Shadrack Kateiya v Republic [2019] KEHC 6172 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCRA NO. 29 OF 2018

SHADRACK KATEIYA.................................................APPELLANT

=VERSUS=

REPUBLIC...................................................................RESPONDENT

[An appeal from the original conviction and sentence of the Principal Magistrate’s Court at Kabarnet Criminal Case no. 893 of 2016 delivered on the 14th day of June 2018 by Hon. S.O. Temu, PM]

JUDGMENT

1. Appellant was on 19/6/2018 convicted and sentenced to imprisonment for 3 years for the offence of  Burglary contrary to section 304 (1) (2) of the Penal Code. The appellant has served one (1) year two weeks of the three year sentence, which is more than half the sentence, with remission.

2. DPP did not oppose the appeal considering the time already served and the Counsel suggested that the appellant may serve the remaining term on non-custodial sentence.

3. The Presentence Probation Officer’s Report was, however, negative for non-custodial sentence. The Probation Officer’s Report recommendation was that:

“Given the negative sentiments from the local administration and the immediate neighbours coupled with the fact that the appellant is very economical with the truth and gives conflicting information about his siblings and his actual place of abode, his rehabilitation within the community would be difficult.”

4. The appellant’s own submission appear to confirm to Probation Officer’s Report and Recommendation, very ironically, when he said:

“3. The crime emanated due to lack of parental care my lord when I was still in primary school I used to spend nights in the neighbouring house because my parents could not provide for meand they were not responsible. This led me to join some bad companies which led to my conviction and I promise to shun completely now that I know my mistakes.”

Review of sentence by trial Court

5. Taking into account the nature of the items stolen in the burglary offence being “safaricom scratch card (airtime) worth Ksh.20,000/=, mobile phone make Infinix Hot 3 worth Ksh.13,000/=, a bag worth Ksh.1500/=, a radio valued at Ksh.1000/= and 10 kg of maize valued at 600/=”, and noting that the appellant was not a first offender, I do not find that the sentence of imprisonment for 3 years was in any way  excessive.

6. I would only consider non-custodial sentence pursuant to section 3 of the Community Service Orders Act because the sentence falls within the bracket of imprisonment terms of 3 years and under governed by the Act.

Orders

7. However, in view of the negative recommendation by the Probation Officer for non-custodial sentence, I would find that the appellant is not deserving of an order under the Community Service Order Act or other non-custodial treatment.

8. Accordingly, for the reasons set out above, I find no merit in the appellant’s appeal and the same is dismissed.

Order accordingly.

DATED AND DELIVERED THIS 1ST DAY OF JULY 2019

EDWARD M. MURIITHI

JUDGE

Appearances:

Appellant in person.

Ms. Macharia, Ass. DPP for the Respondent.