REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL NO 2 OF 2018
STEPHEN MARWA MWACHUMA..…………….…..….………APPELLANT
VERSUS
REPUBLIC..……………………………………..….………….RESPONDENT
(Appeal from original Sentence dated 05/01/2018 in Nanyuki CM Criminal Case No 1982 of 2017 – L Mutai, CM)
J U D G M E N T
1. The Appellant herein, STEPHEN MARWA MWACHUMA (2nd accused in trial court) was convicted upon his own plea of breaking into a building and stealing therein contrary to section 306(a) of the Penal Code. On 05/01/2018 he was sentenced to five (5) years imprisonment. He has appealed only against that sentence.
2. The Appellant’s three co-accused similarly pleaded guilty to the same offence and were duly convicted. They were also each sentenced to five years imprisonment. We have checked our criminal registry records; it appears that they never appealed.
3. The Appellant has pointed out that he was a first offender who pleaded guilty. He says he is now 29 years old, having been born in 1991. That means that when he was convicted and sentenced he was about 26 years old. He therefore contends that in his particular circumstances the sentence meted out to him was manifestly harsh and excessive.
4. Learned prosecution counsel on the other hand supports the sentence. He pointed out that the Appellant and his co-accused stole assorted articles of clothing and shoes valued at KShs 1.5 million, and that hardly anything at all was recovered. Learned counsel also pointed out that the offence carried a maximum of seven (7) years imprisonment.
5. In sentencing the Appellant, the trial court indeed considered that he was a first offender. But the court appeared not to give him any credit for the fact that he had pleaded guilty and thus saved the court and the prosecution the time and trouble of a full trial. The court also never commented about the Appellant’s apparent youthfulness. The court appeared driven only by the value of the goods stolen and the fact that they were not recovered.
6. The particular circumstances of this Appellant called for more consideration when sentencing him. A youthful first offender who pleaded guilty ended up getting a long prison term that was manifestly harsh and excessive in the circumstances of the case. This court is therefore entitled to intervene.
7. The Appellant has now served about 2 years and 11 months of his sentence. I consider that to be sufficient punishment for his crime.
8. I will therefore partially allow this appeal against sentence by setting aside the five (5) years imprisonment imposed, and by substituting therefor the time already served. That means that the Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 1ST DAY OF DECEMBER 2020
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 3RD DAY OF DECEMBER 2020