Case Metadata |
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| Case Number: | Criminal Appeal 60 of 1994 |
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| Parties: | Anna Jeptarus Kemboi v Republic |
| Date Delivered: | 30 Jun 1994 |
| Case Class: | Criminal |
| Court: | High Court at Eldoret |
| Case Action: | Judgment |
| Judge(s): | Roselyn Naliaka Nambuye |
| Citation: | Anna Jeptarus Kemboi v Republic [1994] eKLR |
| Court Division: | Criminal |
| County: | Uasin Gishu |
| Case Summary: | Kemboi v Republic High Court, at Eldoret June 30, 1994 Nambuye J Criminal Appeal No 60 of 1994 Criminal Practice and Procedure – sentencing – where accused presents mitigating factors on a charge of stealing by servant – that she was the sole bread winner of the family – whether non-custodial sentence should be imposed by the Court. The appellant was charged in Kapsabet Senior Resident Magistrate’s Court with 2 counts of stealing by agent, and stealing, contrary to sections 283(b) and 275 of the Penal Code respectively. She was convicted and sentenced to serve 15 months imprisonment in count 1 and 12 months imprisonment in count 2. The appellant’s case was that the learned Senior Resident Magistrate erred in law and in fact in convicting the appellant on insufficient evidence, in not considering mitigation circumstances and finally that this was a case which merited non custodial sentence. Held: 1. There were mitigating factors to the effect that the appellant did not benefit from the money she was now willing to refund. 2. This was a case fit for a non custodial sentence. Appeal allowed on sentence. Cases No cases referred to. Statutes 1. Penal Code (cap 63) sections 275, 283 2. Chang’aa Prohibition Act (cap 70) sections 3(1); 4(1) |
| Case Outcome: | Appeal on Sentence Allowed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO. 60 OF 1994
ANNA JEPTARUS KEMBOI............................................................APPELLANT
VERSUS
REPUBLIC......................................................................................RESPONDENT
JUDGMENT
The appellant was charged in Kapsabet Senior Resident Magistrate’s Court with two counts of stealing by agent c/s 283 (b) of the Penal Code in count 1, in count 2 with the offence of stealing contrary to section 275 of the Penal Code and in count 3 with the offence of being in possession of changaa c/s 3(1) as read with section 4(1) of the Chang’aa Prohibition Act cap 70 laws of Kenya. She was tried found guilty and convicted on count 1 and 2 but acquitted on count 3. She was sentenced to serve 15 months imprisonment on count 1 and 12 months imprisonment on count 2. Being aggrieved with the sentence she appealed to this Court citing 4 grounds of appeal namely that the learned District Magistrate erred in law and in fact in convicting the appellant on insufficient evidence as the respondent has failed to discharge the burden of proof, erred in law and in fact in sentencing the appellant to a too harsh custodial sentence not in consonant with the facts and circumstances of the case, erred in law and in fact in not considering the mitigating, circumstances of the appellant in sentencing the appellant, erred in law and in fact by allowing inadmissible evidence to be adduced and further convicted the appellant on the basis of inadmissible evidence.
The State was notified with the hearing date but did not turn up and the Court ordered that they be served afresh. This was done but there was no appearance for the State and the Court being satisfied that they were notified of the hearing date ordered the appellant’s counsel to proceed.
In his submissions to Court, counsel for appellant abandoned appeal against conviction and instead pleaded for leniency so that the appellant is given a non custodial sentence. She is a widow having lost a husband in March, 1994. That it is the husband who took the said money and she is willing to restitute the same which can be deducted from the cash bail deposited with the Court. I have evaluated the evidence on the record on my own and I find that the money was entrusted to appellant to buy sufurias and sugar. She bought some sufurias but not sugar and the rest of sufurias. It is evident that she did not hand over this money when demanded. She alleges the money was taken by her husband. This is a case which should have fitted a civil action but since the conviction is not being challenged, I will not interfere with it.
On sentence I find that the appellant entrusted the money to her husband who passed away. He is the one who refused to hand over the money.
There were mitigating factors to the effect that appellant did not benefit from this money she is now willing to refund the same. This was a case fit for a non custodial sentence. More so, when, appellant is now the sole bread winner of her family. There are no previous convictions. I have no doubt that appellant given a chance she can reform.
I will therefore confirm conviction on both count 1 and 2 but allow the appeal on sentence. Set aside the imprisonment terms imposed in respect of both count 1 and 2 and substitute there to a non custodial sentence subject to a favourable report forth coming from the probation officer on the appellant’s character.
Secondly also subject to appellant depositing the total dues into Court belonging to the said women group.
Dated and Delivered at Eldoret this 30th day of June 1994.
R.NAMBUYE
JUDGE
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