[2023] KEHC 25085 (KLR)

Mwema v Republic (Criminal Appeal E045 of 2022) [2023] KEHC 25085 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25085 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E045 of 2022

TM Matheka, J

November 10, 2023

Between

Samuel Wambua Mwema

Appellant

and

Republic

Respondent

(From the original conviction and sentence of Hon. B.N Ireri (SPM) in Makindu Senior Principal Magistrate’s Court Criminal Case No. E088 of 2022 delivered on 17th February 2022)

Judgment

1. Samuel Wambua Mwema the appellant was charged with the offence of Stock Theft contrary to section 278 of the Penal Code. The particulars of the offence were that on the 31st day of January 2022 at Masongaleni Village in Kibwezi Sub-County within Makueni County, he stole one she-goat valued at Ksh 5,000/= the property of Susan Munee Mavithi.

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 31st day of January 2022 at Mitunguni area in Kibwezi Sub-County, the appellant otherwise than in the cause of stealing, dishonestly retained one she-goat having reason to believe it to be stolen property.

3. The appellant pleaded guilty.

4. The prosecution presented the following facts; that on February 1, 2022 at 5. 30am, the complainant, Susan Munee, was woken up by a neighbour and told to check if her goat had been stolen. She confirmed that her black and white goat was missing. She looked for it in vain and reported at Machinery Police Post. On February 8, 2022, she was woken again and informed that a suspect who had stolen the goat had been arrested. She proceeded to the police post where she found the accused person and the goat which she identified as hers and the suspect was charged.

5. The prosecutor produced the photographs of the goat as exhibit no. 1.

6. The appellant pleaded guilty to the facts. He was convicted on his own plea of guilt.

7. The prosecution told the court that he was a first offender. In mitigation the appellant sought forgiveness and the court’s leniency stating “…sina mzazi wala mtu wa kunisaidia na sikuwa na chakula. Nilikuwa na shida sana maana nyumbani kwetu watu hawanithamini…”

8. A presentence report was provided by the probation Officer Makindu. Upon its consideration the court tasted“I have read the probation report which shows that the accused person as a menace in the community and to his immediate family. Therefor a non-custodial sentence is not appropriate. the accused is there for sentenced to 7 years’ imprisonment”

9. Aggrieved by that decision, the appellant filed his appeal on the following grounds;a.That the prosecution case is based on twisted hearsay and no proper investigation was conducted to prove the allegations.b.That the trial court erred in law and fact by failing to conduct a holistic scrutiny of the whole evidence on record to base its conviction and sentence.c.That the trial court erred by admitting and overseeing a prosecution case which lacked merit to warrant or sustain conviction.d.That the trial court erred in law and fact by failing to give his defence adequate considerations.

10. The parties elected to canvass the appeal through written submissions. Accordingly, they filed their respective submissions.

11. In his undated hand written submissions, the appellant argued the appeal in a manner to suggest that he was only attacking the sentence and not the conviction. It was his view that the sentence meted against him was not proportionate to the circumstances of the offence and that the learned trail court had not taken time to consider the guiding principles with regard sentencing. He cited the principles with regard to mitigating factors applicable in a re-hearing sentence as set out in Francis Karioko Muruatetu to be; age of the offender, being a first offender, whether the offender pleaded guilty, character and record of the offender, remorsefulness of the offender and the possibility of reform and social re-adaptation of the offender.

12. He argued that in his case is a young first offender who pleaded guilty and is remorseful. That he is ready to reform and be re-adapted to the society. That the time spent in custody has made him to rethink his ways. That he has learnt his lessons and is unlikely to commit another offence if released. He says that the other objectives of sentencing which include punishment, isolation, retribution rehabilitation and deterrence have been achieved in his case. ; That he has now come to this court seeking for leniency and favorable terms in line with the principles of mercy as a child of law. He prays for adjustment of the sentence to a lenient term or the option of fine.

13. The State opposed the appeal through prosecution counsel Lucas Tanui. He submitted under section 348 of CPC, the appellant can only appeal on the sentence when the court finds that the plea was unequivocal. He submitted that the plea was unequivocal and the appellant understood the charges.

14. He submitted that the court sentenced the appellant to 7 years based on the facts produced and the pre-sentence report which informed on his character. That a charge of stock theft attracts imprisonment term of up to 14 years hence the sentence was very lenient.

