SENTENCE
1. The appellant PIUS PASKALE FURUGENSI’s conviction for stealing contrary to section 268(1) as read with section 275 of the Penal Code was upheld by this court vide the judgment delivered on 24/7/2024.
2. The appellant was sentenced to 3 years imprisonment which sentence he challenged for being harsh in the circumstances of the offence.
3. Alive to the fact that: I stated:
There are numerous authorities to the effect that the sentence imposed should be proportional to the crime. In Thomas Mwambu Wenyi –vs Republic (2017) e KLR the Court of Appeal stated as follows:
“A sentence imposed on an accused person must be commensurate with the blame worthiness of the offender and that the court should look at the facts and circumstances of the case in its entirety before settling for any given sentence”.
It is trite that sentencing is an exercise of direction. In Shadrack Kipkoech Kogo –vs- R Eldoret Criminal Appeal No. 253 of 2003 the Court of Appeal stated thus:-
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R (1989 KLR 306)”
The appellant was a first offender. The stolen items were recovered and returned to the owner. The maximum sentence for a first offender where the stolen items were recovered appears harsh only when considered in isolation from the first count.
4. Upon forming the view that there was good ground to interfere with the sentence, I directed that the PACs avail a pre sentence report on the appellant..
5. A social inquiry report was provided by Probation After Care Services through collaboration between the Probation After Care Services Mombasa where the appellant hails from, and Makueni the jurisdiction within which the offence was committed.
6. It was established that;
The appellant is 52 years old. The appellant joined Bomu Primary School in standard five due to financial constraint. Prior his arrest, he was doing casual jobs majorly selling second hand clothes. The appellant has been married to RP for the last 27 years and they are blessed with four children, one of the children is deceased. The appellant appeared to be physically and mentally healthy. He is a Christian affiliated to Changamwe Catholic church.
The appellant has been described as hardworking, responsible and breadwinner to his family. The appellant’s family members described the appellant as hardworking and responsible man who has been supporting his family members, he was the breadwinner to his family
7. Probation After Care Services recommended:
That the appellant is suitable for non-custodial sentence and he may be placed on Probation Orders for a period the honourable court deems fit, our office contacted the Probation After Care Services – County Director of Mombasa who will supervise him. This recommendation is subject to the discretion of the honourable court.
8. The report also indicated the interventions that would be availed to the offender during the Probation period, if granted:
The appellant will undergo guidance and counseling on how to stay away from criminal activities he will also be taken through apprenticeship as a way of generating income as well as being linked with employment to sustain his family. The family is willing and ready to support him. The office will work closely with the local administration for close supervision and monitoring during the supervision period.
9. Taking into consideration the requirements for probation order and the Probation of Offenders Act Cap 64 laws of Kenya, I am persuaded by the foregoing I find hat the appellant is suitable for a non-custodial sentence.
10. In the circumstances, the appellant is placed on probation supervision for 15 months
11. The appellant will be under the supervision of the PACs Mombasa County,
12. The PACs Mombasa will ensure the involvement of the local administration who have committed to support his rehabilitation journey.
13. The consequences of breach of this order will be to have it set aside and appropriate custodial orders made.
14. Orders accordingly.
Dated, Signed and Delivered, this 8th day of October 2024
Mumbua T Matheka
Judge