High Court 3212 of 2013

REPUBLIC OF KENYA High Court at Mombasa Criminal Appeal 90 of 2011 (From Original Conviction and Sentence in Criminal Case No. 280 of 2010 of the Senior Resident Magistrate’s Court at Mariakani – D. M. Machage (SRM)) MKUZI TSAMA MKUZI ……………………………….…. APPELLANT - Versus REPUBLIC ………………………..………………….… RESPONDENT JUDGMENT The Appellant was sentenced to a fine of Kshs. 20,000/- in default 12 years imprisonment for the offence of Stealing contrary to Section 275 of the Penal Code. The particulars are that on the 1st day of December 2010 at Mwangutwa Primary School in Kaloleni – Kilifi County he stole one saw valued at Kshs. 11,000/- the property of M/s ST. SIMEON CHILD DEVELOPMENT CENTRE. The appeal rests on the issue of the sentence being harsh and excessive. The offence of theft contrary to Section 275 of the Penal Code carries a maximum of three years. Section 28(2) penal provides for a scale for default sentences. The Appellant was fined Kshs. 20,000/- the corresponding imprisonment term should have been six months imprisonment. The sentence of 12 years appears to have been an oversight. As it stands its clearly illegal. A perusal of the lower Court record shows that he was convicted in the year 2010. He has been in prison custody for more than 11/2 years. I deem that to be sufficient punishment. The sentence of imprisonment is revised to such term as he has already served. He is set at liberty unless otherwise lawfully held. Judgement read and delivered in open Court this 16th day of May, 2013. M. MUYA JUDGE

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