[2022] KEHC 1539 (KLR)

REPUBLIC OF KENYA

IN THEHIGH COURT OF KENYA AT NAIROBI

HIGH COURT CRIMINAL CASE NO. 165 OF 2019

CHRISTOPHER WITHAKA WANYARE.......................................APPELLANT

VERSUS

REPUBLIC..................................................................................RESPONDENT

JUDGMENT

(Being an appeal from the decision of; Hon. A. R Kithinji, Senior Principal Magistrate (SPM), delivered on 8th February, 2019 vide Chief Magistrate Criminal Case number 134 of 2015 at Makadara).

1. The appellant was arraigned before the Chief Magistrate’s Court at Makadara on; 12th January, 2015, charged vide criminal case number; 134 of 2015, with the offence of; robbery with violence contrary to; section 295 as read with section 296 (2) of the Penal Code (cap 63) Laws of Kenya, and assault contrary to; section 251 of the said Code.

2. The particulars of the 1st count are that, on 8th January, 2015, at River road in Nairobi, within Nairobi County, jointly with other not before the court, while armed with dangerous weapons namely, sharp stones, robbed, Zachary Abuyia Nyapeni, Kshs 230, one bag containing; a laptop, make Samsung, worth Kshs 33,000, two game pads, worth Kshs 1,500, a black flash disk worth Kshs 1,500, and a mobile phone; Samsung worth Kshs 5,350, all valued at Kshs 40,030, the property of; Zachary Abuyia Nyapeni, and at the time of the robbery, used violence to Zachary Abuyia Nyapeni. The particulars of the 2nd count are that, on the same date, and place, jointly with other not before the court, assaulted Zachary Abuyia Nyapeni, occasioning him actual bodily harm.

3. The appellant pleaded not guilty to both charges and the case proceeded to full hearing. The prosecution case in a nutshell was that, PW1, Zacharia Abuyia Nyapeni (herein “the complainant”), was travelling from Kisumu to Nairobi on the material date. He alighted within the Kamukunji area. As he was heading to Central Bus Station to get a boda boda, he was accosted by three people. These people robbed him a bag containing a Samsung laptop, a charger, flash disk, samsang phone, T-shirt, 2 trousers and Kshs 230.

4. That, he struggled to retain the bag but was injured when he was hit by a stone thrown by the robbers and got overwhelmed. He released the bag and the robbers managed to escape with it, However, as one jumped over the fence and the other went towards Nairobi river, the 3rd robber ran towards police officers and he was arrested, since the complainant was shouting; “thief thief, unfortunately the stolen items went with those who were not arrested and were not recovered.

5. That, the complainant made a report at Kamukunji Police Station and went to seek treatment at his employer’s clinic at the University of Nairobi. That, as his hand was swollen he was referred to Kenyatta National Hospital for further treatment. In the meantime, the appellant who had been arrested was charged as herein stated.

6. At the close of the prosecution case, the appellant was placed on his defence. He told the court that, he works as a hawker and that, on 8th January, 2015, at about 10pm he was coming from work walking along River Road roundabout when he was arrested and framed with the offences herein. That he knows nothing about the offence.

7. At the close of the entire case, the court found that the prosecution had proved the case beyond reasonable doubt and found the appellant guilty as charged and convicted him. He was then sentenced to serve fifteen (15) years in jail.

8. The appellant is however aggrieved by the conviction and sentence and has appealed vide a petition of appeal dated; 20th March, 2019, on the grounds; -

a) That the learned trial Magistrate erred both in law and fact when he convicted him yet failed to find that the evidence of recent possession was insufficient. As such he was prejudiced;

b) That the learned trial Magistrate erred both in law and fact, when upholding conviction in reliance on inconsistence and contradictory evidence;

c) That the learned trial Magistrate erred both in law and fact, when upholding conviction when the evidence adduced in court remain unsatisfactory as crucial witnesses didn’t testify at the trial;

d) That the learned trial Magistrate erred both in law and fact, when upholding conviction, yet failed to resolve material contradictions in favour of the defence.

9. However, the appeal was opposed by the Respondent vide grounds of appeal dated; 24th November, 2021 in which the appellants aver that;

a) The appeal on sentence is an abuse of the court process as the same was very lenient;

b) The appeal on sentence lacks merit and ought to be dismissed;

c) The appellant is not yet remorseful, rehabilitative and has not cooperated to assist in the arrest of the co-accused.

