[2016] KEHC 2496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 8 OF 2015

MUNENE NJERU ………….…..……………………..………….APPELLANT

-VERSUS-

REPUBLIC………………….....………...……….……............RESPONDENT

(An appeal from the conviction and sentence of the Principal Magistrate’s Court (M. Onkoba) at Gichugu, Criminal Case No. 74 of 2015 dated 18th February, 2015)

JUDGMENT

1. MUNENE NJERU,the appellant herein was charged with the offence of injuring an animal contrary to Section 338 of the Penal Code vide Gichugu Principal Magistrate’s Court Criminal case No. 74 of 2015. The particulars were that on the 15th day of February, 2015 at Karoke village, Kirima location within Kirinyaga County willfully and unlawfully killed an animal capable of being stolen a Ram valued at Kshs.7000 the property of Alvan Njeru Nguthi.

2. The Appellant pleaded guilty to the charge and was convicted on his own plea of guilty and sentenced to serve 3 years in jail. The appellant felt aggrieved by the sentence and filed this appeal on the following grounds namely:-

i. That the sentence was harsh and excessive.

ii. That the learned trial magistrate failed to consider that he was a first offender.

iii. That the case showed that it was a family matter requiring reconciliation.

3. At the hearing of this appeal the appellant contended that he was a first offender and that the complainant who is his father has since forgiven him after seeking reconciliation. He contended that the 19 months he has spent in prison has reformed him and asked this Court to consider this and the fact that he has a family as mitigating circumstance.

4. The Respondent through Mr. Sitati opposed this appeal pointing out that Section 348 of the Criminal Procedure Code does not afford the Appellant the right to challenge the sentence meted out against him after pleading guilty to the charge and added that the plea taken at the trial as unequivocal. Mr. Sitati’s other contention was that this was not the right forum for mitigation or reconciliation.

5. I have considered this appeal and the response made in opposition of the appeal. It is a fact that the Appellant herein admitted to the charge when the same was read over to him in a language which he clearly understood. It is true that the plea was unequivocal as submitted by Mr. Sitati, the counsel representing the state. I have looked at the cited provisions of Section 348 of the Criminal Procedure Code which provides as follows:-

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except to the extent or legality of the sentence.”

This Court can therefore in view of the circumstances obtaining at trial, consider this appeal only in so far as the legality or the extent of the sentence meted out is concerned.

6. The offence under which the Appellant pleaded guilty that is slaughtering a ram belonging to his father attracts a penalty of up to 14 years imprisonment. The trial court handed out 3 years imprisonment in exercise of its discretion exercised in accordance with Section 26 (2) of the Penal Code. This Court being an appellate court does not normally interfere with an exercise of discretion unless it is shown that the same was injudiciously done or a relevant factor was not considered or omitted or that an irrelevant factor in this instance in mitigation was taken into consideration. In the first place this Court finds that the legality of the sentence meted out is beyond reproach. The sentence was perfectly legal.

7. On the second limp of the legal provision, the Appellant is perfectly in order to challenge in this appeal the extent of the sentence meted out on him. On the basis of this finding as I have already observed above I can only interfere with the lower court’s exercise of its discretion if the trial court did not take into consideration a relevant mitigating factor which could have affected the length of the prison sentence handed over to the Appellant. I have considered the mitigating circumstances raised and considered by the trial court. This Court called for a social inquiry to be carried out on the Appellant after he raised a new development that he was remorseful and had since reformed and sought for reconciliation with his father. The probation report dated 25th September, 2016 is quite favourable in that regard. It is important to note that reconciliation is one of the most important guiding principles in the Constitution of Kenya 2010. Article 159 (2) (c) places premium on reconciliation as one of the forms of dispute resolution mechanism which should be promoted by courts. This Court finds that the trial court exercised its discretion. However, it did not have the benefit of a probation report or noted that the father had forgiven the son. This important mitigating factor though relevant was not considered and this court finds that had the same been considered it, perhaps in the spirit of promoting reconciliation, the sentence meted out could have been much less.

8. In the premises and on the strength of the period which the Appellant has already spent in prison (20 months) and the favourable report by the probation officer showing that the appellant has reformed and has been forgiven by his father, this Court finds merit in this appeal. The Appellant is given a chance to make up with his father and take care of his young family but he is cautioned to be of good behavior and be useful to his family and community. The appeal is allowed and the sentence is reduced to the term he has already served. He shall therefore be released forthwith unless lawfully held.

Dated and delivered at Kerugoya this 26th day of October, 2016.

R. K. LIMO

JUDGE

26. 10. 2016

Before Hon. Justice R. K. Limo J.,

State Counsel Mr. Omayo

Court Assistant Naomi Murage

Interpretation English/Kiswahili

Omayo for State present

Appellant in person present.

COURT: Judgment signed, dated and read in the open court in presence of Munene Njeru appearing in person and Omayo for the Respondent.

R. K. LIMO

JUDGE

26. 10. 2016