[2023] KEHC 2579 (KLR)

Ndichu v Republic (Criminal Revision E096 of 2022) [2023] KEHC 2579 (KLR) (28 February 2023) (Ruling)

Neutral citation: [2023] KEHC 2579 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Revision E096 of 2022

RL Korir, J

February 28, 2023

Between

Kennedy Kiruthi Ndichu

Applicant

and

Republic

Respondent

(Being a Revision of the Sentence in Bomet Principal Magistrate’s Court Criminal Case No. 1162 of 2020 by Hon. L. Kiniale, Principal Magistrate, on 28th September 2022)

Ruling

1. This Application was brought through a letter dated November 14, 2022 by the Applicant and filed on November 15, 2022. The application is premised on Articles 165(6) and (7), 50 (1) and (2); section 132 and 362 of the Criminal Procedure Code. The applicant prays for a revision of the sentence of 3 years’ imprisonment imposed by the trial court in Bomet PM Criminal Case No 1162 of 2020.

2. The background of this Application is contained in the trial file which I have perused. The Applicant was charged with the offence of stealing by servant contrary to section 281 of the Penal Code, Cap 63 Laws of Kenya. He was arraigned in court on October 19, 2020 where he pleaded not guilty to the said charge. The matter proceeded to full trial with the Prosecution calling 6 witnesses in support of their case. The Applicant was placed on his defence under section 211 of the Criminal Procedure Code at the close of the Prosecution's case. He elected to give sworn testimony and called no witnesses.

3. The trial court found the Prosecution had proved its case against the Applicant for the offence of stealing by servant contrary to section 281 of the Penal Code and convicted him accordingly. He was then sentenced to serve 3 years imprisonment.

4. Following the above, the applicant now seeks an order for revision of his sentence on the grounds that it was manifestly excessive, punitive and unfairly oppressive considering the facts of the case.

5. In his Application, the applicant stated that the trial court failed to consider all the facts of the case especially that he was drugged and that being a first offender, the appropriate punishment ought to have been a fine as opposed to a custodial sentence. He urged the Court to invoke the provisions of section 364 of the Criminal Procedure Code and consider revising the sentence as prayed.

6. On their part, and when served the Application, the Respondents initially told the court that they would be giving notice to enhance sentence. However, when the matter came up for hearing, they submitted that they had no objection to the said application and left the matter to the Court.

7. I have considered the Application and the trial record as well as the submissions of the parties. It remains for this court to determine whether the application is merited and whether the sentence imposed ought to be revised.

8. TheConstitution of Kenya provides for the rights of an accused person under Article 50 as follows:-(2)Every accused person has the right to a fair trial, which includes the right—(q)If convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

9. Article 165 of theConstitution vests this Court with the appropriate jurisdiction in this case. It states:-(1)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

10. Similarly, section 362 of the Criminal Procedure Code provides: -362. Power of High Court to call for recordsThe High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

11. The law on the powers of the High Court on Revision is premised on section 364 of the Criminal Procedure Code. It provides thus: -1. In the case of a proceeding in a subordinate court, the record of which has been called for or which has been reported for order, or which otherwise comes to its knowledge, the High Court may –a.In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;b.In the case of any other order other than an order of acquittal, alter or reverse the order.2. No order under this section shall be made to the prejudice of an accused person unless he had had an opportunity of being heard either personally or by an advocate in his own defense:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.3. Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.4. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.5. When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

12. Thus, on revision, it is the duty of this Court to review and reconsider in totality the sentence imposed by the trial magistrate and determine whether the same was correct, legal and appropriate.

13. The importance of sentencing in a criminal trial cannot be gainsaid. Sentencing holds a paramount role in the administration of justice and it is axiomatic that it is a reserve of the trial court. In Bernard Kimani Gacheru vs Republic [2002]eKLR, the Court of Appeal held thus: -'It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.'

14. This Court appreciates that it is only the trial court which enjoys the privilege of seeing and examining witnesses in a trial on a first-hand basis thereby allowing the trial court to exercise its discretion without undue interference. In light of this, I find guidance in the case ofR vs Mohamedali Jamal (1948) 15 EACA 126, where the Court of Appeal for Eastern Africa held: -'It is well established that an appellate Court should not interfere with the discretion exercised by a trial Judge or Magistrate except in such cases where it appears that in assessing sentence the Judge has acted upon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive.'

15. From the facts of this case, the Applicant who was employed as a driver for e-trade Company was charged and convicted of the offence of stealing by servant. In his defense, he stated that he was drugged by someone near Shell Fuel station in Bomet and found himself in Thika where the vehicle was later discovered by his employer with some goods missing. The said goods were worth Kes 457,603. 82/=.

16. During the sentence hearing, the trial court took note of the fact that the Applicant was a first offender, that he had not been paid for 8 months and that his family had suffered during the said time. It was on this basis that the sentence of 3 years’ imprisonment was meted.

