[2022] KEHC 15013 (KLR)

Natembea v Republic (Criminal Appeal E021 of 2022) [2022] KEHC 15013 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15013 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E021 of 2022

LM Njuguna, J

November 2, 2022

Between

Evans Simiyu Natembea

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. .E. Wasike - PM in Siakago SPM Criminal Case No. 786 of 2021 delivered on 8. 12. 2021)

Judgment

1. The appellant was charged with the offence of house breaking contrary to section 304(1) and stealing contrary to section 279(b) of thePenal Code, the particulars being that on theNovember 7, 2021 at Mazalelo area in Mbeti south location, broke and entered the dwelling house of Ismael Wanjala Wesonga with intent to steal therein and did steal house hold goods worth 20,800/=.

2. He also faced an alternative count of handling stolen goods contrary to section 322 (2) of thePenal Code, the particulars being that on the November 19, 2021 at Old Stadium Municipality Location in Embu county other than in the course of stealing dishonestly retained house hold goods valued at kshs 20,800/= the property of Ismael Wanjala Wesonga knowing or having reason to believe them to be stolen goods or unlawfully obtained.

3. He was arraigned in court on the November 10, 2021 and he pleaded guilty to the main charge. He was convicted on his own plea of guilty and was sentenced to a term of three (3) years imprisonment in each count, which sentences were ordered to run concurrently.

4. Being dissatisfied with the sentence, he moved this court vide the petition of appeal dated the February 1, 2022 wherein he has listed four grounds of appeal but which essentially translates to only one ground.i.The learned magistrate erred in both law and facts by imposing a harsh sentence.

5. The appeal was disposed off by way of written submissions which the parties filed following directions that were given by this court.

6. In his submissions the appellant has contended that though the trial court in its judgment ordered the sentences to run concurrently, the records held by the prison authorities indicate that the sentences are to run consecutively.

7. I have perused the record of the trial court and the judgment that was delivered by the learned magistrate and it is clear that the court ordered the sentences to run concurrently and not consecutively.

8. On whether the sentence was harsh and/or excessive, the appellant herein was charged with offences under section 279(b) and 304(1) of the Penal code. The sentences provided for imprisonment for three (3) years and seven (7) years respectively. The appellant herein pleaded guilty to both counts and he was convicted on his own plea of guilty and sentenced accordingly.

9. While sentencing the appellant the court noted that it considered the offence and how it was executed. It also noted that the offence is serious and that it calls for some deterrence.

10. The legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola s/o AwouravsRginum(1954) 21270 as follows;“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v Republic (1950) 18 EACA 147;“It is evident that the judge has acted upon some wrong principle or overlooked some material factor”.To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case; R v Shershewky, (1912) CCA 28 TLR 364.

11. I have keenly read the submissions by the appellant and he has not submitted on this ground of appeal. He has not shown how the learned trial magistrate erred in principle in sentencing him as he did.

12. In view of the foregoing, I find and hold that the appeal has no merit and the same is hereby dismissed.

13. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE................................................for the Appellant…………………………………….for the Respondent