REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 14 OF 2017 ANDREW KERETI.........................APPELLANT VERSUS REPUBLIC..........................................REPUBLIC (From the original conviction and sentence in Criminal case No. 628 of 2017 of the Chief Magistrate’s Court at Busia by Hon W.Chepseba – Chief Magistrate) JUDGMENT ANDREW KERETI the appellant herein was convicted for the offence of burglary contrary to section 304(2) and stealing contrary to section 279 (b) of the Penal code. The particulars of the offence are that on the night of 14 th April 2017 at ESIKHULU Village of BUSIA County broke and entered into the dwelling house of BENARD NYONGESA WERE and stole from therein property valued at Kshs. 138 000/= the property of BENARD NYONGESA WERE. He pleaded guilty to the offence and was sentenced to serve 4 years imprisonment. The appellant was in person. He contended that the sentence was harsh and pleaded for its reduction. The facts of the prosecution case were briefly as follows: On the 14th April 2017 the complainant left his house and went to his parents’ home. When he returned, he found several of his items among them a mobile phone stolen. He reported to the police. The police traced the phone to the appellant. From his house an electrical iron box, 3 pairs of shoes and some clothes of the complainant were recovered. The appellant pleaded guilty to the offence and was sentenced to serve 4 years imprisonment after his conviction. He now contends that the sentence was harsh. The state through Mr. Owiti, learned counsel opposed the appeal. Section 279(b) of the Penal Code provides as follows: if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; the offender is liable to imprisonment for fourteen years.
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Whereas section 304(2) of the Penal Code provides as Follows: If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years. Only a handful of the stolen items were recovered. The sentence of 4 years cannot be said to be harsh. I accordingly dismiss the appeal. DELIVERED and SIGNED at BUSIA this 7th day of November, 2017 KIARIE WAWERU KIARIE JUDGE
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