[2023] KEHC 25060 (KLR)

Muthoka v Republic (Criminal Appeal E047 of 2022) [2023] KEHC 25060 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25060 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E047 of 2022

TM Matheka, J

November 10, 2023

Between

Kathele John Muthoka

Appellant

and

Republic

Respondent

(From the original conviction and sentence of Hon. J.D Karani (RM) in Makindu Resident Magistrate’s Court Criminal Case No. 316 of 2021 delivered on 9th July 2021)

Judgment

1. The appellant was charged with the offence of stealing motor cycle contrary to section 278A of the Penal Code. The particulars of the offence were that on the 28th day of April 2021 at Mwakira Market Kibwezi Sub-County, Makueni County, the appellant stole a motor cycle registration number KMCR xxxB make Skygo-7 blue in colour valued at kshs 90,000/=, the property of Melia Volkenssi Company.

2. In the alternative, he was charged with the offence of Handling stolen goods contrary to section 322 (1) (2) of the Penal Code. The particulars of the offence were that on the same day and place, the appellant otherwise than in the cause of stealing, dishonestly received or retained a motor cycle registration number KMCR xxxB make Skygo-7 blue in colour valued at Kshs 90,000/= knowing or having reason to believe it to be stolen property.

3. The appellant pleaded guilty.

4. The prosecution presented the facts of the case On 28th April 2021 at 8. 30am, the complainant, Joseph Areno, was heading to Kambu from Kibwezi on his motor cycle KMCR xxxB make Skygo blue in colour valued at kshs 90,000/=. When he got to Mwakila market, he parked at the shop of his friend Jeremiah Mulwa . When he returned he found it missing. He was informed that the appellant had struggled to switch it on and then headed to Kathivani. The matter was reported at Mtito Andei Police Station and the investigations led to recovery of the motorcycle from the appellant. The motorcycle was produced as P. Ex 1 and a certificate of insurance in the name of Melia Voi Company as P. Ex 2.

5. He pleaded guilty to the facts of the case and was convicted on his own plea of guilty.

6. The prosecution provided his previous records; In Cr case 278 of 2019 where he was placed on probation for stealing.

7. In mitigation he stated that he was not stealing the m/bike but had taken it without the permission of the owner to chase after someone who owed him money.

8. He was sentenced to 7 years’ imprisonment.

9. Aggrieved by that decision, the appellant filed this appeal and raised 3 grounds as follows;a.That I pleaded guilty to the offence.b.That I pray for leniency in consideration, analyzing and judgment decision.c.That my prayers are a non-custodial sentence if at all found guilty of the offence

10. Parties chose to canvass the appeal through written submissions. Accordingly, the parties complied and filed their respective submissions.

11. The appellant argued the three grounds together.

12. He submitted that he pleaded guilty to the offence because he had no intention of stealing the motor bike. That he had taken the motor cycle in order to run after a debtor who had run away with his money. That he was arrested at a bar when he was en route to returning the motor bike where he had taken it. He submitted that his aim was not to steal and his careless mistake was taking the motor bike without borrowing it from the owner.

13. The appellant sought leniency and submitted that he committed the mistake out of ignorance of not being well exposed to tackling some situations. He urged the court to allow him to complete the remaining part of the sentence under probation.

14. The State opposed the appeal through Prosecution Counsel Lucas Tanui. He submitted that the appellant was properly convicted and sentenced. That under section 348 of the Criminal Procedure Code, the appellant can only appeal on the severity of the sentence when the court finds that the plea was unequivocal. He submitted that the plea was unequivocal and the appellant understood the charges.

15. He submitted that although sentencing is the discretion of the court, the sentence of 7 years is excessive considering that the subject of the stealing was recovered. He invited the court to interfere with the sentence and pass an appropriate one.

16. Section 348. of the Criminal Procedure Code Provides thatNo appeal on plea of guilty, nor in petty cases 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 as to the extent or legality of the sentence.

17. The state concedes that the sentence is harsh in the circumstances of the case.

18. Section 278A. of the Penal Code provides for Stealing motor vehicleIf the thing stolen is a motor vehicle within the meaning of the Traffic Act (Cap. 403), the offender is liable to imprisonment for seven years.

19. The position of the prosecution is that since the Motorcycle was recovered, and the appellant pleaded guilty, the court can interfere with the sentence. It is evident that the court gave the appellant the maximum 7 years’ imprisonment without giving any reasons despite the presence of mitigating circumstances.

20. The appellant is not a first offender and had a similar offence of stealing in 2019 where he was placed on probation supervision.

21. In the circumstances, a non-custodial sentence may not be suitable.

22. The appeal is successful. The sentence of 7 years imposed by the learned trial magistrate is set aside and substituted with the sentence of three years’ imprisonment effective from the date he was arrested 29th April 2021.

DATED SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER, 2023. ..............................MUMBUA T MATHEKAJUDGECA - NellimaAppellant – PresentFor State – Kazungu