https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1358

Kathenya v Republic (Criminal Appeal 94 of 2020) [2026] KECA 1358 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1358 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 94 of 2020 S ole Kantai, A Ali-Aroni & JW Lessit, JJA July 3, 2026 Between John Njeru Kathenya Appellant and Republic Respondent (An appeal from the conviction and sentence of the High Court of Kenya at Chuka (Mabeya, J.) delivered on 26th May 2016inHCCRA No. 14 of 2015) Judgment 1.John Njeru Kathenya, the appellant herein, is before this Court by way of a second appeal, his first appeal having been dismissed by the High Court (Mabeya, J.) on 26th May 2016. 2.The appellant had been charged before the Principal Magistrate’s Court in Marimanti, with the offence of burglary, contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code (the Act). The particulars of the offence were that, between the nights of 24th and 25th December 2013 at Katue Location in Tharaka South District within Tharaka Nithi County, jointly with another, they broke and entered the dwelling house of Joram Muthengi with intent to steal, and stole N50 Solar battery, 5 core speaker, stereo power amplifier, Sony DVD player,two pairs of shoes and assorted clothing all valued at Kshs. 15,430. 3.He also faced an alternative charge of handling stolen goods contrary to section 322(G)(2) of the Act. The particulars were that on 30th December 2013, in Gatue Location, Tharaka North District, within Tharaka Nithi County, other than in the course of stealing, dishonestly received or retained an N50 Solar battery, a 5-core speaker, and a stereo power amplifier, knowing or having reason to believe they were stolen goods. 4.The appellant pleaded not guilty to both the main count and the alternative count, and the matter proceeded to trial, where the prosecution called 3 witnesses. At the close of the prosecution's case, the appellant was found to have a case to answer and was placed on his defence. Upon considering the entire evidence, the trial magistrate convicted the appellant of the offences of burglary and stealing and sentenced him to 3 years' and 2 years' imprisonment, respectively, and the sentences were to run concurrently. The appellant was dissatisfied with the verdict and appealed to the High Court, which dismissed the appeal, confirmed the conviction, and substituted the sentences with 10 years' imprisonment for burglary and 5 years' imprisonment for stealing. 5.The appellant, aggrieved by the High Court's decision, preferred this appeal. At the hearing of the appeal, the appellant abandoned the appeal against conviction; therefore, this appeal is against sentence only. However, to contextualise the appeal, we shall present the facts in summary form. 6.Joram Muthengi, PW1, testified that on 24th December 2013, at around 11:00 pm, he left for church to celebrate Christmas. He returned home at around 1:00 am and found that several items were missing: an AP solar battery, a radio amplifier, a speaker, two pairs of trousers, a bed cover, two bed sheets and two pairs of shoes. He attempted to follow up on the theft but was unsuccessful. 7.On 1st January 2014, he received a call from someone named Kamunda, who informed him that some of the stolen items had been recovered at the homes of Njeru and Kathuku and had been taken to the Marimanti Police Station. He went to the police station and identified his belongings. He produced a receipt for the items. The police later visited the scene of the theft and photographed the broken window. He knew the appellant as his home was about 4 km from his and confirmed that they had no previous disagreements. 8.PC Joab Muhande, PW2, testified that he was assigned to the Marimanti Police Station, where he performed general duties. On 30th December 2013, the Officer in Charge of Station (OCS) James Tarus, and the OCS of Gatunga discussed and agreed to conduct a joint operation at the Gatue Location in Tharaka North. During this operation, they suspected the appellant of possessing stolen goods. When they arrived at the appellant's home, he fled the scene. The officers recovered several items in his house, which were later identified by community members. 9.He testified further that on 25th December 2013, PW1 had reported that his goods had been stolen from his home. He was able to identify a speaker, a solar battery, and an amplifier as his. They asked the complainant for proof of ownership and verification; he provided receipts for the speaker and amplifier. 10.PC Daniel Cheruiyot, PW3, testified that on 25th December 2013, while at Marimanti Police Station with his colleagues, PW1 reported that on 24th December 2013, at around 11:00 pm, he had gone to church for Christmas night vigil about 1 km from his house. Upon returning home at 1:00 am, he discovered that his window had been broken and several items were missing, namely: an N50 solar battery, a stereo speaker, a power amplifier, a DVD Player, two pairs of shoes, and assorted clothing, all valued at Kshs. 15,450. 11.He further testified that they logged the report in the Occurrence Book and commenced investigations. PW3 and PC Kaliti visited PW1's house, noted the broken window, and photographed the scene. Later, they received tips about potential stolen items at the appellant's house, along with warnings that the appellant was dangerous and that access to his home would be difficult. 12.On 30th December 2013, OCS Marimanti and OCS Gatunga conducted a joint operation to access the appellant's house. Officers from Gatunga and the DC's office met at the DC's office in Tharaka North District and split into groups to search the appellant's home, his father's house, and his brother's house, where they recovered items from the appellant's house, including a battery, stereo, and amplifier, which PW1 identified and for which PW1 provided receipts. The appellant later surrendered to the Gatunga Police Station. 13.When placed on his defence, DW1, the appellant gave a sworn testimony and denied the offence. He testified that on 30th December 2013, his brother Alex Kiora (who was at the trial now deceased), came to his house at around 1:00 am. He asked him to go and fetch his wife, who had left for her home in Maragwa after they had a falling-out. They went there and negotiated, agreeing that he would get her the following weekend. 