Simon Kibe Wanjiru v Republic [2018] KEHC 3469 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CRIMINAL APPEAL NO. 214 OF 2017

(Appeal Originating from Nyahururu CM’s Court Cr.No.1205 of 2017 by: Hon. O. Momanyi – S.R.M.)

SIMON KIBE WANJIRU..............APPELLANT

- V E R S U S –

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

J U D G M E N T

Simon Kibe Wanjiru was convicted for the offence of Breaking into a shop and stealing Contrary to Section 306 (a) and 279 (6) of the Penal Code.

The particulars of the charge are that on the night of 12/7/2017 at unknown time in Rurii Location, Olkalou Division in Nyandarua County,broke into an agro vet shop belonging to Jackson Njunge Ndungu and stole therein Kshs 250,000/=.

The appellant was arraigned before the court on 17/7/2017 and pleaded guilty to the charge.  He was convicted on his own plea and sentenced to serve 6 years imprisonment.

He filed this appeal on 6/12/2017 challenging both conviction and sentence.  However, when the appeal came up for hearing, he abandoned the appeal on conviction and proceeded with the appeal on sentence.

His ground of appeal are that he was a first offender, he pleaded  guilty and therefore did not waste the court’s time; that the sentence is too harsh and requests for a review downwards to be considered for non custodial sentence or an affordable fine; that he has learnt skills in prison which will enable himself reliant.

The appeal on sentence was opposed.  Learned counsel for the State Ms. Rugut argued that upon conviction, the offence for which the appellant was charged carries 7 years imprisonment, but he was only sentenced to 6 years imprisonment; that the court found the appellant to be un repentant  and preferred a determent sentence.

I have considered the appeal and the opposition thereto. No doubt the appellant pleaded guilty and did not waste the court’s time into going to  a full hearing.  He was treated as  a first offender.  Although the court seems not to have believed him, the appellant asked for forgiveness.  The appellant also claims  to have learnt skills while in prison and is remorseful.

Under the provision in which the appellant was charged, upon conviction, one is liable to 7 years imprisonment.  The appellant was given 6 years imprisonment which in my view was on the higher side considering the maximum sentence under the section to have been 7 years,  for the above reason, I find the sentence to have been excessive in the circumstances.

So far, the appellant has served one year imprisonment.  I hereby allow the appeal and sentence him to the year already served and will further place him on Community Service Order.  I hereby call for  Probation Officer to find out whether the appellant is suitable for Community Service Order.

Dated, SignedandDeliveredatNYAHURURUthis 25thday of July, 2018.

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R.V.P WENDOH

JUDGE

PRESENT:-

Ms. Rugut  -     Prosecution Counsel

Soi         -        Court Assistant

Appellant in person