[2017] KEHC 6636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEALNO.13 OF 2015

FRANCIS OPONDO………………………………………………APPELLANT

VERSUS

REPUBLIC OF KENYA…………………………………………..RESPONDENT

(Appeal from thejudgement delivered on 20th March, 2015 by Hon. J. N. Maragia, Resident Magistrate in Busia CM Criminal Case NO. 903 of 2014)

JUDGEMENT

1. When this appeal came up for hearing on 21st February, 2017 the Appellant, Francis Opondo told the Court that he had abandoned his appeal on conviction and was only pursuing an appeal against sentence. This position is in tandem with the supplementary grounds of appeal filed on 29th December, 2016 by the Appellant. Through those grounds the Appellant asked for a reduction of his sentence of three years imprisonment imposed on him on 20th March, 2015. He stated that he is the sole breadwinner for his family. Further, that he has learned his lessons and he is now a law abiding citizen.

2. In response Mr. Owiti for the State indicated that the State was conceding the appeal. He submitted that at the time the Appellant was convicted the remission of sentence that used to be available had been removed from the statute books. His position is that remission of sentence had been reinstated and it is only fair that the Court takes this into account in reducing the Appellant’s prison sentence. Mr. Owiti talked of the Power of Mercy Act reintroducing remission.

3. Mr. Owiti in referring to remission of sentence under the Power of Mercy Act, 2011 conflates the constitutional power of pardon reposed on the President and exercisable upon the advice of the Advisory Committee on the Power of Mercy and the power to remit sentence reposed on the Commissioner of Prisons by the Prisons Act, Cap. 90.

4. The power to remit sentence as provided by Section 46 of the Prisons Act, Cap 90 is as follows:

“(1) Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one-third of their sentence or sentences.

Provided that in no case shall -

(i)any remission granted result in the release of a prisoner until he has served one calendar month;

(ii) anyremission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained during the President's pleasure.

(2) For the purpose of giving effect to the provisions of subsection (1), each prisoner on admission shall be credited with the full amount for remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.

(3) A prisoner may lose remission as a result of its forfeiture for an offence against prison discipline, and shall not earn any remission in respect of any period-

(a)spent in hospital through his own fault; or

(b)while undergoing confinement as a punishment in a separate cell.

(4) A prisoner may be deprived of remission -

(a)where the Commissioner considers that it is in the interests of the reformation and rehabilitation of the prisoner;

(b)where the Cabinet Secretary for the time being responsible for Internal security considers that it is in the interests of publicsecurity or public order.

(5) Notwithstanding the provisions of subsection (1) of this section, the

Commissioner may grant a further remission on the grounds of exceptional merit, permanent ill-health or other special ground.[Act No. 25 of 2015, Sch.].”

5. I did not understand why Mr. Owiti was of the view that the remission of sentence was not available to the Appellant simply because he was imprisoned at a time when remission of sentence had temporarily been removed from the Prisons Act. Section 46 is clear that remission of sentence is available to convicted criminal prisoners. The Appellant was a convicted criminal prisoner when remission of sentence was reintroduced and he is entitled to benefit from remission, if he meets the conditions for remission of sentence. The only persons who could not receive remission of sentence were those sentenced and had completed their prison terms during the time that remission of sentence was removed from the law. Otherwise all convicted criminal prisoners whether convicted during the existence of the initial right to remission of sentence, during the period that remission had been removed or after remission had been reintroduced in 2015 are all entitled to remission of sentence as provided by Section 46 of the Prisons Act. This is on condition that they meet the provisions of the said Section.

6. I support my position using Article 50(2)(p) of the Constitution which states that:

“(2) Every accused person has the right to a fair trial, which includes the right-

(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”

7. In the case of a convicted criminal prisoner, the least severe sentence is the one to which remission has been applied. It is immaterial that they were convicted during the period that remission had been removed from our statute books.

8. I am however not convinced by Mr. Owiti’s assertion that if indeed remission of sentence was not available to the Appellant then this Court should take that fact into account and allow the State’s concession to the appeal. The power of remission lies with the prisons authorities and this Court should not usurp such power. If the State was correct that the Appellant is not entitled to remission, then that is not a good reason for conceding the appeal since the three years imprisonment imposed on the Appellant would still be lawful.

9. The Appellant was sentenced to serve three years imprisonment on 20th March, 2015 after being convicted for the offence of stealing stock contrary to Section 278 of the Penal Code. A person convicted under the said Section is liable to imprisonment for a period not exceeding fourteen years.

10. In passing sentence, J. N. Maragia, Resident Magistrate commented that she had considered the mitigation by the Appellant and the fact that he was remorseful. She however noted that the offence was serious and prevalent in the region and a deterrent sentenced was therefore called for.

11. In considering whether to interfere with the sentence imposed by the trial Court, an appellate court is governed by the parameters laid down by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR. In that case the Court stated that:

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

Sympathy is not among the reasons that will make an appellate court reduce a sentence.

12. As to what the principles of sentencing are, I stated in Dalmas Omboko Ongaro v Republic [2016] eKLR that:

“10. The principles of sentencing were summarized at page 86 paragraph B of the Judiciary Bench Book for Magistrates in Criminal Proceedings (published by the Kenyan Judiciary in 2004) as follows:

“In determining what is the appropriate sentence to mete out, the Court has to consider such factors as the nature of the offence, the attitude of the accused person, prevalence of the type of offence, the seriousness of the offence, the circumstances under which the offence was committed, the effect of the sentence on the accused person, the fact that the maximum sentence is intended for the worst offenders of the class for which the punishment is provided, etc. (Makanga v R. Criminal AppealNo. 972 of 1983 (unreported)). The Court may also consider the value of the subject matter of the charge (Mathai v R[1983] KLR 442) and whether there has been restitution of the property by the accused (Hezekiah Mwaura Kibe v R[1976] KLR 118).”

The antecedents of an accused person also come into play when the Court is considering the appropriate sentence. If an accused person is a first offender the sentence ought to reflect this fact as the aim of the Court is to encourage reform and discourage recidivism.”

13. The Appellant herein had no previous records as communicated to the trial Court by the prosecutor. He ought to have been treated as a first offender. He had been in remand for close to eleven months and the Court ought to have taken this period into account. The record does not show that the Court considered this fact when imposing the prison sentence.

14. The Appellant has served two years imprisonment. Taking all the mentioned facts into account, it is clear that the Appellant has already served close to three years. That is sufficient punishment.

15. His appeal on sentence succeeds to the extent that the sentence is reduced to the period already served. He is therefore set free forthwith unless otherwise lawfully held.

Dated, signed and delivered at Busia this 30th day of March, 2017

W.KORIR,

JUDGE OF THE HIGH COURT