The Appellant Vincent Omondi Dieto was convicted on his own plea of guilty for the offence of burglary contrary to Section 304 (2) of the Penal Code and stealing from a dwelling house contrary to Section 279 of the Penal Code and sentenced to serve 7 years and 10 years for each count respectively to run consecutively.
He was aggrieved by the conviction and he preferred the appeal herein vide petition of appeal in which he claimed the trial magistrate erred by not considering the provisions of Articles 50 (2) (g) and (h) of the Constitution. He also claimed that the sentence was harsh and excessive in the circumstances.
This appeal was canvassed by way of submissions.
In the Appellants submissions he said he was a 1st offender and that the sentence was harsh and excessive as the complainant was one and his sentences should have been ordered to run concurrently as per the Judiciary Sentencing Policy Guidelines.
The Appellant begged the court to order that his sentence runs concurrently.
The Respondents in their submissions dated 18.11.2024 urged the court to dismiss the appeal as it lacks merit because the sentence given by the trial court was appropriate given the nature of the crime as well as the circumstances under which the crime was committed.
This court has considered the grounds of appeal and the record of the trial court as well as submissions by the Appellant and the Respondent and find that the Appellant having pleaded guilty and not subjected the court and prosecution to a protracted trial ought to have benefited from a more lenient sentence. The sentence may be lawful but consideration should have been had to the value of the subject goods stolen and which were recovered. As the Appellant committed the offences in a single transaction should not be ordered to serve the sentence consecutively.
This court therefore allows the appeal and substitutes the sentence to 2 years jail term from 22.3.2024 when he was arraigned in court. The remainder of the jail term as at 20.1.2025 to be served on probation supervision.
The remainder as at 20.1.25 to be calculated by Prison Authorities and communicated to the Probation and After Care for processing.
Delivered dated and signed at Migori this 19th day of December, 2024.