[2017] KEHC 2042 (KLR)

REPUBLIC OF KENNYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL APPEAL NO.19 OF 2017

(An appeal from original conviction and sentence of Ogembo PM’S Case No. 1582 of 2014 by Hon. CAROLINE R. T. ATEYA (RM) - Resident Magistrate dated 25th May, 2016)

JOHN MOI MIRUKA..................APPELLANT

VERSUS

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

JUDGMENT

1. JOHN MOI MIRUKA, the appellant herein and his co-accused MOSES ABUYA (deceased) were arraigned before the trial court where they were charged with the offence of burglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code. The particulars of the offence were that on the night of 25th and 26th September 2014 at an unknown time at Nyamaiga market Moniaku sub-location in Gucha South District within Kisii County, jointly broke and entered the shop of one Kenya Nyakunda with intent to steal and did steal therein 20kgs of nails, 2kgs of hybrid maize seeds, ten empty sacks, assorted foot wear, assorted utensils, three canvas chandarua and other assorted goods all valued at Kshs. 66,000/=.

2. They also faced an alternative charge of handling stolen property contrary to Section 322 (2) of the Penal Code the particulars being that on 6th October 2014 at Bomware village in Moniaku sub-location in Gucha South District within Kisii County, otherwise than in the course of stealing, dishonestly handled 20kgs of nails, one jerrican of 20litre, one white jug, one red jug, one red basin, ten empty sacks, one pair of rubber ladies shoes, 2kgs hybrid seeds, black men’s shoes all valued at Kshs. 66,000/- knowing or having reason to believe to be stolen property.

3. The prosecution tendered the evidence of 5 witnesses at the trial before the lower court, however, the appellant’s co-accused died before the conclusion of the prosecution’s case after which the trial court found that the appellant herein had a case to answer and he was put on his defence. The appellant gave an unsworn statement in his defence and at close of the trial, the trial magistrate found that the main count of burglary and stealing was not proved to the required standards but convicted the appellant on the alternative charge of handling stolen property after which he was sentenced to serve 7 years imprisonment with hard labour.

4. Aggrieved by both the conviction and sentence, the appellant filed the instant appeal on 8th June 2016 and outlined his main grounds of appeal to be that the trial magistrate did not properly evaluate the evidence placed before him and that the procedure adopted in recovering the alleged stolen property was questionable.

5. When the appeal came up for hearing, the appellant filed written submissions in which he mainly challenged the sentence and prayed for the reduction of his prison term while citing family commitments especially the fact that he was the sole bread winner of his family comprised of young school-going children.

6. In response to the appellant’s submissions, Miss Mbelete, counsel for the state, conceded that the prison term of 7 years with hard labour was excessive punishment considering the gravity of the offence and the value of the property found in the appellant’s possession. She urged the court to consider revising the sentence.

7. This being a first appeal, this court is under a duty to consider the evidence tendered before the trial court afresh with a view to arriving at its own independent conclusions. (See Okeno vs. Republic (1982-88) KLR 1136).

8. A brief summary of the evidence tendered before the trial court was as follows:

9. PW1, Kenya Nyakundi the complainant herein testified that he, on 26th September 2014, woke up to the sad realization that his shop had been broken into and assorted goods stolen but that after 5 days, he got the pleasant news that some of the stolen items had been recovered from the appellant. On cross examination, he stated that the nails were found in the appellant’s house even though he was not present during the recovery of the goods and only managed to identify them at the police station.

10. PW2 Eveneo Chapicho Ondieki, a clan elder and the appellant’s uncle accompanied the police officers to the appellant’s house where the stolen items were recovered. He stated that he knew the appellant as a thief as he had previously stolen from a widow.

11. PW3 Joseph Nyakweba, also a clan elder testified that the accused was his cousin and that he received a call from the complainant regarding the recovery of the stolen items from the appellant’s house. He witnessed the recovery of the stolen items from the appellant’s house.

13. PW4 Evelyn Nyaboke John was the appellant’s wife. She testified that the stolen items belonged to Moses Abuya (deceased) the appellant’s former co-accused who had requested the appellant to keep for him the said items while claiming that his own house was under repair. She stated that she did not know that the items were stolen.

12. PW5 was No. 67085 CPL Francis Juma from Nyamaiyu police station was the investigating officer. He searched the appellant’s house in the presence of PW4 and found the stolen items which he recovered and presented in court as exhibits.

