[2023] KEHC 25084 (KLR)

Nyika v Republic (Criminal Appeal E111 of 2022) [2023] KEHC 25084 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25084 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E111 of 2022

TM Matheka, J

November 10, 2023

Between

Moses Kioko Nyika

Appellant

and

Republic

Respondent

(Appeal from the conviction and sentence in Makueni CMCRC E372/2021 Hon. Sagero SRM)

Judgment

1. The appellant was charged with House Breaking Contrary to section 304 and Stealing Contrary to section 279 (b) of the Penal Code. That on the 1st day of November, 2021 at around 1120hrs at Shimo Estate, Wote Location, Makueni Sub-county within Makueni County, broke and entered the dwelling house of Valentine Mutheu with intent to steal therein and did steal from there 1. HP Laptop 2. Wrist watch 3. One mobile phone make phonplus all valued at Kshs. 27,000/= the property of Valentine Mutheu.

2. In alternative he was charged with Handling Stolen Goods Contrary to section 322 (2) of the Penal Code. That on the 8th day of November, 2021 at around 2100hrs at Slaughter Estate, Wote Location, Makueni Sub-County within Makueni County, otherwise than the course of stealing, dishonestly undertook the retention of 1. HP Laptop 2. Wrist Watch 3. One Mobile phone make phonplus having reason to believe them to be stolen goods.

3. In Count 2 he was charged with Burglary, Contrary to section 304(2) and Stealing Contrary to section 279(b) of the Penal Code. That on the 28th day of September, 2021 at around 2000hrs at Calosci Estate, Wote Location, Makueni Sub-county within Makueni County, broke and entered the dwelling house of Stellamaris Muthiani with intent to steal therein and did steal from therein 1. One 6kg progas Cylinder 2. Sub-hoofer make premier 3. One laptop bag black in colour all valued at Kshs. 10,000/= the property of Stellamaris Muthiani.

4. In the alternative he was charged with Handling Stolen Goods Contrary to section 322(2) of the Penal Code. That on the 8th day of November 2021 at around 2100hrs at Slaughter Estate, Wote Location, Makueni Sub county within Makueni County, otherwise than the course of stealing , dishonestly undertook the retention of 1. One -6kg pro-gas 2. subhoofer make premier 3. One laptop bag black in colour having reason to believe them to be stolen goods.

5. The appellant was also charged with House Breaking Contrary to Section 304 and Stealing Contrary to section 279 (b) of the Penal Code. That on the 1st day of November, 2021 at around 1120hrs at Shimo Estate, Wote Location, Makueni Sub-county within Makueni County, broke and entered the dwelling house of Valentine Mutheu with intent to steal therein and did steal from there 1. HP Laptop 2. Wrist watch 3. One mobile phone make phonplus 4. White cap all valued at Kshs. 27,200/= the property of Valentine Mutheu.

6. In the alternative he was charged with Handling Stolen Goods Contrary to section 322 (2) of the Penal Code. That on 8th November 2021 at 2100hrs at Slaughter Estate Wote Location in Makueni Subcounty within Makueni County otherwise than in the course of stealing dishonestly undertook the retention of 1. HP Lapton 2. Wrist watch 3. One Mobile phone make Phonplus 4. White Cap having reasons to believe them to be stolen goods.

7. He was charged with House breaking Contrary to section 304 and Stealing Contrary to section 279 (b) of the Penal Code. That on the night of 1st November, 2021 at around 1120hrs at Shimo Estate Wote location Makueni Sub county within Makueni County broke and entered the dwelling house of Valentine Mutheu with intend to steal there in and did steal there in one -grey trouser valued at Kshs. 800/= the property of Alex Ndinga.

8. In the alternative he was charged with Handling Stolen Goods Contrary to section 322 (2) of the Penal Code. That on the night of 8th November, 2021 at around 2100hrs at Slaughter Estate Wote Location Makueni County otherwise than in the course of stealing dishonestly undertook the retention of one-grey trouser having reason to believe it to be stolen good.

