[2023] KEHC 19602 (KLR)

Mbugua v Republic (Criminal Revision E061 of 2023) [2023] KEHC 19602 (KLR) (3 July 2023) (Ruling)

Neutral citation: [2023] KEHC 19602 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Revision E061 of 2023

GL Nzioka, J

July 3, 2023

Between

Jessy Ngugi Mbugua

Applicant

and

Republic

Respondent

Ruling

1. The applicant was arraigned before the Senior Principal Magistrate’s court at Engineer charged vide criminal case No. E1464 of 2022, with the offence of burglary contrary to section 304 (2) and stealing contrary to section 279 (b) of the Penal Code (herein “the Code”). He was further charged with an alternative count of handling stolen goods contrary to section 322 (1) of the Code. He pleaded guilty, to the main count and was convicted and sentenced to serve eight (8) years imprisonment.

2. However, by an application filed herein in court on; April 19, 2023, he seeks that the sentence be reduced and/or converted into a noon-custodial one. The application is supported by a document entitled “memorandum of sentence review” wherein he states that he pleaded guilty, first offender, remorseful and has learnt to be a law abiding citizen.

3. That he comes from a poor family background and is the sole bread winner therefore his incarceration has placed them in a very difficult situation. Further, that he did not give proper mitigation during sentencing and wish the court to note the same. That he is not appealing but merely seeking for sentence review that he serves the remainder of his sentence under Community Service Order or be set at liberty.

4. However, the respondent opposed the application and filed its submissions dated 12th June 2023 arguing that the offence the applicant was sentenced under has two limbs of burglary and stealing. That, the offence of burglary occurs when, in addition to satisfying the ingredients of housebreaking, it is proved that the offences occurred at night. Reliance was placed on the case of Anthony Kilonzo Mutuku vs Republic [2019] eKLR where the Court held that breaking under section 304 (1) (a) is for purposes of ingress while under section 304 (1) (b) breaking is for purposes of egress.

5. The respondent further submitted that, the sentence for burglary is seven (7) years imprisonment while that of stealing is fourteen (14) years’ imprisonment and the applicant was sentenced to eight (8) years imprisonment. The respondent relied on the case of; Benard Kimani Gacheru v Republic Cr. App No. 188 of 2000 where the Court of Appeal held that sentencing is the discretion of the trial court and that the appellate court will not interfere unless the sentence is manifestly excessive, the trial court overlooked some material factor, or considered some wrong material, or acted on a wrong principle.

6. The respondent urged the court to uphold the sentence as the offences of stealing and breaking into building are prevalent and calls for a deterrence sentence.

7. Be that as it may, following directions of the court, the Probation Department filed a pre-sentence report dated; June 9, 2023, that indicates the applicant is 45 years old and 6th born out of ten siblings. That his father is deceased while his mother is sickly. That, he dropped out of school in class 2 due to financial constraints and is thus illiterate, though he learnt masonry from his father. Furthermore, he has two children aged 5 years and 3 years however, separated from his wife and at time of his arrest he was working as a farmer.

8. The report further indicate that he admits to committing the offence and attributes it to harsh economic times and greed. However, he is remorseful and has understood the seriousness of the offence and therefore pleads for a non-custodial sentence. Even then it is indicated that, he did not provide contacts for his family and therefore their views were not captured.

9. On the other part, the local administration through the assistant Area Chief and the Nyumba Kumi leadership stated that the applicant is not well known in the area and therefore they could not give their view. The complainant’s views were also not captured as the probation officer did not have access to the police file and they were unable to trace the investigating officer.

10. In addition the report indicates that the applicant is diligent with no record of indiscipline and co-exists peacefully with other inmates. However, he has never been visited by any family members or friends while in custody. As a request of the aforesaid and by virtue of the fact that the information in the pre-sentence report was gathered mainly from the applicant and therefore it is not comprehensive and verifiable the applicant is not a suitable candidate for review of his sentence.

11. Be that as it may, the power of the court to exercise revisionary jurisdiction is provided for under section 362 of the Criminal Procedure Code (cap 75) Laws of Kenya which states“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

12. However, the section should be read together with section 364 of the Code which states as follow: -(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

13. In that regard, an order of the subordinate court will be revised if the same is incorrect, improper, and irregular or illegal. Consequently, the application is considered in the light of the trial court proceedings, the affidavit in support thereof, the respondents’ submissions and the sentence review report.

14. It is noteworthy that, the applicant was charged with the offence of burglary contrary to section 304 (2) of the Penal Code that states: -(1)Any person who—(b)having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof,is guilty of the felony termed housebreaking and is liable to imprisonment for seven years(2)2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.

15. The charge had a second limb of the offence of stealing contrary to section 279 of the Penal Code that states as follows: -“If the theft is committed under any of the circumstances following, that is to say —(b)if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; the offender is liable to imprisonment for fourteen years”.

16. The applicant was sentenced to serve eight (8) years which is lawful and legal. However, the accused pleaded guilty and saved court’s time. He is a first offender and indeed it is generally accepted that a custodial sentence should not be meted out to a first offender who should be accorded an opportunity for reform, unless there are circumstances which should be recorded to justify the imposition of a custodial sentence.

17. It also suffices to consider that the goods stolen were recovered and the value thereof should also be considered. In deed a prolonged custodial sentence for a first offender may be counterproductive when he is incarcerated alongside hard core criminals.

18. Taking the aforesaid in consideration I find that although the applicant is not recommended for sentence review in the pre-sentence report, the period of eight (8) years is harsh in the given circumstances. Therefore, that sentence is set aside and substituted with a custodial sentence of two (2) years from the date of sentence in the trial court.

19. It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 3RD DAY OF JULY, 2023,GRACE L. NZIOKAJUDGEIn the presence of:Applicant present virtually,Mr Atika for the respondentMs Ogutu Court Assistant