A man who broke into his uncle's building and stole household items has been sentenced to two years in custody by a Senior Principal Magistrate's Court at Malaba.
Sammy Nyambeka pleaded guilty on June 2 to the charge of breaking into a building and committing a felony contrary to section 304(1)(b) of the Penal Code.
Resident Magistrate Antoinette Ogange delivered the decision after a pre-sentence report revealed he was unwilling to reconcile despite having told the court otherwise.
In mitigation, he pleaded for leniency, stating that the complainant is his uncle and that there is an existing disagreement between them concerning inheritance.
He expressed willingness to reconcile with the complainant.
The prosecution informed the court that the accused had previous court records, but the court established that the matter referred to, Criminal Case No E593 of 2025, was withdrawn under Section 87(A) of the Criminal Procedure Code after the accused had absconded and his cash bail was forfeited.
The Magistrate noted that the matter did not result in a conviction and that it would be improper to treat it as a previous conviction for purposes of aggravating sentence.
However, Magistrate Ogange said it may take note of the accused's previous failure to attend court as relevant conduct when considering his suitability for a non-custodial sentence.
She considered the pre-sentence report and found a significant variance between the accused's position before the court, where he expressed willingness to reconcile and the information contained in the report indicating that he was not willing to reconcile.
The Magistrate therefore found that the prospect of immediate reconciliation and successful rehabilitation within the community was not sufficiently demonstrated.
She summoned the complainant following the report to shed further light on the circumstances, but the complainant failed to attend court.
The report further indicated that the accused's conduct is attributed to consumption of illicit brew and recorded several complaints concerning the accused as reported by the area chief.
While such complaints cannot be treated as previous convictions, the court said they are relevant to the assessment of the accused's suitability for a non-custodial sentence, particularly when considered together with the other circumstances disclosed in the report.
The offence itself is serious, the court said.
The accused unlawfully broke into a building and stole items which were recovered from third parties with whom the accused had negotiated and received part payment.
The said items include four sufurias, two bicycles and half a sack of charcoal.
The court observed that the fact that the complainant is the accused's uncle and that there is an inheritance dispute does not excuse the criminal conduct. Disputes concerning property or inheritance must be resolved through lawful means and cannot justify breaking into a building and stealing.
The court weighed the mitigating factors, including the early plea of guilty and recovery of the stolen items against the aggravating circumstances, including the attempt to sell stolen items and receipt of part payment, the pre-sentence report and found that the circumstances cumulatively render a non-custodial sentence unsuitable.
Having considered that the matter involves property offences without violence being alleged and the mitigation of the accused person, the court found that a two-year custodial sentence is just in the circumstances. The sentence shall run from June 2, when the accused person was remanded in custody. The accused has 14 days right of appeal.
