[2016] KEHC 829 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

CRIMINAL APPEAL NO. 55 OF 2015

JERIOTH NJERI THEURI …………….........……………….… 1st APPELLANT

LUCY WAGECI MWANGI ……………..........………….…..….. 2nd APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in Nanyuki Chief Magistrate’s Court Criminal Case No. 1101 of 2014 by Hon. T.W.CHERERE Chief Magistrate on 9th April 2015)

JUDGMENT

1. JERIOTH NJERI THEURI1st AppellantLUCY WAGECI2nd Appellant were convicted on four counts. On the first count both appellants were charged with offence of obtaining money by false pretences Contrary to Section 313 of the Penal Code Cap 63. On the second count only the 1st appellant was charged with the offence of personation Contrary to Section 382 (1) of Cap 63. On the third count both appellants were charged with the offence of forgery Contrary to Section 349 of Cap 63. On the fourth count both appellants were charged with the offence of altering false documents Contrary to Section 353 of Cap 63. On conviction on all counts the trial court sentenced the appellants to 24 months imprisonment an each count all sentences running concurrently. They now file this appeal against sentence.

2. Under Section 354 (3)(b) of the Criminal Procedure Code the court while entertaining an appeal on sentence may increase or reduce the trial court’s sentence or alter the nature of such sentence. The exercise of that discretion is to have the principles set out in the case MACHARIA VS REPUBLIC [2003]KLR 115 in mind, that:

“The court does not alter a sentence on the mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence….. The court will also not ordinarily interfere with the discretion exercised by a trial Judge unless as was held in James Vs Republic [1950] EA 147. It is evident that the Judge has acted upon some wrong principles or overlooked some material facts.”

Justice F. Tuiyot considered the principle which ought to guide a court when considering an appeal on sentence in the case SUSAN ASIYO V REPUBLIC [2016] eKLR and stated:-

“This is an appeal against sentence only. The principles upon which an Appellate Court can interfere with the sentence of An Appeal Court are settled. They are:-

1. If sentence is manifestly excessive in the circumstances of the case, or

2. If Trial Court overlooked some material factor, or

3. took into account, some wrong material or

4. Acted on a wrong principle (see Bernard Kimani Gacheru vs Republic [2002] eKLR)”

3. The prosecution’s evidence was that both appellants forged title deed over property LAIKIPIA/NANYUKI/MARURA BLOCK 111/1539 (SWEET WATER), and fraudulently altered National identity card purporting it to be that of the registered owner of the aforestated property. Using those documents both appellants purported to sell the aforestated property to P W 4 Amin Mohamed Ali, for Ksh. 6. 7. Million. In that regard they obtained 10% of that purchase price being Ksh. 670,000 by false pretences. The 1st appellant falsely represented herself as the owner of the property while the 2nd appellant represented herself as the daughter of the 1st appellant to Amin Mohamed Ali.

4. In my view bearing in mind that Amin Mohamed Ali lost Ksh. 6. 7 million and in view of the gravity of the offence, which indeed is prevalent in the area of Nanyuki I agree with the submissions of Senior Principal Prosecution counsel that the trial court’s sentence was lenient. Considering the boundaries within which this court can consider altering the trial court’s sentence those boundaries do not present themselves within this case. On that ground both appellant’s appeal against sentence are dismissed.

Dated and Delivered at Nanyuki this 19th DECEMBER 2016

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: ………………….

1st Appellant: Jerioth Njeri Theuri

2nd Appellant: Lucy Wageci

For state: …………………………

COURT

Judgment delivered in open court

MARY KASANGO

JUDGE