Kangaa v Republic [2022] KEHC 11224 (KLR)

Kangaa v Republic (Criminal Appeal E040 of 2021) [2022] KEHC 11224 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11224 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E040 of 2021

GMA Dulu, J

June 15, 2022

Between

Erastus Mule Kangaa

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. J.N Mwaniki in Makueni Chief Magistrate’s Court CMCR Case No.108 of 2019 pronounced on 2nd April 2019)

Judgment

1. The appellant was charged with another with burglary contrary to section 304(2) of the Penal Code and stealing contrary to section 279 (b) of the Penal Code. The particulars of the offence were that on the night of 21st – 22nd February 2019 at unknown time at Kathulumbi Market, Mbooni East Sub-County in Makueni County broke and entered the shop of Mumo Mulwa with intent to steal and did steal from therein 20 litres, 3 jiricans of salit cooking oil, 20 litres, 3 jericans of postman cooking oil, 10 litres, 2 jericans of halisi cooking oil, one box of fahari tea leaves, one parcel of sportman cigarettes, one parcel of rooster cigarettes, one pair of safari boot shoes, cash Kshs.5,000/= the property of the said Mumo Mulwa all valued at Kshs.28,000/=.

2. He pleaded guilty to the charge, together with his co-accused one Titus Masika Simon. He was sentenced to six (6) years imprisonment on each limb of the charge, sentences to run concurrently, which was thus a cumulative sentence of six (6) years.

3. He has now come, to this court on appeal against sentence. He filed written submissions, while the Assistant Director of Public Prosecutions Mr. Tanui for the state made oral submissions, in which he left it to the court to decide, but said that the sentence imposed was not excessive.

4. On my part, I note that the maximum sentence under section 279(b) of the penal code is 14 years imprisonment, while the maximum sentence under section 304(2) of the Penal Code is 10 years imprisonment.

5. Indeed, the sentence imposed by the magistrate herein is within the law. However, from the facts on record, some of the items stolen were recovered, and the appellant was a first who offender whopleaded guilty and did not waste the court’s time and asked for leniency. In those circumstances, in my view, a sentence of four (4) years imprisonment on each on each limb of the charge would be sufficient.

6. I thus allow the appeal on sentence. I set aside the sentence imposed by the trial court, and order that instead, the appellant will serve four (4) years imprisonment on each limb of the charge(concurrent) from the date he was sentenced by the trial court. That would be 4 years imprisonment from the date of sentence by the trial court.

DELIVERED, SIGNED & DATED THIS 15TH DAY OF JUNE 2022, IN OPEN COURT AT MAKUENI.............................GEORGE DULUJUDGE