17. Thus, sentencing in Kenya is governed by the Judiciary Sentencing Policy Guidelines of 2016. The objectives of sentencing are well laid out under paragraph 4. 1 at page 15 as follows: -'Sentences are imposed to meet the following objectives:1. Retribution: To punish the offender for his/her criminal conduct in a just manner.2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5. Community protection: To protect the community by incapacitating the offender.6. Denunciation: To communicate the community’s condemnation of the criminal conduct.'

18. In passing a sentence, a court of law must bear the above objectives in mind and ensure that any sentence imposed meets any or all of the above objectives. At the same time, the courts should consider mitigating circumstances and balance the rights of a convicted person with those of the victim as well as the nature of the offence.

19. The Sentencing Guidelines set out by the Supreme Court of Kenya in the case of Francis Karioko Muruatetu & Another vs Republic, Petition No 15 of 2015, with respect to the offence of murder were applicable in considering sentences in other offences in the first instance. In that case, the Supreme Court listed mitigating factors including: -'[71](a)Age of the offender;(b)Being a first offender;(c)Whether the offender pleaded guilty;(d)Character and record of the offender;(e)Commission of the offence in response to gender-based violence;(f)Remorsefulness of the offender;(g)The possibility of reform and social re-adaptation of the offender;(h)Any other factor that the Court considers relevant.

20. Section 281 of the Penal Code upon which the Applicant was charged provides:-281. Stealing by clerks and servants'If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years.'

21. The above provision employs the terms ‘is liable to’. This phrase was adequately explained by the East African Court of Appeal in Opoya vs Uganda (1967) EA 752 at page 754 paragraph B as follows:-'It seems to us beyond argument the words 'shall be liable to' do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it'

22. It is therefore implicit from the above that the punishment under section 281 is not mandatory in nature and that there is an avenue for consideration of a lesser sentence. Since section 281 does not provide for a minimum sentence, and also does not give the option of a fine, the applicable legal provision in this regard is section 26 of the Penal Code.

23. Section 26 allows courts to either sentence a convicted person to a shorter period other than that which is prescribed by the law or impose a fine instead of a term of imprisonment. However, the latter option only applies where the law provides for a minimum sentence of imprisonment. It provides as follows: -26. Imprisonment1. A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable.2. Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term.3. A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:Provided that—i.Where the law concerned provides for a minimum sentence of imprisonment,a fine shall not be substituted for imprisonment;

24. It follows then that the legal principle in sentencing is such that where the law provides for a fine or imprisonment or both, a convicted person has a right to be given an option of a fine unless the court has established good reasons not to.

25. Mativo J in Arthur Muya Muriuki vs Republic (2015) eKLR in applying the above principles held thus:-'Section 26 of the Penal Code which expressly authorizes the court to sentence the offender to a shorter term than the maximum provided by any written law and further authorizes the court to pass a sentence or a fine in addition to or in substitution for imprisonment except where the law provides for a minimum sentence of imprisonment.I have carefully considered the facts of this case, the severity of the offence, the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, the mitigating and aggravating factors and the scar the incidence left in the life of the victim. I have also considered the purpose of sentencing and the principles of sentencing under the common law.I note that the appellant was sentenced to a prison term of 4 years. He had served eight months by the time he was admitted to bail. I have considered the nature of the offence, the principles of sentencing listed above and I hereby reduce the said sentence to one year and six months. I therefore order that the appellant serves the remaining term of his sentence.I however give the appellant the option of a fine and order that alternatively, the appellant can be released upon payment of a fine of Kshs 25,000/=.'

26. In the same manner, I consider the circumstances of this case and the provisions under sections 281 and 26 of the Penal Code alongside other relevant evidence in this case. In considering other relevant evidence, I find guidance from the Supreme Court case of Francis Muruatetu ( supra) where the court held thus: -'The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed…It is without a doubt that the court ought to take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at the appropriate sentence.'

27. On Record is a Sentence Review Report filed on December 7, 2022. I have reviewed the same and noted that the Applicant is a 39-year-old man, married with two children, the older one being a Form 3 student and in need of school fees. The report also indicates that the Applicant has been of good character and does not abuse any drugs or substances. Further, being a first offender and a family man, there is an opportunity for resettlement and proper reintegration upon serving his sentence. The report also indicates that the applicant was remorseful and regretted the offence and that his former employer was no longer interested in the matter since he (the applicant) had not been paid for 8 months and was now serving a custodial sentence. It was recommended that a non-custodial sentence would benefit him and his family as he had since reformed in the three months he had been serving the sentence.

28. Having addressed my mind to the circumstances of this case, the Sentence Review Report and the applicable legal provisions it is my finding that this case is ripe for reconsideration and review of the sentence imposed. In the premise, the Application for review is merited and is hereby allowed.

29. I uphold the sentence of three years’ imprisonment. However, I give the Applicant the option of a fine of Kshs 50,000/=. I order that the applicant be released upon payment of a fine of Kshs 50,000/= or in default, to continue serving the 3-year imprisonment imposed by the trial court.

CONCKRULING DELIVERED, DATED AND SIGNED AT BOMET THIS 28THDAY OF FEBRUARY, 2023R. LAGAT-KORIRJUDGERuling delivered in the presence ofthe ApplicantMr. Njeru for the State,Siele (Court Assistant).