13. In his unsworn testimony in court, the appellant stated that he had a land dispute with his uncle one Ainea Chepchum which had been reported to the police where an agreement was arrived at that he would compensate Ainea for damaging his fence but that when he failed to pay the uncle, the police arrested him and charged him with the offence of burglary which he knew nothing about.

Analysis and determination

14. I have carefully considered the record of appeal and the parties’ respective submissions. I note that the main issues for determination are firstly, whether the offence of handling stolen property was proved against the appellant and secondly whether the sentence passed against the appellant was manifestly harsh or excessive considering the circumstances of the case.

15. On the first issue of proof of the offence of handling stolen proprty, I am satisfied that there was sufficient and corroborated evidence from the appellant’s own relatives including his own wife (PW4) to the effect that some of the stolen items, to wit, red and black basin, jerrican, 5 pairs of shoes, 2 jugs and hybrid maize seeds were recovered from the appellant’s house. The said items were positively identified by the complainant to be part of the items that were stolen from his shop on the night of 25th and 26th September 2014.

16. I am therefore satisfied that the trial court was justified in convicting the appellant for offence of handling stolen property and I uphold the conviction.

17. Turning to the issue of sentence, I note that Section 322 (1) (2) of the Penal Code stipulates as follows on the offence of handling stolen goods:

“322. (1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.

(2) A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years.”

18. In the instant case, as I have already stated in this judgment, the appellant was sentenced to serve 7 years imprisonment with hard labour in which case, the sentence was lawful and indeed, a far cry from the maximum 14 years stipulated under Section 322 (2) of the Penal Code. Both the appellant and the state were however in agreement that the sentence meted on the appellant was manifestly harsh in view of the circumstances of this case.

19. As a general rule, sentence is a matter that rests solely at the discretion of the trial court and an appellate court can only interfere with it under specific circumstances.

20. In the case of Benard Kimani Gacheru vs Republic [2002] eKLR, the Court of Appeal had the following to say on appeal on sentence:

“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, any one of the matters already states is shown to exist.”

21. In the instant case, I note that in the probation officer’s report was filed in court before sentencing in which the probation officer stated as follows in his conclusion and recommendations section.

“The offender before the court is a married man with four children. He is believed to be a first offender with no previous criminal record. His co-accused died before the case is determined.

The offender has shown deep remorse and pleads for court’s leniency and has vowed to remain law abiding citizen.

Your Honour, in view of the foregoing factors, I therefore recommend him to be considered for a probation sentence.”

22. I find that the trial magistrate erred on sentencing as she did not address her mind to the probation officer’s report. Quite surprisingly and without giving any reasons or explanation whatsoever, the court opted to depart from the probation officers recommendations on non-custodial sentence by finding that the appellant was not suitable for a non custodial sentence contrary to the findings of the Probation Officer.

23. The trial court stated as follows on sentencing:

“Taking into account the recommendations of the sentencing policy, I find that the accused is not suitable to serve a non custodial sentence.”

24. I note that the appellant was in custody for almost 2 years while awaiting his trial which period the trial court ought to have factored in when passing the sentence. The lower court record shows that the trial court made no reference to the period that the appellant had been in custody. The total value of the stolen goods was reported to be Kshs. 66,000/= and it is worthy to note that a substantial part of the said goods were recovered. The probation officer gave the appellant very impressive ratings and therefore I am of the humble view that taking the totality of the above mentioned circumstances, the probation officer’s report and the offence under appeal, the sentence passed was manifestly harsh and not commensurate with facts and circumstances of the case. The appellant herein was a first offender and the sentence ought to have reflected this fact since sentence is intended to not only deter the offender and others from committing the same offence, but also to reform the offender.

25. Todate, the appellant has been in custody for a total of close to 3 years the remand period inclusive and I am satisfied that the period that he has been in jail is sufficient punishment for the offence that he was convicted for.

26. Consequently having dismissed the appeal on conviction, I find that the appeal on sentence is merited and I allow it to the extent that the sentence is reduced to the period that the appellant has already served in jail and therefore, I order that the appellant shall be set at liberty forthwith unless he is otherwise lawfully held.

Dated, signed and delivered in open court this 9th day of November, 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

- Mr. Otieno for the State

- Appellant in person

- Omwoyo court clerk