REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL APPEAL CASE NO. 12 OF 2017

DANCAN LEMISHEN..............................................1^ST APPELLANT

OLE NAPOYE KIPINDOI......................................2^ND APPELLANT

VERSUS

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

JUDGMENT

1. On the 8^th March 2018, Kisii HCRA Nos. 11 & 12 were consolidated. HCCRA No.11 relates to the 2^nd appellant Ole Napoye Kipindoi and the HCCRA 12 relates to the 1^st appellant Duncan Lemishen. On the 26^th July 2016 the 1^st and 2^nd appellant were charged before the Principal Magistrate’s Court at Kilgoris with the offence of “Stealing Stock contrary to section 278 of the Penal Code. The particulars of the offence are that, “On the 22^nd of July 2016 at Ndenge village in Transmara west District of Narok County, jointly with another not before the court stole four heads of cattle valued at Kshs.180, 000/- the property of Jamlick Kisaika. Each pleaded guilty to the charge and after the facts were read to them and they admitted the facts as read, they were each convicted on their own plea of guilty and sentenced to 7 years imprisonment.

2. In their petition of appeal the appellants are not challenging the conviction. Their appeal in on sentence. They claim that the sentence meted on them was excessive. At the hearing of the appeal the 1^st appellant asked to have the sentence reduced stating that he is 32 years old and was imprisoned in 2016 for a period of 7 years. The 2^nd appellant too requested to have the sentence of 7 years reduced claiming he is 62 years and that he had a family. He promised not to repeat the offence. The prosecution submitted that the appellants pleaded guilty. The plea was clear and unequivocal. That Section 348 of the Criminal Procedure Code stipulates that no appeal lies. That they are not challenging the conviction. The maximum sentence is 14 years imprisonment. That this is a court of equity and the court can using its discretion mete out equitable justice. That the 7 years is sufficient and not excessive as the animals were 4 cows valued at Kshs. 180,000/-  

3. This issue in this appeal is only against the sentence. The conviction stands as it was proper. The principles of sentencing are well settled. On appeal the appellate court can only interfere with a sentence pronounced against an appellant if it is shown that the sentencing court overlooked some material factors or took into account some immaterial fact or acted on a wrong principle or that the sentence is manifestly excessive in the circumstances of the case. The record of appeal shows that the appellants are first offenders. The Resident Magistrate considered the appellants mitigation. They sought forgiveness and leniency. The record also shows that the 4 cows which were stolen were recovered after the appellant’s led the police to location of the animals. The trial court noted that the offence of theft of stock in Transmara is prevalent. I note that the appellants upon their arrest led to the recovery of all the animals, the 1^st appellant is 32 years old and the 2^nd appellant is 62 years. The maximum sentence is 14 years. I also note that they are first offenders and that they did not waste the courts time. Considering all the above I reduce the sentence from 7 years to 5 years for each appellant. The conviction stands as it’s proper.

 Dated signed and delivered this 4^th day of October 2018

R. E. OUGO

JUDGE

In the presence of;

1^st& 2^nd Appellants in person

Mr Orinda   For the State

Rael Court / Clerk