14.On their way back, at around 10:00 am, he encountered Chief Nyaga Kaongo, Peter Kithaka, Nyaga Ndatho and Njeru Karunga. His brother was ahead of him on a slope when the chief ordered men to shoot at them with arrows. His brother, who was ahead, was struck by an arrow shot by Peter Kithaka. 15.He testified that he dropped his bicycle and ran to the Gatunga Police Station to report what he had witnessed. On arrival at the police station, he was placed in custody for about five minutes before being transported to Marimanti. There, he also found his family in custody, including his father, Stephen Kathenya; his sister, Flora Ciamiti; his son, Timothy Njeru; and others. He spent the night in a cell, and the following day, he saw his brother's wife and children. 16.He was subsequently charged with breaking into a house and stealing, which he denied. He claimed that the items presented as evidence were not recovered from his house. He further claimed that his family was brought to court over a parcel of land belonging to David Kavindu, which the chief intended to sell to Kithinji. 17.According to him, when Kithinji purchased the land, he did not use it himself; instead, he rented it out to others. When Kavindu's wife received a letter granting her access to the land, those who had been renting it were upset, believing they had lost money. The chief was frustrated with the appellant’s family for refusing to allow him to sell David Kavindu's land. He further claimed that the chief was behind his arrest because his family did not support his activities. 18.The trial court, after reviewing the evidence presented by both the prosecution and the defence, was convinced that the appellant had committed the crime. As a result, he was convicted and sentenced to 3 years for burglary and 2 years for theft. The appellant subsequently appealed both the conviction and the sentence to the High Court. 19.The High Court found that the record showed that the appellant had been convicted on 3rd September 2014 in Marimanti Principal Magistrate's Court Cr. Case No. 225 of 2014 and sentenced to five (5) years without an option for a fine for the offence of handling stolen property. Nonetheless, the trial court decided to treat him as a first offender. When asked to mitigate,the appellant was neither remorseful nor regretful. He was recorded as telling the court, "I urge the court to make the sentence concurrent if it opts to imprison me." 20.The 1st appellate court found that there was evidence from PW3 and PW4 that it took a large number of police officers from two police stations, Gatunga and Marimanti, to mount the raid on the appellant's home because the appellant was considered dangerous by the local community. The judgment in the trial court was but one of six (6) related cases then pending before court against the appellant. The court found no evidence that the trial court considered any of these issues when sentencing the appellant. 21.The appeal was dismissed, the conviction was upheld, and the sentence was substituted with 10 years for burglary and 5 years for theft. 22.Aggrieved by the conviction and sentence, the appellant appealed to this Court against conviction and sentence but later filed a supplementary grounds of appeal, challenging the sentence only, on grounds that: the learned Judge erred in law by failing to recuse himself from hearing identical appeals, leading to a premeditated action plan; by demonstrated bias in enhancing and pronouncing identical sentences for twin appeals (No. 6 & 9 of 2014), showing grave impartiality; by enhancing the sentence to the maximum in two counts in one trial, which was excessively harsh, without considering section 14(4) of the Criminal Procedure Code, resulting in ambiguity due to consecutive sentences. 23.The appellant prays that this Court considers his additional mitigation, noting that he has taken technical courses in Tailoring and Dress Making while serving his sentence and is now remorseful, rehabilitated, and a seasoned tailor. The appellant is 56 years old and promises not to commit any further crimes.The appellant further argues that the appellate court has jurisdiction to interrogate sentences enhanced by the High Court. On the legality of the enhanced sentence, the appellant emphasises that the term "liable" in section 304 of the Penal Code allows for discretion and does not mandate a specific penalty. He contends that the High Court Judge's decision to enhance the sentence to the maximum of 10 years was ruthless and violated the right to a less severe sentence under section 50(2)(q) of the Constitution. In support of his contention, he relies on Opoya vs Uganda [1967] EA 752, where the court stated that "shall be liable to" does not require the imposition of the stated penalty but rather expresses a maximum sentence that may be imposed at the court's discretion. The appellant pleads with the court to invoke its power in the interest of justice and allow the appeal on the sentence. 24.On sentence enhancement, the appellant contends that the warning given by the High Court was insufficient for a layman, especially considering the fundamental aspect of due process. The appellant highlights that two similar appeals (No. 15/2016 and No. 14/2016) were heard on the same day, 21st April 2016,within minutes of each other, resulting in the same outcome of enhanced sentences for the appellant. This close timing, along with an immediately served notice of enhancement, reinforces the perception of bias, as the appellate Judge allegedly accepted the ambush of the notice and proceeded with both appeals simultaneously under emotional influence. In support of his contention, he relies on J.J.W. vs. Republic [2013] eKLR, Criminal Appeal 11 of 2011, where the Court held that despite the High Court's power to enhance or alter sentences under section 354(3) of the Criminal Procedure Code, a warning must be given to the appellant before enhancement in the absence of an appeal against sentence. The Court further stated that this information should be conveyed either by the prosecution filing a cross-appeal served in good time, or by the court warning the appellant at the commencement of the hearing that the sentence might be enhanced. 