[2024] KEHC 11142 (KLR)

Kilua v Republic (Criminal Appeal E012 of 2023) [2024] KEHC 11142 (KLR) (12 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11142 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E012 of 2023

JM Omido, J

September 12, 2024

Between

Dapson Saitoti Kilua

Appellant

and

Republic

Respondent

(Being an appeal from the judgement, conviction and sentence of Hon. L. Mutai, Chief Magistrate delivered on 27th January, 2023 in Isiolo MCCR No. E423 of 2020)

Judgment

1. The Appellant Dapson Saitoti Kilua (the 1st accused person in the lower court) was jointly with two others charged before the trial court with the offence of being in possession of an endangered wildlife trophy contrary to Section 92(4) of the Wildlife Conservation and Management Act, 2013.

2. As is instructive from the charge sheet, the particulars of the offence were that on 6th day of July, 2020 at about 0930hrs, at Ngaresirkon area within Isiolo County, the Appellant and his confederates were jointly found in possession of wildlife trophies of an endangered species namely three (3) pieces of elephant tusks weighing 3. 5kg without a permit.

3. The Appellant denied the charge following which a trial was held in which the prosecution called six witnesses. The record of the trial court bears it that the Appellant and his two co-accused were placed on their defence upon closure of the prosecution case. The Appellant and the other two accused persons gave unsworn defences. The third accused person before the lower court called one witness.

4. Upon conclusion of the trial, the Appellant was convicted on the charge. The other two accused persons were acquitted under Section 215 of the Criminal Procedure Code, Cap 75 Laws of Kenya. The Appellant was subsequently sentenced and fined Ksh.2,000,000/- in default of which he would serve five (5) years imprisonment.

5. The Appellant’s instant appeal as filed, was predicated on the conviction and sentence of the trial court. He initially presented the following grounds of appeal vide the Petition of Appeal dated 30th January, 2023:a.That the prosecution did not prove its case beyond reasonable doubt.b.That the learned trial Magistrate erred in both law and fact by relying on contradictory and conflicting testimonies to convict the Appellant.c.The learned trial Magistrate erred in both law and fact by failing to note that vital witnesses were not called during the trial.d.The learned trial Magistrate erred in both law and fact by failing to find and hold that the presentation of the exhibited ivory during the trial fell short of the required standard in law.e.The Appellant was prejudiced as some witnesses testified in the absence of his Counsel.

6. The Appellant, who acts in person, subsequently filed brief submissions dared 16th August, 2024 in which he stated thus:1. That I humbly request the Honourable Court to review my sentence for I have served one year and eight months and I have reformed.2. That my Lordship/Ladyship (sic) that in the event the honourable court finds fit (sic) to serve the sentence, I request that it orders me to serve the remaining sentence in a non-custodial sentence of C.S.O. (Community Service Order) (sic).

7. When the appeal came up for hearing on 10th September, 2024, the Appellant addressed the court and stated as follows:Appellant: “My appeal is only limited to the sentence. I am not challenging the conviction.”

8. Although the present matter is presented as an appeal, the submissions of the Appellant as proffered seemed to have been grounded on a non-existent application for review of sentence. I will nonetheless treat the instant matter as an appeal on sentence in light of the fact and consideration that the Appellant is a layman and acts in person. As such, I will deal with the propriety and legality of the lower court’s sentence as the conviction, as per his presentation, is not challenged.

9. As the present appeal is only in respect of the sentence, it is important for me to state that the circumstances under which an appellate court will interfere with the sentence of a trial court are limited.

10. The case that guides me in this regard is S. vs Malgas 2001 (1) SACR 469 (SCA in which the court observed as follows:“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court….However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking” “startling” or “disturbingly inappropriate” similarly in Mokela vs The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:“It is well established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”

11. On the same issue, in the case of Ogolla s/o Owuor vs Republic [1954] EACA 270 the East Africa Court of Appeal stated as follows:“The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors.”

12. There is also the Court of Appeal case of Benard Kimani Gacheru v R [2002] eKLR in which it was held 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 stated is shown to exist.”

13. That said, the question for determination is whether the trial court imposed the correct sentence and/or acted upon the correct principles and considered the relevant and/or material factors when sentencing the Appellant. In a nutshell, interference by an appellate court of a sentence is limited to the determination as to the lawfulness or otherwise of the sentence.

14. The penalty for the offence for which the Appellant was convicted is to be found in Section 92(4) of the Wildlife Conservation and Management Act, 2013. Let us read it:92(4).Offences relating to endangered and threatened species –Any person without permit or exemption issued under this Act is in possession of any live wildlife species or trophy of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a fine of not less than three million shillings or a term of imprisonment of not less than five years or both such fine and imprisonment.

15. Section 354 Criminal Procedure Code states ( in so far as it relates to this appeal ):(1)_(2)_(3)The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may(i)_(ii)alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or(iii)with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;(b)_”

16. In the case of JJW v Republic (Kisumu) Criminal Appeal No. 11 of 2011 (ur) where the appellant had been sentenced to seven years imprisonment but which sentence was enhanced on appeal to a sentence of ten years without notice we held that:

17. “It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.”

