[2022] KEHC 12881 (KLR)

Makokha v Republic (Criminal Appeal E120 of 2021) [2022] KEHC 12881 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12881 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E120 of 2021

HI Ong'udi, J

September 12, 2022

Between

Tonny Perrez Makokha

Appellant

and

Republic

Respondent

(Arising from the conviction and sentence in Webuye Senior Principal Magistrate’s Criminal Case No. 173 of 2021 delivered by N. N. Barasa Principal Magistrate on 28th June 2021. )

Judgment

1. Tony Perrez the appellant herein was convicted and sentenced on his own plea of guilty for the offence of stealing stock contrary to section 278 of the Penal Code. The particulars being that the appellant on the 10th June 2021, at Makhele B village, Matulo sub location, in Webuye West sub county within Bungoma county, stole one heifer greyish / white in colour valued at 30,000/= the property of Esther Nakhumicha Wanjala.

2. He faced an alternative count of handling stolen property contrary to section 322 (1) of the Penal Code. The particulars being that the appellant on the June 10, 2021, at Sango slaughter house Maraka Sub location, in Webuye East sub county within Bungoma county, otherwise than in the course of stealing dishonestly undertook the retention of one heifer knowing it to be a stolen property or unlawful. This was not considered since he pleaded guilty to the principal count.

3. Upon conviction and after receiving a probation report dated June 18, 2021 the court sentenced him to five (5) years imprisonment.

4. He was dissatisfied and filed this appeal, raising the following grounds:-i.That, the appellant is a first-time offender who doesn’t know how to handle court matters and that is why it has caused a delay in the appeal.ii.That, the appellant is of a tender age a student whose future purely lies on education.iii.That, the appellant didn’t have any advocate or any legal aid and hence could not defend himself.iv.That, the appellant was not served with any of the witness statements of the case thus rendering his defense impossible.v.That the appellant prays for bond pending appeal so that he can pursue his academics.vi.That he wished to adduce more evidence once this appeal is entered.

5. When the appeal came for hearing the appellant made oral submissions. He submitted that he had abandoned his appeal against conviction. He challenged the sentence saying it was very heavy. That he had left a wife and small baby upon conviction.

6. The respondent’s submissions were field by learned counsel M/s Hilda Omondi and they are dated August 4, 2022. It’s her submission that the appellant pleaded guilty to the charge and was convicted. That section 207 of the Criminal Procedure Code was well adhered to. His plea was therefore unequivocal, and should not be interfered with. She relied on the cases of:-i.Adan v Republic[1973] E.A 445ii.Obedi Kilonzo Kevevo v Republic [2015] eKLR

7. On sentence counsel submitted that the offence the appellant was convicted of attracts a penalty of upto 14 years imprisonment. That the sentence of five (5) years was therefore not excessive. She also pointed out that the issues raised by the appellant in the appeal were never raised in his mitigation in the lower court.

8. The record shows that the appellant first appeared in court on June 11, 2021, when the charge was read to him in kiswahili language which he understood. He admitted the charge and the full facts were read to him. He admitted the same, and he was then convicted. Upto that point this court is satisfied that the plea was unequivocal. The appellant is not challenging the conviction.

9. When called upon to mitigate this was all that he told the court,“I have a problem. When I go home, I steal without consciousness.”

10. The learned trial magistrate called for a pre-sentencing report which was considered by the court, before sentence. The court confirmed that the appellant was a habitual offender as he had himself confessed.

11. I have had an opportunity of reading the pre-sentencing report dated June 18, 2021 and filed on June 21, 2021. It shows that the appellant dropped out of school in standard six (6) at Matulo primary school. He joined bad company in the village, which company is involved in stock theft. Generally he is a habitual thief and everyone in the village including his own parents fear for his safety if released. People in the village are baying for his blood. The victim is very bitter following her experience in recovery of her heifer. The only beauty is that the heifer was recovered.

12. The appellant is therefore not being truthful when he states that:-i.He was a student at the time of his arrest.ii.That he is married with a child.The pre-sentencing report is very clear on this.

13. I have considered the appellant’s history and conduct. The complainant was lucky to have recovered her heifer while still whole. The appellant is still young (now aged 20 years). He seems not to understand the seriousness of his involvement in crime and the embarrassment he is causing his parents. Inspite of his age I still find that he needs to be kept away from the villagers for a while. I therefore set aside the five (5) year sentence and substitute it with a sentence of three (3) years + six (6) months (3½ years) imprisonment, from the date of conviction. The appeal only succeeds to that extent.Orders accordingly.

DELIVERED VIRTUALLY SIGNED AND DATED THIS 12TH DAY OF SEPTEMBER, 2022 IN OPEN COURT AT NAIROBI.H. I. Ong’udiJudge of the High Court