25.The appellant argues that he had no time to consider the implications of the prosecution's request for enhancement and that the appellate court hurriedly delved into hearing the appeal. The appellant submits that he did not understand or respond to the enhancement warning, as no response was recorded, and he questions the language used by the court, given his educational background and the lack of an interpreter. 26.Regarding the sentence, the appellant contends that the consecutive sentences of 10 years and 10 years, cumulatively amounting to 20 years’ imprisonment, are "manifestly harsh and excessive" for the nature of the offences. Although the offences occurred on different, successive nights within the same locality, the appellant contends that this judicial discretion is limited by section 14(4) of the Criminal Procedure Code, which dictates that the cumulative or aggregate imprisonment should not exceed fourteen (14) years. Therefore, the 20-year sentence is deemed harsh. The appellant argues that this was erroneous and prays that the appeal succeeds on the issue of the sentence's legality. 27.In opposing the appeal, the respondent’s counsel filed submissions dated 26th May 2025 and submits that it filed a notice of enhancement of sentence on the ground that the sentence was illegal, the offence having been committed at night. The first appellate court agreed with the prosecution, upheld the conviction, and enhanced the sentences as the law provided. 28.Prosecution counsel submits further that, having been found guilty and not appealing on conviction, section 348(A) of the Criminal Procedure Code comes into play. As the first appellate court rightly held, the sentence was improper, and the court was right to rectify it. He urges the court to confirm the first appellate court's sentence and dismiss the appeal. 29.This is a second appeal, and our mandate is defined by section 361 of the Criminal Procedure Code. This Court in the case of Karingo vs. Republic [1982] KLR 213, expounds on the Court’s mandate as follows:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari c/o Karanja vs. R (1956) 17 EACA 146).” 30.We have carefully considered the record of appeal, the rival submissions by the appellant and the respondent, the cases cited and the law. As correctly appreciated by the appellant, this being a second appeal, our jurisdiction is limited to matters of law only under section 361 of the Criminal Procedure Code. Ordinarily, the severity of the sentence is a matter of fact and would not fall within our consideration. However, where, as in this instance, the High Court enhanced the sentence, this Court is properly seized of the matter to interrogate the legality and propriety of that enhancement. In Mutia vs. Republic (Criminal Appeal E081 of 2023) [2024] KECA 684 (KLR), this Court held that:“The appellant is aggrieved by the enhancement of the sentence by the first appellate court, an issue that we consider to be a matter of law and hence open for our analysis. As rightly admitted by counsel for the respondent, it is trite that enhancement of a sentence handed out should only be done when the appellant has been given adequate notice of that possibility, so that he is informed of the consequences of proceeding with the appeal.” 31.The conviction of the appellant is not contested, and in any event, the two courts below made concurrent findings of fact that the appellant was found in possession of recently stolen items, thereby properly invoking the doctrine of recent possession. Accordingly, we say no more on the issue of conviction. 32.The appeal turns on the question of whether the sentence, as enhanced by the High Court, was lawful and proper. The appellant has raised several complaints touching on the enhancement, including a lack of adequate warning, alleged bias, and the imposition of what he terms a harsh and excessive sentence. However, in our view, the dispositive issue is whether the manner in which the sentences were structured was consistent with the law. 33.It is not in dispute that the High Court enhanced the sentence for burglary to ten (10) years imprisonment and for stealing to five (5) years imprisonment. We have considered the appellant’s mitigation, including his age, the period already served, and his rehabilitation efforts. While these are relevant considerations, we are mindful that sentencing remains a matter of judicial discretion. The first appellate court warned the appellant of the State’s notice of enhancement; he did not object to the same. The court found that the burglary occurred at night, which, under section 304(2), carries a maximum term of 10 years. It also considered the appellant's conduct, the fact that he faced multiple cases of the same nature, and that he did not appear remorseful. The court was persuaded to enhance the sentence. 34.The appellant contends that the effect of the High Court’s decision enhancing the sentences was to impose an aggregate sentence that is unlawful and excessive, and that the Judge ordered the sentences to run consecutively. The record indicates that the Judge ordered the sentences to run concurrently;therefore, the appellant’s complaint that the judge misdirected himself in imposing consecutive sentences is misplaced. 35.Clearly, the complaint about the enhancement of the sentence being raised for the first time now is an afterthought. This fact, coupled with the reasons cited by the first appellate court, leads us to decline to interfere with the Judge’s decision on enhancement of the sentence. For avoidance of doubt the appellant shall serve ten (10) years imprisonment for the offence of burglary, and five (5) years imprisonment for the offence of stealing. The sentences shall run concurrently. 36.In the end, the appeal is found to have no merit and is dismissed. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAIJUDGE OF APPEAL................................J. LESIITJUDGE OF APPEAL................................ALI-ARONIJUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.