[2022] KEHC 14768 (KLR)

Njagi v Republic (Criminal Appeal E033 of 2022) [2022] KEHC 14768 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14768 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E033 of 2022

LM Njuguna, J

November 2, 2022

Between

Hillary Mwenda Njagi

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. E. Wasike - SRM in Siakago PM Criminal Case No. 216 of 2020 delivered on 29. 10. 2020)

Judgment

1. The appellant herein and his co-accused Dennis Murimi Ireri, but who is not an appellant in this case, were charged with two counts as follows;Count IHouse breaking contrary to Section 304(1)(b) and stealing contrary to Section 279(b) of the Penal Code. The particulars were that on the March 12, 2020 at around 16. 30 hours in Siakago area in Mbeere North Sub-County within Embu County jointly with another not before court broke and entered a building used as a dwelling house of Sabastian Machaki and stole therein two phones make Oppo A37 worth Kshs. 18,000/= and Neon Ray worth Kshs. 4,000/= and one 6 kgs gas cylinder worth Kshs. 5,000/= the property of Sabastian Machaki.

Alternative ChargeHandling stolen goods Contrary to Section 322(1)(2) of the Penal Code. Hillary Mwenda Njagi, on the April 11, 2020 at Siakago area in Mbeere North Sub-County within Embu County, otherwise than in the course of stealing dishonestly retained one 6 kgs gas cylinder knowing or having reason to believe it to be stolen.Count IIHouse breaking contrary to Section 304(1)(b) and stealing contrary to Section 279(b) of the Penal code. The particulars were that on the April 2, 2020 at around 16oo hours in Siakago area in Mbeere North Sub-County within Embu County, jointly with another not before court broke and entered a building used as a dwelling house of Sabastian Machaki and stole from therein, one grinder worth Kshs. 11,000/=, one 13 kgs cylinder worth Kshs. 11,000/=, one wrist watch worth Kshs. 1,500/=, one torch worth Kshs. 1,200/= and one jacket worth Kshs. 3,000/= and Kshs. 670/= cash money, the property of Sabastian Machaki.

Alternative ChargeHandling stolen goods Contrary to Section 322(1)(2) of the Penal Code. The particulars being that on the 31. 04. 2020 at Siakago area in Mbeere North Sub-County, otherwise than in the course of stealing, dishonestly retained one grinder machine and one wrist watch knowing or having reason to believe them to be stolen. 2. This alternative charge relate to Dennis Murimi Ireri, the co-accused to the appellant.

3. In support of the charge, the prosecution called three witnesses and at the close of the prosecution’s case, they were both placed on their defence but they chose to remain silent.

4. In its judgment delivered on the October 26, 2020, the court found both the appellant and his co-accused guilty of the two main counts and sentenced them to 18 months imprisonment in each count which sentence was ordered to run concurrently.

5. The appellant herein being dissatisfied with the sentence has appealed to this court vide the petition of appeal dated February 3, 2022 wherein he has set out the following grounds; 1)The learned magistrate erred in law and fact by ordering the sentences to run consecutively without considering the provisions of Section 333(2) of the Criminal Procedure Code.

2)The learned magistrate erred in law and fact by imposing a long sentence without considering that the appellant was a first offender and that he was qualified to benefit from the least severe punishment

3)The learned magistrate erred in law and fact by imposing the sentence without taking into account other methods of punishing the offender.

4)The learned magistrate erred in law and fact by ordering the sentences to run consecutively without considering the applicable law.

6. The appeal proceeded by way of written submissions and both parties duly complied with the directions on filing of submissions.

7. The court has considered the said submissions and I have also re-evaluated the evidence as it’s required of this court, along the principles laid out in the case of OkenovsRepublic.

8. Looking at the petition of Appeal, the only issue that the appellant has raised is on how the sentences that were imposed by the trial court are to run. In his submissions, the appellant contends that the sentences were ordered to run consecutively and has urged the court to declare that the sentence do run concurrently. In this regard, I have perused the record of the trial court and the impugned judgment and I note that the learned magistrate ordered that the sentences should run concurrently and not consecutively. The prison authorities must have misapprehended the order given by the trial court vide its judgment when they indicated that the sentences should run consecutively.

9. The other issue that the appellant has raised is premised on Section 333(2) of the Criminal Procedure Code which requires that the court should take into account the time the accused person has spent in custody when sentencing. I have perused the judgment of the trial court and I note that the learned magistrate did not comply with that section.

10. In the circumstances, I do allow that ground of appeal and order that the 181 days that the appellant had spent in custody be considered and be deducted from his sentence.

11. It is so ordered.

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