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High CourtAllowedCriminal Case No. 530 of 2018 (application dated 16th December 2019)

In re Criminal Case No. 530 of 2018 - Application for Alternative Dispute Resolution / Reconciliation (Applicant unnamed in judgment)

High Court of Kenya

29 January 2020

FMF. Muchemi

988 words in judgment

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The bottom line

Courts can reduce harsh sentences even if formal reconciliation rules don't apply, provided the trial court ignored key mitigating factors.

What this practically means

Executive summary

This is a High Court (Embu) revisionary ruling by F. Muchemi J on an application dated 16th December 2019 in which the applicant, convicted and sentenced to four years' imprisonment for stealing stock contrary to Section 278 of the Penal Code in Criminal Case No. 530 of 2018, sought that alternative dispute resolution be employed because the complainant, his mother, was willing to forgive him. His earlier appeal, Criminal Appeal No. 12 of 2019, was abandoned after bail pending appeal was denied. The respondent, through Ms. Lokorio, did not oppose the application, arguing the trial court failed to consider that the accused was the complainant's son, did not call for a probation report, and that the sentence was harsh. The court examined its revisionary powers under Sections 362-366 of the Criminal Procedure Code, the Sentencing Policy Guidelines on aggravating and mitigating factors, Article 159(2)(c) of the Constitution on ADR, and Section 176 of the Criminal Procedure Code on reconciliation. It held Section 176 applies only to minor offences of a personal or private nature not amounting to felony and not to the stock theft charge. Although it found the four-year sentence lenient, it held the trial court ought to have considered the complainant's willingness to reconcile and her relationship to the applicant. The court allowed the application, set aside the four-year sentence, and referred the applicant for a probation report to be filed within seven days, with a non-custodial sentence subject to suitability.

Key legal issues

Applicability of Section 176 CPC (reconciliation) to the offence of stealing stock

Holding

Section 176 does not apply to the offence because it is not a minor offence of a personal or private nature; the court nonetheless noted the magistrate failed to consider its applicability.

Reasoning

The court examined Section 176, which permits reconciliation only for common assault or offences of a personal or private nature not amounting to felony and not aggravated in degree. Stock theft under Section 278 of the Penal Code carries a maximum of fourteen years' imprisonment, so the reconciliation provisions were held inapplicable to the charge.

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Whether the four-year sentence should stand

Holding

The sentence was set aside and a non-custodial sentence substituted, subject to a probation report on suitability.

Reasoning

Although the court found the four-year sentence lenient, it held the trial court failed to consider relevant sentencing factors, including the complainant's forgiveness of her son and the respondent's non-opposition. Balancing these factors, the court concluded a non-custodial sentence was appropriate, subject to a probation report.

p. 2

Legal principles established

Section 176 of the Criminal Procedure Code permitting reconciliation applies only to minor offences of a personal or private nature not amounting to felony, and not to felonies.
A sentencing court is obliged to take into consideration all relevant facts and circumstances, including the victim's willingness to reconcile and the relationship between victim and offender.

Court orders

1.The sentence of four (4) years imprisonment by the trial court is set aside
2.The applicant is referred for a probation report to be filed within seven (7) days

On appeal from: Subordinate court (trial court, Criminal Case No. 530 of 2018); Criminal Case No. 530 of 2018
Jurisdiction invoked: Sections 362-366 of the Criminal Procedure Code (Cap. 75) - High Court supervisory/revisionary powers

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Criminal Case No. 530 of 2018 - Application for Alternative Dispute Resolution / Reconciliation (Applicant unnamed in judgment)", Case Analysis (2020). Criminal Case No. 530 of 2018 (application dated 16th December 2019). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.