10. The appeal was disposed of by the Respondent filing submissions, which I have considered. The appellant did not file any submissions but relied on the grounds of appeal and the supporting affidavit. Be that as it were, on 24th November, 2021, the appellant abandoned the appeal on conviction and opted to pursue the appeal on sentence.

11. In that regard, it suffices to note that, the appellant was convicted of the offence of robbery with violence contrary to; section 295 as read with section 296 (2) of the Penal Code. The subject provisions state that: -

295: Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

296: (2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

12. It is clear from the sentence provided for the offence is death, the appellant was sentenced to serve fifteen (15) years imprisonment. In sentencing the appellant, the learned trial Magistrate stated as follows:

“Report considered.

Accused sentenced to serve 15 years in jail R/A 14 days”

13. Apparently the learned trial Magistrate did not state specifically what exactly was considered from the report. It is also not clear whether any other factors were considered, for example, the fact that, the appellant was a first offender and the period he was in custody. As such, the period of 15 years meted looks “abstract”. However, it is a legal and/or a lawful sentence.

14. The purpose of sentence is to punish the offender to an extent and in a way that, is just in all the circumstances. It is meant inter alia; to deter the offender (specific deterrence) or other people (general deterrence) from committing offences of the same or a similar character.

15. However, the system of sentencing is not simply a method of imposing penalties or costs upon an offender to prevent harmful conduct, but rather the system is to impose sentences which "positively instills the basic set of values shared by all members of the public” see: R v CAM,1996 CanLII 230 (SCC), [1996] 1 SCR 500, perLamer CJ, atpara 81),Further the courts must bring the law, including sentencing, into harmony with the prevailing social values and so must reflect changes in these values, as held in: R v Stone,1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, citing CAM, supra. Thus, the sentencing process involves balancing "the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence" as held in; R v CAM,1996 CanLII 230 (SCC).

16. Sentencing is often referred to as "art" rather than science, as stated in: .R v Pilon,2014 ONCA 79 (CanLII), per Goudge JA, atpara 18, R v Arganda (J.R.),2011 MBCA 54 (CanLII), 268 Man R (2d) 194, per MacInnes JA, atpara 38.

17. In the case of; R v LM,2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J, atpara 17, it was observed that, the process of sentencing involves consideration of the following principles with each decision:

a) The objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done;

b) The fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; and

c) The principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances [i.e; parity principle], that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered.

18. The Sentencing Policy Guidelines of Judiciary, in Kenya states that the objectives of sentencing are: -

1. Retribution: To punish the offender for his/her criminal conduct in a just manner.

2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.

4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.

5. Community protection: To protect the community by incapacitating the offender.

6. Denunciation: To communicate the community’s condemnation of the criminal conduct.

19. It is always of great importance for the court sentencing the convict, to state clearly how all the aforesaid principles were considered or applied.

20. In the instant matter, I note from the pre- sentence report that, the appellant was aged 24 years when he was sentenced. He is described as a “street boy” who grew up without parental care and often abused drugs. He had been to rehabilitation before. In fact, the report paints him as a cunning person who even concealed his personal identity. That, he was not remorseful for the offence and is a high offender.

21. In my considered opinion, he required long term rehabilitation period to accord him an opportunity to reform as he was stated to be a first offender and was of tender age. If that was not tenable then, the court ought to have justified the contrary sentence. Be that as it were, I note that sentencing is the discretion of the trial court and the appellant court should not be too fast in interfering with it.

22. Further, to the aforesaid, I find that, the appellant was in custody during the trial from; 12th January, 2015 to 26th February 2019, when he was sentenced. That is a period of; four years and one month. That period should have been considered pursuant to the provisions of; section 333(2) of the Criminal Procedure Code (cap 75), Laws of Kenya.

23. The upshot of all this is that, I allow the appeal on sentence to the extent that, the period in custody be considered and the appellant sentence runs from the 12th January, 2015. The appeal on conviction is hereby marked as abandoned.

It is so ordered.

DATED DELIVERED VIRTUALLY AND SIGNED ON THIS 14TH DAY OF MARCH 2022.

GRACE L. NZIOKA

JUDGE

IN THE PRESENCE OF:

MS ODOUR FOR THE RESPONDENT

APPELLANT PRESENT AT NAIVASHA PRISON REMAND

EDWIN OMBUNA – COURT ASSISTANT