18. In another case of Stanley Nkunja v Republic Criminal Appeal No. 280 of 2012 this court observed that:

19. “While it is prudent, and fair, to warn the appellant and give him a notice of enhancement, we are of the view that such a notice is not required in respect of an illegal sentence. This is because by virtue of the provisions of Section 347 (2) of the Criminal Procedure Code, appeals to the High Court may be on matters of facts and law. Illegality to a sentence is a matter of law and therefore, the learned Judge was correct in enhancing the sentence to life imprisonment.”

20. In Kingsley Chukwu v Republic Criminal Appeal No. 257 of 2007 this court on a second appeal enhanced sentence despite the fact that no notice of enhancement of sentence had been given and there was no cross – appeal.

21. In the case of Hosea Otieno Wetete v Republic (Kisumu) Criminal Appeal No. 326 of 2010 (ur) we faulted the High Court for enhancing sentence when there had been no warning of any sort to the appellant. We said:

22. “Lastly on that aspect of sentence, the record shows that after the appellant had pleaded for leniency on sentence, the learned Judge recorded that he warned the appellant that the sentence could be enhanced. With respect that was not of any effect. The warning should have been done before the full hearing started and the appellant should have been asked if he understood the warning and should have been given a chance to choose his next action on the matter in view of the warning. All this was not done and thus the recorded warning after the appellant had addressed the court was a lip service to the course of justice.”

23. The position was the same in the case of John Otieno Mumbo v Republic Criminal Appeal No. 85 of 2011 (ur) where a twenty years imprisonment was enhanced on first appeal to imprisonment for life. We said:

24. “... The remaining complaint relates to sentence. A complaint against severity of sentence is, by dint of the provisions of section 361 (1) (a) of the Criminal Procedure Code, one of fact and ordinarily would not be for our consideration. However, the appellant's complaint, is not one of mere severity of sentence. The record shows that he was sentenced to 20 years imprisonment by the learned trial magistrate and when he appealed to the High Court, the same was set aside and substituted by a sentence of life imprisonment. The record does not show that the learned Judge ever warned the appellant that in the event of his appeal failing, the sentence which had been imposed upon him by the trial court would be enhanced to life imprisonment. In our view, the appellant was entitled to the warning for him to consider his options which would probably have included preparation to specifically address the issue and the eventuality. He was unfortunately not afforded that opportunity...”

25. As will therefore be seen although there is no legal requirement for the State to file a cross – appeal an appellant must be informed at the earliest opportunity, at the commencement of hearing of his appeal, that there is a real danger that should the appeal be heard and fail a lesser sentence could be enhanced by the High Court in terms of the said Section 354 of the Criminal Procedure Code.

26. A perusal of the lower court record informs me that the Appellant was first presented before the court for plea on 24th March, 2022. He remained in custody until 25th January, 2023 when he was sentenced to 10 years imprisonment for the offence of grievous harm.

27. The Appellant complains that when sentencing him, the trial court went afoul of Section 333(2) of the Criminal Procedure Code, which provides as follows:333(2).Subject to the provisions of Section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

28. The above provision, (subject to Section 38 of the Penal Code), impels the sentencing court to mandatorily consider the period that an accused person has spent in custody when imposing a sentence. Section 38 of the Penal Code deals with situations where a sentence is passed on an escaped convict and is therefore not applicable to the present case.

29. In sentencing the Appellant, the trial court rendered itself as follows:“I have considered the nature of the offence and the circumstances under which it was committed. I note that the accused person’s action had the potential of taking away the Complainant’s life. Considering that the penalty prescribed in law is imprisonment for life and putting into consideration the mitigation by the accused person. I also exercise my discretion and sentence the accused person to 10 years imprisonment. Right of appeal within 14 days. File closed.”

30. The Judiciary Sentencing Policy Guidelines provide as follows:“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

31. Undoubtedly, from the proceedings on sentence, the learned trial Magistrate did not consider the period that was spent in custody by the Appellant, preceding his sentence, which in my view was material misdirection that paves way for this court to interfere with the sentence imposed by the learned trial Magistrate. How have superior courts dealt with this issue, when faced with the same?

32. In the case of Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR the Court of Appeal held that:-“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by Section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”

33. The same court in Bethwel Wilson Kibor vs Republic [2009] eKLR expressed itself as follows:“By proviso to Section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

34. I am therefore guided that as the trial court did not specifically state that the period that the Appellant spent in custody was considered when sentencing him, the court infracted Section 333(2) of the Criminal Procedure Code.

35. Being of the foregoing inclination, I allow the appeal on sentence, only to the extent that I order that the sentence of 10 years imposed by the trial court shall run from 24th March, 2022 and not 25th January, 2023, being the date that the Appellant was first presented before the court for plea and was thereafter detained in custody.

DELIVERED (VIRTUALLY), DATED & SIGNED THIS 12TH DAY OF SEPTEMBER, 2024. JOE M. OMIDOJUDGEAppellant: Present, virtually.Prosecution Counsel: Ms. Rotich.Court Assistant: Mr. Kinoti.