RASHID BURALE NOOR v REPUBLIC [2006] KEHC 724 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Criminal Appeal 96 of 2004

(From original conviction(s) and Sentence(s) in Criminal Case No. 911 of 2003

of the Senior Resident Magistrate’s Court at Garissa (J.G. King’ori – SRM)

RASHID BURALE NOOR……....………………….………..APPELLANT

VERSUS

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

J U D G M E N T

RASHID BURALE NOOR pleaded guilty to STOCK THEFT contrary to Section 278 of the Penal Code.  He was sentenced to 7 years imprisonment.  He lodged his appeal against sentence alone saying that he was remorseful for the offence and sought the courts leniency.

MISS NYAMOSI learned counsel for the State did not oppose the appeal.  Learned counsel submitted that the trial magistrate misdirected himself in law when he found that the offence carried a minimum sentence of 7 years.  The learned counsel submitted that for the theft of 2 goats, seven years imprisonment was excessive.

I have carefully considered this appeal.  The learned trial magistrate made the following observations before sentencing the Appellant.

“Sentence

Accused has pleaded guilty to the charge and is treated as a first offender.  Offence is extremely notorious and provides for a minimum sentence and maximum sentence of 7 and 14 years imprisonment with hard labour.  In view of the accused’s record and mitigation, the court will impose the minimum sentence.  Accordingly the accused is sentenced to serve 7 years imprisonment with hard labour.”

The minimum sentence of 7 years imprisonment for this offence was removed by Act No. 22 of 1987.  The section now provides that a person convicted under this section is liable to imprisonment for a period not exceeding 14 years.  The learned trial magistrate therefore misdirected himself on a point of law and consequently imposed a harsh and excessive sentence in the circumstances.

I have considered that the Appellant is a family man, had pleaded guilty to the charge saving courts’ time and was a first offender.  I have also considered that he is remorseful and has sought for leniency, I will set aside the sentence of 7 years imprisonment and in substitution thereof order that the Appellant serve 3 years imprisonment from the date of sentence in the lower court (9th December 2003).

Dated at Nairobi this 5th day of April 2006.

LESIIT.  J.

JUDGE

Read, signed and delivered in the presence of;

Appellant present

Miss Nyamosi for State

Huka CC

LESIIT. J.

JUDGE