REPUBLIC vs ISAAC BOGENI MACHENGE [2004] KEHC 2586 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII.CRIMINAL APPEAL NO.3 OF 2004(From original conviction and sentence of the Chief Magistrate’s Court at Kisii in Criminal Case No.3093 of 2003 –S. M. S. SOITA ESQ., P.M)

REPUBLIC …………………………………………………………….. APPELLANT

VERSUSISAAC BOGENI MACHENGE …………………………………… RESPONDENT

JUDGMENT

Appellant Isaac Bogani Machenge was charged with two others for the offence of Kitchen breaking and committing a felony c/s 306(a) Penal Code. The three pleaded guilty and wee convicted. Appellant was jailed for 5 years and his two accomplices jailed for 2 years which term was suspended for 6 months. Appellant now appeals against the sentence.

The appellant was on probation for 2 years for a similar offence when he committed the current one. This is what prompted the learned magistrate to hand him a term of five years. However even though he was not a first offender sentence of five years was harsh. He pleaded with the court for forgiveness. He readily admitted he was on probation. The value of the stolen items was shs.2,900/=. Though a custodial sentence was called for five years was on the higher side.

I therefore set aside the sentence of five years imprisonment and substitute it with one for 12 months imprisonment. It is so ordered. KABURU BAUNI JUDGE. 8/7/04 Signed, dated and delivered on 8th July 2004. KABURU BAUNI JUDGE.