15. It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses.

16. The appellant argued only one issue- on sentence. I will consider te other grounds as abandoned.

17. In this case there were no witnesses. The court only the facts as read by the prosecution, the rest of the record the pre-sentence report and submissions by both sides. The issue for determination is whether there is reason to interfere with the sentence that was meted against the appellant.

18. Section 278 of the Penal Code provides as follows: Stealing stockIf the thing stolen is any of the following things, that is to say, a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, wether, goat or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years.

19. Section 322 provides for Handling stolen goods:(1)A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.(2)A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years.

20. Section 348 of the Criminal Procedure Code statesNo 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."

21. This court while alive to the fact that the sentencing is the purview of the trial court, is aware that it has the power to look at the extent the sentence meted out to an appellant who has pleaded guilty to the.

22. In this case the presentence report indicates that the appellant is the first born (DOB October 6, 1997) in a family of six children. The other five are aged between 20 and 7 years. His follower is married and the others are between class 1 and 5 . Their mother is a casual laborer. Their home a two roomed house is a donation from a well wisher. Between class 1 and class 7 the appellant attended 5 different schools in different locations away from home.

23. From the age of 15 when he dropped out of school he has been fending for himself and has worked selling sugar cane, herding cattle, farm work, chapatti cook, constructions sites, sand harvesting, harvesting and loading stones in a quarry in various places including Kapiti in Konza, Stoney Athi, Kanyausi in Athi River, Embakasi , Kitengela, Syokimau, Sabaki and Lunga Lunga in Kwale .

24. He told the probation officer that the goat he stole belonged to his grandmother and having had no food for days he decided to sell one of her goats.

25. The offender was described as angry, selfish, unthoughtful and violent and since the time he resurfaced home in 2021 after he left home in 2017. The Probation Officer recorded that the appellant was placed on Community Service in 2021 for 18 months for creating disturbance but had not served. It is noteworthy that there was no evidence to support this allegation yet a community service orders sentence is a supervisory sentence that depends on the Probation/ Community Officer and the Court’s supervision of the offender through the workplace supervisor. There was no evidence of any deployment to a CSO workplace, any report from any supervisor.

26. Having looked at all this the trial magistrate sentenced him to 7 years imprisonment despite the fact that the prosecution told the court that he was a first offender and that the goat whose value was said to be Ksh 5,000, belonging to the appellant’s grandmother, was recovered.

27. I have carefully considered the pre-sentence report. It is a social inquiry that should assist the court in arriving at an appropriate sentence. The report confirms the appellant’s mitigation. His life has been very difficult and it is evident that he has had to fend for himself as a child. His attending numerous schools away from school was not analyzed by the court as evidence of possible placement with relatives and friends leaving him feeling rejected. After leaving school he has been working to fend for himself – why would he not be bitter and angry? I would have expected the Probation officer who is the social worker to pick out these red flags and point them out to the court so as to find a way of assisting the young man and his family come to terms with his circumstances. The offender has a mother and siblings. It would be the duty of the Probation officer to deal with the family dynamics.

28. It is my considered view that the appellant’s concerns about the sentence are tenable and the trail court ought to have analyses the report and not just read the conclusion.

29. The goat stolen belonged to his grandmother, it was recovered a whole week after the alleged theft. He had not sold it. He readily pleaded guilty. Guided by the mitigation factors set out in Muruatetu 1 of age of the offender, being a first offender, whether the offender pleaded guilty, character and record of the offender, remorsefulness of the offender and the possibility of reform and social re-adaptation of the offender this case called out for the court to deal with the real problem which was to get the offender rehabilitated within the family. He is the first born. He has one brother and four sisters. His mother is a widow. He can learn responsibility so as to assist the family at home.

30. The appellant has spent about a year and a half in prison. It is my view that he has learnt his lesson and requires rehabilitation and reintegration in the community.

31. Ultimately the appeal succeeds. The sentence of 7 years is set aside.

32. To assist me to arrive at a suitable non-custodial option I order for a Probation Officer’s Report to be availed within 14 days hereof.

DATED SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER 2023………………………………………………MUMBUA T MATHEKAJUDGECA MwiwaAppellant - presentFor State –Kazungu