NELSON KIPROTICH MUNYUR v REPUBLIC [2011] KEHC 822 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Coram: F Azangalala J.

CRIMINAL APPEAL NO. 59 OF 2010

BETWEEN

NELSON KIPROTICH MUNYUR :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

AND

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

Being an appeal from the Ruling of Hon. N. Shiundu, Senior Resident Magistrate dated 28/12/2009 at Eldoret Chief Magistrate’s Court in Criminal Case No. 7763 of 2009

JUDGMENT

The appellant, Nelson Kiprotich Munyur, was charged before the Eldoret Chief Magistrate’s court with the offence of stealing stock contrary to section 278 of the penal Code. He also faced an alternative charge of handling stolen property contrary to section 322 (2) of the Penal Code. He pleaded guilty to the main charge of stealing and was convicted and sentenced to serve two (2) years imprisonment.His Petition of appeal showed that he was not satisfied with both conviction and sentence and therefore appealed against both.

When the appeal came up before me for hearing however, he abandoned the appeal against conviction and only urged his appeal against sentence.

The brief facts which were before the Chief Magistrate’s Court (N. Shiundu SRM) were that on the night of 21st and 22nd December, 2009, the complainant, Samson Rotich, tied up his cow. He woke up on 22nd December, 2009 and found the cow missing. He informed his neighbours who mounted a search for the animal and also reported the loss to Eldoret Police Station.

The appellant was later seen driving the said cow. Members of the public arrested him with the cow and took him to the police station where he was charged as stated. The value of the cow was given as Kshs 30,000/=.

The appellant admitted those facts before the learned Senior Resident Magistrate who duly convicted him of the principal charge of stealing stock contrary to section 278 of the Penal Code and sentenced him to serve two (2) years imprisonment.

Given the facts which were presented to the learned Senior Resident Magistrate, the appeal against conviction stood no chance of success as the appellant’s plea was clearly unequivocal. I am not therefore surprised that the appellant abandoned his appeal against conviction. The learned Senior Deputy Prosecution Counsel Mr. Oluoch, opposes the appeal contending that the appeal is incompetent.

It turned out that at the time of commission of the offence, the appellant was aged about 17 years only. He was therefore a minor and the sentence of two years imprisonment was obviously improper. The record further shows that the appellant was a first offender and sought forgiveness.The learned Senior Resident Magistrate did not appear to regard those facts before passing sentence.

In the premises, I am entitled to interfere. The appellant was in prison for a period of nine (9) months before being admitted to bail pending this appeal. In my view, the appellant has learnt his lesson. I allow his appeal against sentence. The sentence of two (2) years imprisonment is hereby set aside and is substituted therefore with the period already served.

The appellant should therefore be set at liberty forwith unless otherwise lawfully held.

Order accordingly.

DATED AND DELIVERED AT ELDORET THIS

17TH DAY OF NOVEMBER, 2011.

F. AZANGALALA

JUDGE

Read in the presence of:-

1. The Nelson Kiprotich Munyur, appellant in person and

2. Mr. Kabaka for the Republic.

F. AZANGALALA

JUDGE

17/11/2011