Joseph Shinai Kipukei v Republic [2019] KEHC 509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CRIMINAL REVISION NO 1 OF 2019

JOSEPH SHINAI KIPUKEI.....................................................APPLICANT

VERSUS

REPUBLIC..............................................................................RESPONDENT

(Being Revision from the original judgement, conviction and sentence of Hon. Oanda, SPM,

in Kilgoris SPM’S, Court in Criminal Case No 272 of 2019,

Republic v Joseph Shinai Kipukel)

ORDER IN REVISION

1. The applicant was convicted on his own plea of guilty in respect of the offence of destroying cultivated crops namely sugar cane contrary to section 334 (b) of the Penal Code (Cap 63) Laws of Kenya and was sentenced to three years’ imprisonment.

2. He has applied for revision of his sentence only. In his grounds in support of revision, the applicant has stated that he was a first offender, old and sickly man. He has urged the court to impose upon a non-custodial sentence. He also has urged the court to take into account that he has learned a lesson for the period he has been in prison. He  has also urged the court to take into that he is remorseful.

3. The offence with which the applicant is convicted carries a maximum sentence of fourteen years. He destroyed ten acres of sugar cane by ploughing using a tractor. The sugar cane belonged to his wife, who had planted the sugar cane in order to enable her pay school fees for their children in secondary school. The matter was reported to the police, who arrested the applicant and charged him with this offence.

4. Furthermore, an agricultural officer visited the ploughed sugar cane farm and assessed the damage. He estimated the value of the destroyed sugar cane at Kshs 662, 952/=.

5. I have considered both the mitigating and aggravating factors. I find that the quantity of the destroyed sugar cane was huge. The estimated value was Kshs 662,952/=, which is a colossal sum of money. The sugar cane belonged to his wife, planted for the purpose of paying fees for their  secondary school going children. These are aggravating factors.

6. The mitigating factors are that he is a first offender and that he pleaded guilty. He is also remorseful.

7. After taking into account both the mitigating and aggravating factors, I find that the aggravating factors outweigh the mitigating factors. I find that the sentence of three years imprisonment was merited.

8. In the premises, I find no merit in the applicant’s application, which I hereby dismiss.

Order signed, dated and delivered in open court at Narok this 4th day of December, 2019 in the presence of Mr. Yenko holding brief for Mr. G. R. Otieno and for the applicant and Mr. Omwega for the respondent.

J. M.  Bwonwong’a

Judge

4/12/2019