[2023] KEHC 19581 (KLR)

Mwangi v Republic (Criminal Appeal 048 of 2022) [2023] KEHC 19581 (KLR) (3 July 2023) (Judgment)

Neutral citation: [2023] KEHC 19581 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal 048 of 2022

GL Nzioka, J

July 3, 2023

Between

John Mara Mwangi

Appellant

and

Republic

Respondent

(Being an appeal against the decision of conviction and sentence of; Hon. J. Karanja, (SPM), delivered on 11th September 2019 vide Criminal Case No. 2271 of 2018, at the Chief Magistrate’s Court at Naivasha)

Judgment

1. The appellant was arraigned before the Chief Magistrate’s court on October 5, 2018 charged jointly with the others not before the court with offence of; shop breaking and committing a felony contrary to section 306 (a) of the Penal Code (herein the “Act”) and an alternative count of handling stolen property contrary to section 322 of the Act. The particulars of each count are as per the charge sheet.

2. The prosecution case was supported by four (4) witnesses, to the effect that on September 21, 2018, Joseph Kimani Kuria (herein “the complainant”) locked his shop and went home. The following day he found the shop broken into and an assortment of 109 mobile phones worth about Kshs 1,100,000, a solar panel worth aboutKshs 6,000 and a woofer had been stolen. However, the phone batteries were not stolen. He reported the matter to the police station.

3. That, after three weeks, the complainant was approached by two customers requesting for batteries for the mobile phones and he became suspicion and sought to know where they had bought the phones from. At the same time, on October 3, 2018, Joyce Wambui (PW2) the chairlady of Nyumba Kumi at Sierra Leone was requested by her tenant, Nicholas, to lend him Kshs 2,000 to buy two phones from a person called Newton. She became suspicious and thought the phones may have been stolen and alerted a police officer called Carol. She then took Nicholas to the police station to assist Carol with investigation.

4. In the company of No 68623 PC James Mwathe (PW3), Caroline Kibongo went to the house of one Henry Omondi Oloo, the appellant’s co-accused, and recovered phones that did not have batteries. That, Omondi informed them that he received the phones from the appellant.

5. The officers were led by Omondi to the appellant’s house where they recovered a black Oppo mobile phone, which was among the stolen phones and arrested the appellant and co-accused and took them to the Police Station. Upon interrogation, they led the police to the house of the appellant’s co-accused where they recovered three Itel phones.

6. That the police interrogated the accused persons who led them to the shop of one Kelvin Gathiru, where they recovered a phone charger and two phones, with one having been dismantled. That, the complainant identified the recovered phones as among the ones stolen from his shop. The suspects were charged accordingly.

7. At the close of the prosecution case, the court ruled that the appellant had a case to answer and placed him on his defence. The appellant gave an unsworn statement and denied committing the offence. He stated that on the material date from morning till 4pm he was engaged in boda boda business, when a police officer; Githure, requested him to lead him to Maxwell. That, they were arrested together and taken to the police station and arraigned in court.

8. At the conclusion of the trial, the learned trial magistrate delivered a judgment dated; August 25, 2018 in which he found the prosecution had proved the case beyond reasonable doubt and convicted the appellant on the main count the offence and sentenced him to serve seven (7) years imprisonment and ordered that the sentence be served consecutively to any sentences the appellant was serving.

9. However, the appellant is aggrieved by the decision of the trial court and has appealed against it on the grounds stated in the petition of appeal filed on November 11, 2022 and memorandum of appeal as here below reproduced:a.That the learned trial magistrate erred in law and fact when he sentenced the appellant to harsh sentence and did not order that the sentence should run concurrently.b.That, the learned trial magistrate erred in law and fact by sentencing the appellant to a sentence term that is not only harsh but also excessive in light of the facts and circumstances of this case.c.That, the learned trial magistrate erred in law and fact by failing to find that the prosecution did not prove the ingredients of the offence beyond reasonable doubt.d.That, the learned magistrate erred in law and fact by failing to consider the time spent in remand custody during the appellant’s trial as per section 333 (2) of the Criminal Procedure Code article 50 (2) (p) (q) of 2010 Kenyan Constitution.e.That, learned magistrate erred in law and fact by failing to appreciate that the conduct of the complainant was consistent with that of an adult.f.That, the learned trial magistrate erred in law and fact in holding that the prosecution proved its case beyond reasonable doubt yet there was no such proof before court.g.That, the learned trial magistrate erred in law and in fact by falling to consider all the evidence placed before the court with an open mind despite the fact that the accused had pleaded not guilty and had steadily maintained that he had not committed the offence.h.That the learned trial magistrate erred in shifting the burden of proof to the accused person instead of requiring the prosecution to prove his case beyond reasonable doubt.i.The learned trial magistrate erred in law and fact by failing to critically examine evidence placed before the court.j.The learned magistrate erred by passing a sentence which was manifestly harsh and excessive in the circumstances, in any event.

10. However, the respondent opposed the appeal vide grounds of opposition dated April 14, 2023 which states that: -a.That the learned magistrate properly convicted the appellant on the main count of shop breaking and committing a felony contrary to section 306 (a) of the Penal Code after carefully analysing the evidence on record.b.That the prosecution proved its case against the appellant to the required standard of beyond reasonable doubt.c.That the sentence that was meted out by the trial court was legal.d.That the appellant’s appeal lacks merit and should accordingly be dismissed.

