[2022] KEHC 17185 (KLR)

Mwangi v Republic (Criminal Appeal E034 of 2021) [2022] KEHC 17185 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 17185 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal E034 of 2021

SM Githinji, J

May 5, 2022

Between

Dauglas Kiriika Mwangi

Appellant

and

Republic

Respondent

(Appeal from the Sentence in Criminal Case No. E236 of 2021 of the Principal Magistrate’s Court at Mpeketoni Law Court-R.G. Mundia, PM dated 15th September, 2021)

Judgment

1. The appellant was charged in Count one with the offence of Assaulting a police officer in due execution of duty contrary to section 103 (a) of the National Police Act, 2011. The particulars of the offence being that on the 16th day of April, 2021 at about 17:30hrs at Kibaoni shopping centre of Mpeketoni division in Lamu West Sub County within Lamu county unlawfully assaulted No. 250737 PC Geoffrey Lomogol a Police officer by boxing him on the right hand elbow and left side ribs in due execution of his duties.

2. In Count two with willfully resisting arrest from police officer in due execution of the police officers’ duties Contrary tosection 103 of the National Police Service ActNo. 11 A of 2011. The particulars being that the appellant on the 16th day of April, 2021 at about 17:30hrs at Kibaoni shopping Centre of Mpeketoni division in Lamu West Sub- County within Lamu County by being violent willfully and unlawfully resisted arrest from PC Geoffrey Lomogol No. 250737 and PC Jairus Talam No. 72381 who were in due execution of police duties.

3. The appellant pleaded guilty to both counts and was sentenced to five years imprisonment. Aggrieved by the sentence of the trial court, the appellant lodged an appeal on the following grounds:1. That he is remorseful for his actions and promise not to repeat the same mistake again and regrets the circumstances under which he committed the offence.2. That he saved the judicial time in pleading guilty to the charges and thecourt should consider the issue in passing the new sentence.

Submissions Appellant’s Submissions 4. The appellant pointed to the court page 46 paragraph 22:18 of the sentencing guidelines where the appellant is obligated to highlight the mitigation factors to enable the court to impose the most appropriate sentence. He also submitted that he was remorseful for his actions and that he pleaded guilty to the charges and he considers himself to have cooperated during trial and hence urges the court to consider this in passing the new sentence.

Respondent’s Submissions 5. The respondent filed submissions on the 28th day of February, 2022. In their submissions, they identified two issues for determination. First, whether the plea process was conducted as per the law and whether the sentence meted out on the applicant was harsh and excessive. On the first issue, they relied on section 348 of theCriminal Procedure Code which states 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 as to the extent or legality of the sentence.”

6. On whether the plea was unequivocal, they relied on section 207 of theCriminal Procedure Code. They similarly relied on the authority of Seth Hamara GlizavRepublicHCCRA No. 53 of 2019 where the court held that the plea of guilty was properly entered since the charges had been read in a language the appellant understood, and after the facts were read, he accepted the same and even in mitigation he conceded his guilt and accepted.

7. On whether the sentence meted out is excessive and harsh they relied on the provisions of section 103 of the National Police Service Actwhich prescribes the sentence for assaulting a police officer and that of resisting arrest to be a fine of not more than 1 Million or an imprisonment of not more than 10 years or both. It was also their submission that the appellant was a repeat offender who was on a 6 months non-custodial sentence when he committed the current offence. They relied on the case of Benard Kimani Gacheru v Republic (2002) eKLR.

Analysis and Determination 8. Essentially, this is an appeal against the sentence of five years imprisonment.

9. In determining whether to interfere with the said sentence, I must bear in mind the guidance in the principles which have been firmly settled as far back as 1954, in the case of Ogolla s/o OwuorvR, (1954) EACA 270. These principles determine as to when, an appellate court will act in exercising its discretion to review or alter a sentence imposed by the trial court: the court stated;“The court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R v Shershowsky (1912) CCA 28TLR 263).”

10. The record shows that in sentencing the appellant the learned trial magistrate stated;“Court has considered the circumstances of the case despite pleading guilty and thus saving court’s time the accused reoffended and assaulted law enforcers. From the foregoing the accused is sentenced to five years’ imprisonment”

11. The Sentencing Policy Guidelines at paragraph 3:1 speak about one of the principles of sentencing, the principle ofProportionality. It states;“The sentence meted out must be proportionate to the offending behaviour. The punishment must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighed in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.”

12. The Court of Appeal speaking to the issue of proportionality of sentence in Thomas Mwambu Wenyi vs Republic [2017] eKLR first pointed out that sentencing was the discretion of the trial court. The court cited with approval the holding of Bosire J. (as he then was) in Ambani v Republic(1990) KLR 161. Therein, the Judge stated that;“…a sentence imposed on an accused person must be commensurate with the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirely before settling for any given sentence.”

13. Having considered the sentencing guidelines outlined herein above, and the fact that the appellant though committed two offences and was convicted on both, was sentenced for only one to five years imprisonment, there is need to set the record right. I therefore correct the sentence to five years imprisonment on each of the two counts, and for the sentences to run concurrently. Such is not harsh and nor is it excessive. The Appeal lacks merit and is herein dismissed.

DATED, SIGNED AND DELIVERED AT GARSEN THIS 5TH DAY OF MAY, 2022. S.M. GITHINJIJUDGEIn the Presence of; -Mrs Mkongo for the stateAppellant in personCORAM: Hon. Justice S.M.GithinjiMrs Mkongo for the stateAppellant in person