[2022] KEHC 10057 (KLR)
The court found that the applicant had admitted knowledge of the stolen nature of the items and, based on the pre-sentence report, was part of a well-coordinated gang. The sentence of two years' imprisonment was within the legal limits and, in fact, lenient compared to the maximum penalty of seven years. No...
Source-derived case information.
- Citation
- [2022] KEHC 10057 (KLR)
- Parties
- Applicant: Reuben Mutemi Musili; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E388 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Sentence Review, Possession of Stolen Property, Penal Code Section 323, Mitigation, Probation, Criminal Procedure Code Section 362
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben Mutemi Musili
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the sentence imposed on the applicant was illegal, incorrect, or improper under Section 362 of the Criminal Procedure Code.
- 2 Whether the applicant should be placed under probation supervision instead of serving a custodial sentence.
Ratio Decidendi
The court found that the applicant had admitted knowledge of the stolen nature of the items and, based on the pre-sentence report, was part of a well-coordinated gang. The sentence of two years' imprisonment was within the legal limits and, in fact, lenient compared to the maximum penalty of seven years. No illegality, incorrectness, or impropriety was demonstrated in the trial court's sentencing. The applicant's personal circumstances and mitigation did not outweigh the seriousness of the offence and the aggravating factors identified. Therefore, there was no basis for the High Court to interfere with the sentence imposed by the subordinate court.
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
Musili v Republic (Miscellaneous Criminal Application E388 of 2021) [2022] KEHC 10057 (KLR) (Crim) (12 July 2022) (Ruling)
Neutral citation: [2022] KEHC 10057 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Miscellaneous Criminal Application E388 of 2021
LN Mutende, J
July 12, 2022
Between
Reuben Mutemi Musili
Applicant
and
Republic
Respondent
Ruling
1. Reuben Mutemi Musili, the Applicant, was arraigned in court and charged with the offence of being in possession of suspected stolen property contrary to Section 323 of the Penal Code. He admitted the charge at the outset. A pre-sentence report file by the Probation Officer in his regard was not favourable. It was found that the applicant and his friends, operated a well-coordinated gang that masquerade as porters within the City Centre and end up stealing goods from unsuspecting innocent Kenyans. This made the learned trial Magistrate sentence him to serve two (2) years imprisonment.
2. The applicant approached this court through an application pursuant to the provisions of Section 362 of the Criminal Procedure Code (CPC) seeking review of the sentence mated out to preferably an order that he be placed under probation supervision. The application is premised on grounds that he will never engage in criminal activities, his son lives with his elderly mother who is seriously sick and suffers from epilepsy, and both of them depend on him. That he is ill as he suffers from chronic illness, ulcers and his incarceration will lead to deterioration of his health.
3. The application is opposed by the Respondent. Ms. Akunja, learned Counsel for the State, argued that the sentence was legal and lenient considering the offence committed.
4. A party who desires to obtain orders pursuant to Section 362 of the CPC must demonstrate existence of an illegality,Incorrectness or impropriety of the order made by the Subordinate Court or any other irregularity.
5. The complaint of the applicant is in respect of the sentence meted out. Section 323 of the Penal Code provides that:Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanor.
6. Section 326 of the Penal Code provides thus:Any person who, without lawful excuse, knowing or having reason to believe the same to have been stolen or obtained in any way whatsoever under such circumstances that if the act had been committed in Kenya the person committing it would have been guilty of a felony or misdemeanor, receives or has in his possession any property so stolen or obtained outside Kenya, is guilty of an offence of the like degree (whether felony or misdemeanor) and is liable to imprisonment for seven years.
7. The mitigation by the applicant indicated that he had knowledge of the fact of the items having been stolen, therefore he was liable to be sentenced to seven (7) years imprisonment, considering the pre-sentence report filed. Therefore, the sentence meted out was lenient.
8. In the premises, the application is unmeritorious, accordingly, it is dismissed.
9. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 12TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Adhiambo - DPPCourt Assistant - Mutai