Touwa Olelei v Republic [2022] KEHC 1312 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCRA NO. E013 OF 2021

TOUWA OLELEI..........................................................APPELLANT

-VERSUS-

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

(Being an appeal from the original conviction and sentence of Hon. C. A Mayamba in Kilungu Principal Magistrate’s Court Criminal  Case No.735 of 2019 pronounced on 30th  October, 2019).

JUDGMENT

1. The appellant herein having been convicted of two counts stealing stock contrary to section 278 of the  Penal Code (cap.75), and sentenced to serve concurrent sentences of  6 years imprisonment in count 1 and 7 years imprisonment in count 2, has now come to this court appealing against sentence only.

2. In his submissions, he stated that the total sentence of 7 years imprisonment imposed on him is harsh and excessive as he has a family with five school going children and is a first offender. He has asked for a non-custodial sentence.

3. The learned Assistant Director of Public Prosecution Mr. Tanui left to the court to consider the appropriate sentence.

4. I note that the appellant was charged jointly with four (4) others in count 1 in respect of theft of a bull valued at Kshs.80,000/=. He was also charged alone with a second count of stealing four heifers valued at Kshs.120,000/=.

5. He was the only one who pleaded guilty to both charges, and was convicted on his own plea. Before sentencing, he was recorded as being a first offender, but elected to say nothing in mitigation. He has however come to this court and raised his mitigation.

6. In my view, being a layman, the appellant might not have been appreciated of the gravity of the offences. He sold the cows to someone, but it is not clear if the cows were returned to the owner.

7. Having considered the mitigation which the appellant has raised on appeal, and being a layman, I am persuaded to review the sentence, and reduce it to four (4) years imprisonment on each of the two charges. I don’t consider that the appellant deserves a non-custodial sentence.

8. For the above reasons, I set aside the sentence imposed and order that the appellant will instead serve four (4) years imprisonment on each of the two counts concurrently, making a total of four (4) years imprisonment from the date that he was sentenced by the trial court.

DELIVERED, SIGNED & DATED THIS 23RD DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

...............................

GEORGE DULU

JUDGE