[2017] KEHC 3344 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 92 OF 2015

EVANS KARIUKI AGNESS………...………APPELLANT

VERSUS

REPUBLIC……………..…........................RESPONDENT

JUDGMENT

The Appeal herein arises from the Judgment of V.O Nyakundi RM delivered on the 18th day of November, 2015 wherein the learned Magistrate convicted the Appellant and sentenced him to serve 10 years in prison.

The Appellant was charged with the offence of stealing stock Contrary to Section 278 of the Penal Code, the particulars being that; on the 18th day of July, 2015 at Kingiri village, Kithima location within Embu County, stole one goat black in colour valued at ksh. 2,500 the property of Agnes Katavi.

Being aggrieved by the conviction and the sentence, he has appealed to this court and has listed his grounds of Appeal which are that; the learned Magistrate failed to consider his mitigation and gave him a harsh sentence, he prays for a non- custodial sentence and that his defence was not considered.

In his submissions, the Appellant prayed for a review of the sentence contending that the same was harsh and excessive. He urged the court to consider that he was a first offender and that he has reformed during the period in prison.

The Respondent submitted that the sentence meted on the Appellant is reasonable and within the Law. That during his defence he admitted that the trouser which PW1 had bought for him was found at the scene where the remains of the goat were found. It was further submitted that the Appellant did confirm that the goat was tethered near where he was sleeping outside the house as he had demolished his house. That in cross examination, he asked his mother to forgive him.

The summary of the evidence adduced by the prosecution witnesses is that on the 18/7/2015, PW1 who is the Appellant’s mother left for work at around 8 am after she had tethered her four goats outside the house near where the Appellant used to sleep as he had no house having demolished his house and sold the iron sheets.

When she came back in the evening, she found one goat missing and as she was searching it in the company of his other son PW2, they came across the skin at the scene where the goat was slaughtered and besides it, was the Appellant’s trouser which PW1 had bought for him. At the scene, was blood and some internal organs of the goat and they were fresh. She reported the matter to the police and the Appellant was arrested on the 25/7/2015.

PW3 was the arresting officer who arrested the Appellant and took him to the police post.

PW4 was the investigating officer. When he started investigations police officers from Kaimuthathu had already recorded the statements. He perused the statements and interrogated the complainant to confirm whether what she wrote in her statement was correct. He produced the goat skin and the trouser as exhibits in the case. He preferred the charge against the Appellant.

In his defence, the Appellant denied having committed the offence. He told the court that as for his trouser which was at the scene, he had left it there earlier and that nobody saw him stealing the goat and eating the meat. He asked for forgiveness from his mother (PW1).

The court has considered the evidence on record, the grounds of Appeal and the submissions by the respective parties.

On the first ground of Appeal, the Appellant contended that the learned Magistrate failed to consider his mitigation. The court has perused through the record and in mitigation, the Appellant stated that he had nothing to say. In the circumstances, there was nothing for the learned Magistrate to consider.

The other ground worth considering, is ground 6 of the Appeal. The Appellant stated that his defence was not considered. In his defence, he denied having committed the offence. In his Judgment, the learned Magistrate considered the Appellant’s defence at great length and he explained why he did not belief the Appellant.

I find the learned Magistrate’s reasons for rejecting the defence very well founded.

The court has also noted that while cross-examining the complainant, the Appellant asked for forgiveness and promised to be of good behavior in future. In view of that piece of evidence and the evidence adduced by the prosecution witnesses, the Appellant’s defence could not stand.

The Appellant has also argued that the sentence is excessive. Section 278 of the Penal Code under which he was charged provides for a maximum of 14 years upon conviction. The Appellant herein was sentenced to serve 10 years imprisonment.

Though there was no Mitigation and no indication as to whether the Appellant was a first offender it is my considered opinion that the sentence meted out on the Appellant is excessive. The court hereby reduces the sentence to 5 years imprisonment. The court has also taken note of the fact that in his submissions, the Appellant has stated that he has reformed.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

………………

L. NJUGUNA

JUDGE

In the Presence of

……………for the Appellant

……………for the Respondent