Kennedy Ochieng Ongolo v Republic [2014] KEHC 8820 (KLR)

IN THE HIGH COURT AT HOMA BAY

CRIMINAL APPEAL NO. 76 OF 2014

BETWEEN

KENNEDY OCHIENG ONGOLO…….…......……......... APPELLANT

AND

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

(Being an appeal from the original conviction and sentence in Criminal Case No. 357 of 2010 at Senior Resident Magistrate’s Court at Homa Bay, Hon. O.J. Ong’ondo, RM dated on 11th  March  2010)

JUDGMENT

The appellant was charged with the offence of stealing stock contrary to section 278of thePenal Code (Chapter 63 of the Laws of Kenya).  The particulars were that on 23rd December 2009 at Radiro village in Homa Bay County he stole one goat valued at Kshs.2000/= the property of Elisha Okoth Chuchu.  He also faced an alternative charge based on the same facts of handling stolen goods contrary to section 322 of thePenal Codeand a second count of having suspected stolen property under section 323of thePenal Code.

He pleaded guilty on his own accord and was sentenced to 10 years imprisonment on the 1st count and 1 year imprisonment on the second count.

Mr. Oluoch, counsel for the State, readily conceded that the sentence was manifestly harsh and excessive and that the conviction on the second count as an alternative count was improper.

I agree that the concession was proper as the sentence was harsh.  The accused was a first offender and the property was recovered.  The appellant expressed remorse.

I therefore allow the appeal to the extent that I set aside the conviction on the second alternative count and reduce the sentence on the first count to time served.

The appellant is set free unless otherwise lawfully held.

DATEDandDELIVEREDatHOMA BAY this 6th day of November 2014.

D.S. MAJANJA

JUDGE