[2023] KEHC 25310 (KLR)

Meto v Republic (Miscellaneous Criminal Case E085 of 2022) [2023] KEHC 25310 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25310 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Case E085 of 2022

HI Ong'udi, J

November 15, 2023

Between

Clement Meto

Applicant

and

Republic

Respondent

Ruling

1. The Applicant Clement Meto was charged before CM’s Court Molo in Criminal Case No. E1100 of 2022 with the following offences:i.Stealing contrary to section 268 as read with 275 of the Penal code. Particulars being that the accused/applicant on the 14th day of June, 2022 at Londiani subcounty with in Kericho county stole 2 buckets of potatoes worth Ksh 800/- onions worth Ksh 4,000/=, Tomatoes Ksh 3,000/= all totalling Ksh 7,800/= the property of Mercy Cherono.Alternative countii.Handling stolen goods contrary to Section 322 (1)(2) of the penal code. The particulars being that the accused on the 14th day of June, 2022 at Londiani subcounty within Kericho county otherwise that in the course of stealing dishes secretly retained tomatoes and potatoes knowing or have reason to believe them to be stolen goods.

2. The Applicant was not able to take plea on 16th and 21st June, 2022 because of an injury he had suffered on his leg. The charge was read to him on 27th June, 2022 and he admitted it. Facts were then read and explained to him and he admitted the same. He was thus convicted on his own plea of guilty, mitigated and was sentenced as follows:“Accused is hereby sentenced to serve five years imprisonment on each limb and (consecutively) and the motor bike Reg. No. KMDX 737Y used in commission of the offence is hereby forfeited”.

3. The Applicant filed this undated Notice of Motion basically seeking a review of the order directing the sentences to run consecutively to read concurrently.

4. The application was argued orally. All that the Applicant submitted on was that he wanted his sentences to run concurrently and he be placed on probation.

5. The application was apposed by the prosecution counsel Mr. Kihara, who submitted that at the time of offence the Applicant was armed with a panga and further that the counsel, contended that the Applicant had not shown that the sentence was irregular. That he should have appealed and not applied for review. To him the sentence was lenient.

6. Section 268 of the Penal Code provides:A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.Section 275 of the penal code provides:Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years

7. From the facts of the case and the provisions under which the Applicant was charged it is clear that he was accused of stealing groceries. Further the charge sheet only shows stealing as the only offence that was committed. There is no 1st and 2nd limb stated therein and even the conviction does not make mention of two limbs. Its only in sentencing that the trial court came up with the issue of limbs. Besides the creation of limbs, the trial court ordered that the sentences are to run consecutively.

8. Section 275 of the penal code provides:“A person convicted of stealing “is liable” upon conviction, to a sentence of three years imprisonment”.It does not impose a mandatory minimum sentence and so the court has discretion to impose a lesser sentence or fine.i.Daniel Kyalo MuemavRepublic [2009] eKLRii.Tonny Kiprono Ngetich [2019] eKLR

9. In this particular case the applicant pleaded guilty to stealing groceries i.e potatoes worth Ksh 800/=, onions Ksh 4,000/= and tomatoes Ksh 3,000/= totalling Ksh 7,800/=. These three (3) items were produced in court as P.EXB 1, 2 and 3. The much talked about panga was never produced as an exhibit in court, and the charge sheet does not make mention of it. I do not therefore find it relevant here.

10. My finding is that the applicant has properly moved this court for Review because of the errors apparent on the face of the record. These are:i.There were no two limbs to this offence which was a simple offence of stealing carrying only one sentence or fine.ii.Section 275 of the penal code provides for a sentence of three (3) years upon conviction. The imposition of a sentence of five (5) years was unlawful.iii.The imposition of two sentences with an order for them to run consecutively was an error apparent on the face of the record requiring this courts intervention.iv.I therefore allow the application and set aside the sentences imposed together with the order for the sentences to run consecutively by the learned trial Magistrate on 27/6/2022. I substitute the same with a single sentence of two (2) years imprisonment to run from the date of conviction (27th June, 2022).

11. Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 15TH DAY OF NOVEMBER, 2023 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE