwinner and a first offender. That the appellant was an aged person and the sentence was harsh.

The learned State Counsel seemed to agree with the appellant noting that besides being a first offender, the appellant was seriously beaten and injured by the members of the public at the time of his arrest.

The offence under S.305 (1) Penal Code carries a maximum term of 5 years in prison. Here the learned trial magistrate handed down some 4 years – no doubt a lawful sentence but seemingly on the higher side. In the circumstances of this case that sentence is set aside and substituted with one of one (1) year imprisonment. Had the appellant not been imprisoned his case should have appropriately been one of community service order. Save for the substituted sentence, this appeal is dismissed.

Judgment delivered on 15th November, 2004. J.W. MWERAJUDGE