[2022] KEHC 14536 (KLR)

Ndungu v Republic (Criminal Revision E099 of 2022) [2022] KEHC 14536 (KLR) (Crim) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14536 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E099 of 2022

LN Mutende, J

October 19, 2022

Between

Joseph Kamau Ndungu

Applicant

and

Republic

Respondent

Ruling

1. Joseph Kamau Ndungu, the Applicant, was charged with the offence of Office Breaking and committing a felony contrary to Section 306 (a) of thePenal Code. Particulars of the offence were that on the 3rd day of April 2022 at about 14:20 hours at Nairobi Chapel Church along Ngong Road in Kibra Sub-County within Nairobi County, broke and entered a building namely the office (container) of Nairobi Chapel Church and committed therein a felony, namely, theft and did steal from therein one laptop make HP Pavillion, Hard Disk Drive – 2TB, Type “C” USB Dock, 8 GB Flash Disc, Android phone charger, a pair of earphones, a small umbrella and a laptop bag all valued at Ksh. 110,200/- (One Hundred and Ten Thousand and Two Hundred Kenyan shillings only) the property of Rodgers Koome Kinyua.

2. The applicant was convicted on his own plea of guilty, and sentenced to serve 3½ years imprisonment.

3. The applicant has approached this court through an application dated 30th May, 2022 where he basically seeks review on grounds that: the court failed to consider his mitigating factors; he is asthmatic and has peptic ulcers such that continued incarceration will jeopardise his health; and he is a sole bread winner of a young family and ailing mother.

4. In an affidavit deposed by the applicant, he avers that he is remorseful for the offence committed and has affixed abode in Kiambu County.

5. In oral submissions, the applicant urged that he has a wife and a four (4) years old child; and, that he would abide with conditions set as he has reformed.

6. The Respondent through, Ms. Kibathi, Prosecution Counsel opposed the application. She submitted that the conviction was proper and legal and the court lacks jurisdiction to interfere with the sentence. That the applicant has not challenged the legality of the sentence. Further, that the order was final and the proper jurisdiction would have been by way of an appeal against the sentence. But, she qualified the statement by arguing that should the court be inclined to consider the application, it could consider that the period provided by Statute was seven (7) years imprisonment.

7. The jurisdiction of this court to review the sentence is provided for under Section 362 of the Criminal Procedure Code (CPC) that provides thus:The 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.

8. Section 364 (1) (a) (b) of the CPC provides as follows:(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 orders, 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 otherorder other than an order of acquittal, alter or reverse the order.

9. It is worth noting that revisionary power is limited to review of glaring errors, omissions, and an illegality on the face of the record.

10. This court must also guard against interfering with the sentence unless it is manifestly excessive or if the court proceeded on wrong principles or where the court considered irrelevant factors. This was succinctly pointed out in the case ofOgolla s/o Owourvs. Republic (1954) EACA 270 where the Court of Appeal stated that:“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

11. The appellant contravened the law as provided Section 306 ofthe Penal Code that provides thus: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 (b) breaks out of the same having committed any felony thein

12. The applicant was sentenced to serve three and half (3½) years imprisonment. Prior to sentencing the applicant, the subordinate court gave him the opportunity to mitigate as provided by Section 216 of the CPC; and, the court also sought a Pre- Sentence Report. The Probation Officer noted that the applicant/offender did not have social support system within his reach which could deter him from involvement in future crime. His wife also doubted whether he could adhere to the conditions and that a non-custodial sentence would be a challenge. He was found unsuitable for a non-custodial sentence. The court therefore acted within the law.

13. The applicant was sentenced on 16th May, 2022 and he filed the instant application on 30th May, 2022, fourteen (14) days later. To date he has served only 1 month in prison. The purpose of sentence includes deterring an offender from re-offending; and also rehabilitating him. There having been nothing to suggest that the applicant has reformed, he should be rehabilitated by prison so that he is ultimately integrated back into the society.

14. The upshot of the above is that the application lacks merit. Accordingly, it is dismissed.

15. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 19TH DAY OF OCTOBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Odour for the RespondentCourt Assistant – Mutai