[2017] KEHC 6991 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CRIMINAL APPEAL NO 42 OF 2016

HUSSEIN IBRAHIM………………………….……………………………... APPELLANT

VERSUS

REPUBLIC………………………………………………………………… RESPONDENT

(From original conviction and sentence in Criminal Case Number 152 of 2016

in the Senior Resident Magistrate’s Court at Taveta delivered by Hon G. M. Kimanga

(RM) on 25th May 2016)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Hussein Hassan Ali, was convicted on his own plea of guilty by Hon G.M. Kimanga, Resident Magistrate for the offence of stealing stock contrary to Section 278 of the Penal Code Cap 63 (Laws of Kenya). He was sentenced to serve four and half (4 ½) years imprisonment.

2. The Prosecution withdrew the charges against Samwel Mwangesha, his Accused under the provisions of Section 87(a) of the Criminal Procedure Code Cap 75 (Laws of Kenya) on the ground that the evidence it had could not sustain the charge against him.

3. The particulars of the charge were as follows :-

“On the 7th day of May 2016 at around 0100 hours at Madarasaru Village within Taveta Sub-County jointly with others not before the court stole one(1) cow valued at Kshs 30,000/=, the property of DORAH MWACHOCHO KISHUKE.”

4. Being dissatisfied with the said judgment, on 17thNovember 2016, the Appellant filed a Notice of Motion application seeking leave to be allowed to file an Appeal out of time. The said application was allowed and the Petition of Appeal deemed to have been duly filed and served. The Mitigation Grounds of Appeal were against the sentence that was meted upon him. They were as follows:-

1. THAT he was the sole breadwinner of his family and currently hadtwo (2) children who depended on him.

2. THAT he pleaded guilty on his first appearance because he never understood the elements of crime and the charges before him(sic).

3. THAT he was a first offender and he had never committed anycrime.

4. THAT he was the only boy child in his extended family and hissiblings depended on him.

5. THAT in view of the circumstances of the case(sic)the custodial sentence if(sic)was harsh, severe and manifest(sic)excessive.

5. His Written Submissions were filed on 8th December 2016. Although he was given an opportunity to respond to the State’s Written Submissions that were dated and filed on 7th February 2017, he said he did not wish to do so but would rely on the submissions he had already filed.

6. When the matter came up on 7th February 2017, both the Appellant and counsel for the State asked this court to deliver its Judgment based on their respective Written Submissions. The Judgement herein is therefore based on the said Written Submissions.

LEGAL ANALYSIS

7. As the Appellant pleaded guilty to the charge, no value then would be added in analysing the evidence that was adduced during trial as this court is limited to looking at the extent and legality of the sentence that he was given only.

8. Indeed, Section 348 of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates as follows:-

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”

9. The question that this court was thus faced with was to consider and determine whether or not the Appellant had advanced good reasons to persuade it to set aside the aforesaid sentence which he argued was harsh in the circumstances of the case.

10. In his Written Submissions, he had contended that the sentence that was meted upon him was excessive and harsh compared to the sentence of twelve (12) months that was meted on the accused person in Criminal Case No 646 of 2015 Republic vs Johnson Mwangemi.

11. He submitted that he was persuaded to plead guilty by Dorah Mwachocho Kishuke(hereinafter referred to as “the Complainant”) who was also his step-mother as she had promised that she would pay for him the fine that would be imposed on him. He averred that he only realised later that it was her tactic to avoid the whole court process.

12. In its Written Submissions, the State argued that the facts were read to the Appellant in a language that he understood and having pleaded guilty to the same, he could not therefore lay blame on another person.

13. It pointed out although the maximum sentence prescribed under Section 278 of the Penal Code was fourteen (14) years and the sentence of four (4) years imprisonment that was meted upon the Appellant herein was well within the discretion of the Learned Trial Magistrate, the same was excessive considering that the Appellant was a first offender and the one (1) cow was recovered. It therefore submitted that it was amenable to the sentence being reduced to two (2) years as an offence the Appellant did actually commit an offence.

14. Section 278 of the Penal Code provides as follows:-

“If the thing stolen is any of the following things, that is to say, a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, wether, goat or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years.”

15. Before the Learned Trial Magistrate read out the sentence herein, the Appellant said the following in mitigation:-

“I am a family man and sole breadwinner of a young family. My wife and child are still(sic)entirely depended(sic)on me.”

16. The Learned Trial Magistrate then recorded the following:-

“Mitigation considered. The fact that the accused is 1st offender is also considered. The 1st accused is sentenced to 4 ½ years’ imprisonment. Right of Appeal 14 days.”

17. The import of the penalty is that a Trial Court cannot sentence a person convicted to the offence of stealing stock to imprisonment to not more than fourteen (14) years. The sentence of four and a half (4 ½) years was therefore proper and in accordance with the law.

18. However, this court found that the penalty that was meted upon the Appellant herein was harsh and excessive in the circumstances of the case herein. Appreciably, the value of the stolen cow was Kshs 30,000/= and it was recovered. In addition, the Appellant was a first offender and he had pleaded guilty at the first instance thus saving the Trial Court judicial time in hearing the case.He was also the Complainant’s step-son.

19. In the case of Katana Ali vs Republic [2016] eKLR, Muktar Shogolo vs Republic [2016] eKLRand Mohammed Hassan vs Republic [2016] eKLR,this court acceded to the Prosecution’s request to reduce the sentence from ten (10) years to five (5) years where the appellants therein had been charged with the offence of stealing two (2) cows worth Kshs 150,000/=, one of which was recovered.

20. In the case of Beshick Mombo Mwake vs Republic [2016] eKLR this very court considered that the appellant therein was a grandchild of the complainant and having noted he had once been put on probation, a non-custodial sentence was not appropriate but reduced the sentence from three (3) years to six (6) months imprisonment for having stolen three (3) pieces of timber worth Kshs 1,500/= belonging to his grandmother.

21. This court found that this would have been an appropriate case for the Learned Trial Magistrate to have considered a non-custodial sentence in line with Section 3 of the Community Service Orders Act No 10 of 1998 that provides as follows:-

Where any person is convicted of an offence punishable with-

a. Imprisonment for a term not exceeding three years, with or without a fine; or

b. Imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate,the court may, subject to this Act, make a community service order requiring the offender to perform community service.

22. This court therefore found favour in the Appellant’s and State’s submission that it ought to exercise its discretion in reducing the sentence herein, purely on the principle of proportionality.

DISPOSITION

23. In the premises foregoing, this court found the Appellant’s Petition of Appeal that was lodged on 17th November 2016 to have been merited and the same is hereby allowed only on the extent of the sentence.

24. For the foregoing reasons, this court hereby upholds the conviction against the Appellant herein but sets aside the sentence of four and a half (4 ½) years imprisonment that was meted on him by the Learned Trial Magistrate and replaces the same with a non-custodial sentence of three (3) months’ Probation.

25. However, as the Appellant has already served ten (10) months in prison where three (3) months’ Probation would have been appropriate, this court hereby directs that he be released forthwith unless he be held for any other lawful cause.

26. It is so ordered.

DATED and DELIVERED at VOI this 23rd day of March 2017

J. KAMAU

JUDGE

In the presence of:-

Hussein Ibrahim……….. Appellant

Miss Anyumba…………for State

Josephat Mavu………... Court Clerk