11. The appeal was disposed of by way of written submissions. The appellant in his submissions filed on March 6, 2023 and seems to have abandoned the appeal on conviction submitting that he is only appealing against the sentence. That, in criminal case No 2312 of 2018 he was convicted on one count of shop breaking and one count of stealing and was sentenced to serve a term of four years on each count to run consecutively. That he was also sentenced to serve a term of seven (7) years’ imprisonment and prays that the sentences be ordered to run concurrently.

12. He further submitted that the trial court failed to consider his mitigation and reiterated that the sentence imposed does not serve the objectives of sentencing under paragraph 4. 1 of the Judiciary Sentencing Policy Guidelines and therefore a lesser sentence is called for. Further that the time he spent in remand was not considered when the sentence was meted out and prayed the court give him a lenient definite sentence under article 50 (2) (p) (q) of the Constitution of Kenya.

13. However, the respondent vide submissions dated April 13, 2023 argued that the prosecution had proved its case beyond reasonable doubt. That, some of the stolen phones were found in the appellant’s possession and he did not have a reasonable explanation for the same. Further, that the appellant’s defence did not shake the prosecution’s evidence.

14. That section 306 (a) of the Penal Code provides for imprisonment for seven years for the offence the appellant was convicted of and section 26 of the Code guides the court on sentencing and gives the court discretion to impose a shorter period than prescribed save for where a mandatory minimum sentence is expressly provided for.

15. Further, paragraph 7. 18 of the Sentencing Policy Guidelines encourages the use of non-custodial sentences except where the objectives of sentencing cannot be achieved, while paragraph 7. 19 list factors the court should consider when deciding whether to imposing a custodial or non-custodial sentence and, that the court should consider mitigating and aggravating circumstances which include whether there is a previous conviction particularly where there is a pattern of repeat offending.

16. That, in the present case, the learned trial magistrate took into consideration the fact that the appellant is a repeat offender having been previously convicted and sentenced to ten (10) years’ imprisonment for a similar offence, which he is still serving. That the trial court properly sentenced the appellant and therefore the appeal should be dismissed and/or sentenced upheld.

17. I have considered the evidence adduced in total and note that, the role of the first appellant court as well articulated in the case of Okeno v Republic (1972) EA 32, is to re-evaluate the evidence afresh and arrive at its own conclusion, noting that it did not benefit from the demeanour of the witnesses.

18. In the aforesaid case, the court stated as follows: -“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R 1975) EA 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala v R[1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that, the trial court has had the advantage of hearing and seeing the witnesses”.

19. Be that, the appellant was convicted and sentenced under an offence brought under section 306 (a) of the Penal Code that provides that: -Any person who—(a)breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or is guilty of a felony and is liable to imprisonment for seven years.

20. Pursuant to the aforesaid, the prosecution was bound to prove inter alia that, the complainant’s shop was broken into and the items listed in the charge sheet stolen. That it is the appellant who committed the offence. Having evaluated the evidence adduced, I find that the complainant testified that he found the iron sheets of the shop cut and the thieves gained access through the gap created. The investigating officer PC Komen produced copies of invoices and receipts as plaintiff exhibits 18 (a), (b) and (c) in proof of purchase of the stolen phones.

21. Furthermore, the recovered phones produced as prosecution exhibits 3 (a) to(c), 12 (a) to (f), five chargers produced as exhibits 7 (a) to (e) were all identified by the complainant as among the stolen goods. Indeed, the appellant is not claiming ownership thereof. Therefore, there is adequate evidence that the complainant shop was broken into and the items listed in the charge stolen.

22. The question is whether it is the appellant who committed the offence. The prosecution case is that; the appellant was arrested three (3) weeks after the offence with some of the stolen phones. He did not lead any evidence to rebut the same instead, he chose to adduce evidence on his arrest without rebutting the evidence of the visit to his house and recovery of the stolen phones and chargers. He did not even cross examine the witnesses on that evidence therefore the defence is a mere denial and baseless. I find and hold there is sufficient evidence to sustain the conviction.

23. As regards the sentence the law provides a maximum of seven (7) years for the offence. He was sentenced to serve seven (7) years, with the learned trial magistrate justifying the sentence by noting that the appellant is a repeat offender and troublesome while in prison and therefore deserved the sentence.

24. Indeed, the sentence meted out is lawful and legal. Further I have established that, the appellant is serving three other previous custodial sentences in addition to the sentence herein. Two thereof were imposed on October 17, 2018, for four (4) years respectively and the other on February 4, 2018, for escape from lawful custody.

25. These previous sentences and the offence that they relate to indicates the appellant is a serial and dangerous offender that should be kept away from the society, the sentence of seven (7) years was deserved. However, since he was already on a prolonged sentence and the latter was to run consecutive to the already existing sentences a maximum sentence would be punitive.

26. In that case I am inclined to interfere with the sentence and set aside the sentence of seven (7) years and substitute with a sentence of five (5) years imprisonment. The appellant will not benefit from the period he was in custody while on trial as he was serving a lawful custodial sentence. The five (5) years sentence herein will be served from October 13, 2022 but without being subjected to the remission.

27. It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 3RD DAY OF JULY, 2023. GRACE L NZIOKAJUDGEIn the presence of;The appellant, in court virtuallyMr. Atika for the respondentMs. Ogutu court assistant