9. In addition he was charged with Burglary Contrary to section 304(2) and Stealing Contrary to section 279 (b) of the Penal Code. That on the 28th day of September, 2021 at around 2000hrs at Calosci Estate, Wote Location Makueni Subcounty within Makueni County broke and entered the dwelling house of Stellamaris Muthiani with intent to steal therein and did steal from therein 1. one-6kg progas cylinder 2. Sub-hoover make premier 3. One black laptop bag all valued at kshs. 10,000/= the property of Stellamaris Muthiani.

10. In the alternative he was charged with Handling Stolen Goods Contrary to section 322(2) of the Penal Code. That on the night of 8th November, 2021 at around 2100hrs at Slaughter Estate, Wote Location Makueni Subcounty within Makueni County otherwise than in the course of stealing dishonestly undertook the retention of 1. One-6kg progas 2. Subhoover make premier 3. one black laptop bag having reason to believe them to be stolen goods.

11. Vide a judgement delivered on 13th June 2021 the accused was found guilty and convicted for each of the main counts.

12. The trial court sought a pre-sentence from Probation and After Care Services department (PACS).

13. In mitigation the appellant told the court that he was a bread winner for his brothers and the grandmother - as his mother had deserted the home. He asked for a non-custodial sentence.

14. After considering the pre-sentence report the learned trial court sentenced him to three (3) years imprisonment on each of the main counts the following terms;“three years in jail on each limb”“Sentences to run concurrently. The sentence has been arrived at featuring in the period the accused has been in remand.”

15. The appellant has brought this appeal against the sentence on the following grounds set out in his submissions filed on 19th July 2023 ;i.That he pleaded guilty to the offence.ii.That he humbly prays for an option of a fine to this case.iii.That he prays for the sentence to be reduced to the time already served.iv.That he humbly prays for non-custodial sentence.v.That he would appreciate any other option which deems fit for this offence.

16. At the hearing of the appeal, the appellant told the court that he placed reliance on his submissions but emphasised that he was seeking a non-custodial sentence for the remainder of his sentence.

17. Mr. Tanui for the state submitted that the state was leaving it to this court to determine the appeal subject to the record of the lower court record.

18. I have carefully considered the submissions of the appellant. He asks the court to consider several options with respect to sentence.- that the court would consider to reduce his jail sentence to the minimal/consider a fine/reduce it to a non-custodial sentence/reduce it to the period already served.

19. Hence, the only issue for determination is whether the appellant’s appeal has merit.

20. With respect to the charges - I must point out that the charge sheet is fatally defective for duplicity - having been brought under section 304 and section 279(b) - Each of these sections are stand alone and distinct and the prosecution ought to have brought separate charges - section 304 provides for house breaking and burglary and provides sentence of 7 years imprisonment ; and section 279(b) about stealing from a dwelling house whose sentence is 14 years imprisonment.Hence with respect to the conviction on the main count the same cannot stand - it is quashed and the sentence set aside.

21. However the same facts as set out support the alternative charge of handling stolen property under section 322 (2) of the Penal Code - for which the person found guilty is liable to 14 years imprisonment. In the circumstance the main charges are substituted with the charge of handling stolen property under section 322(2) of the Penal Code - and the sentence is maintained at 3 years imprisonment in each count to run concurrently.

22. Having done that - does the appellant deserve any of the option he has laid out in his submissions?

23. I have noted that the learned trial magistrate took into consideration the period served in remand. Hence I find no reason to interfere with the sentence - considering the number of counts involved.

24. In the end it is my finding that the appeal has no merit and is dismissed.

25. The appellant will serve 3 years’ imprisonment on each count of handling stolen property c/s 322(2) of the Penal Code. Sentences to run concurrently from the date he was sentenced by the subordinate court.

DATED, SIGNED AND DELIVERED THIS 10TH OF NOVEMBER 2023. ……………………………………………….MUMBUA T. MATHEKAJUDGEAppellant - presentFor the State - Kazungu