[2022] KEHC 12033 (KLR)

Odekee & another v Republic (Criminal Appeal E018 & E019 of 2021 (Consolidated)) [2022] KEHC 12033 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12033 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Appeal E018 & E019 of 2021 (Consolidated)

WK Korir, J

May 12, 2022

Between

Hosea Ileyo Odekee

1st Appellant

John Otieno Mudenyo alias Ben Odhiambo Opon

2nd Appellant

and

Republic

Respondent

(Being an appeal from the Judgment of Hon. S. K. Mutai, SPM, delivered on 21/10/2021 in Kapenguria SPM Criminal Case No. 1001 of 2019, R v Hosea Ileyo Odekee & another)

Judgment

1. The appellants, Hosea Ileyo Odekee and John Otieno Mudenyo alias Ben Odhiambo Opon, were charged before the Senior Principal Magistrate’s Court at Kapenguria with the offence of stealing a motor vehicle contrary to section 268 as read with section 278A of the Penal Code. The particulars of the offence were that on August 3, 2019 at Makutano township within West Pokot County, they jointly, with others not before court, stole a motor vehicle make Howo Sinotruck registration number KCE 327M valued at Kshs 3. 5 million, the property of Samuel Losem.

2. The appellants pleaded not guilty to the charge and at the conclusion of the trial they were found guilty and convicted. Subsequently, they were sentenced to serve seven years in prison. They have preferred this appeal against both the conviction and sentence.

3. The appellants’ separate appeals were by consent consolidated on March 28, 2022. In summary, the appellants fault the trial court for convicting them on inconsistent and unreliable prosecution evidence; admitting evidence of a non-expert witness; convicting them without proper identification; and imposing a harsh and excessive sentence.

4. The prosecution called six witnesses at the trial. PW1 Philemon Kipyego Cheruiyot testified that he was employed by PW3 Samuel Losem to drive lorry registration number KCE 327M make Sinotruck Howo. PW1 stated that on August 3, 2019 he sold sand at Maili Saba and in the evening at around 8. 00pm he parked the motor vehicle at Cheptulel petrol station. According to PW1, the watchman on duty was PW2 Joel Kemoi. The next morning, he went to pick the lorry but he did not find it where he had parked it. PW1 called his boss and informed him about the loss of the lorry. The witness further stated that he had one key for the lorry and his boss had another. He also stated that they reported the matter to the police and he returned the key to his boss. PW1 told the court that the lorry had not been recovered by the time he was testifying. On cross-examination by the 2nd appellant, PW1 stated that he did not know him and had never seen him.

5. PW2 testified that he worked at Cheptulel petrol station as a watchman between June, 2019 and September, 2019. He stated that on August 3, 2019 he was on duty when at around 8. 00pm PW1 went and parked a tipper lorry make Howo. PW2 testified that PW1 locked the lorry and left with the key. It was PW2’s evidence that at around 10. 00pm, a shopkeeper went to his house with the 1st appellant and requested for parking space. His testimony was that the 1st appellant left at around 1. 30am. According to PW2, he went outside and entered one of the vehicles at the petrol station and that is when the 1st appellant arrived on a motorbike and knocked the car window. He lost consciousness and only came to inside a room at 8. 00am after he was woken up by PW1. It was then that he realized that the lorry was missing. They called the owner of the lorry who instructed them to report the matter to the police. He further stated that he never saw the 1st appellant again until he was called to Kapenguria Police Station where he identified him. He also said that he saw the 1st appellant before he lost his memory.

6. When cross-examined by the 1st appellant, PW2 stated that he saw him on the material night twice as he asked for parking space for a lorry that was to come from Kitale. Further, that he lost consciousness after the 1st appellant gave him something. In response to questions put to him by the 2nd appellant, PW2 stated that the 2nd appellant was not present on the material day and that he was seeing him for the first time in court.

7. PW3 testified that he is a director of Chepunyo Building Contractors Ltd and identified the company’s certificate of incorporation. He stated that the company was the registered owner of motor vehicle registration number KCE 327M make Sinotruck tipper. His testimony was that the lorry was stolen on August 3, 2019 from where it had been parked by PW1 at Cheptulel Petrol Station. He said that he saw the vehicle parked at 8. 00pm at the petrol station when he had gone to fuel his car. He recalled that on August 4, 2019 PW1 called him and told him that the lorry was missing and he rushed to the petrol station and confirmed that it was indeed missing. He identified a certified copy of the logbook of the said lorry. He further stated that he reported the matter to the police. He confirmed PW1’s evidence that the lorry had two keys and he had one and the driver had the other.

8. PW4 Corporal Sabian Odongo testified that on August 4, 2019 they received a report of theft of a motor vehicle from PW3 who was in company of PW1. He stated that the two reported that motor vehicle registration number KCE 327M make Howo Sinotruck was parked on the night of August 3, 2019 by PW1 at Cheptulel filling station within Makutano town but the driver found the same missing on August 4, 2019.

9. PW4 told the court that he immediately started investigations and got information of the suspects who were seen on August 4, 2019 and suspected to have been involved in the theft. With this lead, he obtained the phone numbers of the suspects and got data from Safaricom of two phone numbers namely 0710-xxxxxx and 0719-xxxxxx. He testified that 0710-xxxx44 belonged to one John Otieno Mudenyo and 0799-116298 belonged to Paul Omondi Otiang of national identity card No xxxxxxxx.

10. PW4 testified that national identity card No xxxxxxxx of John Otieno led him to Siaya County while that of Paul led him to Kisumu West. He stated that he was informed by the chief that Paul Omondi Otiang died in 2017. PW4 stated that using the national identity card number of John Otieno he secured a court order which enabled him to access his bank account number No xxxxxxxxxxxx with Equity Bank.

11. PW4 testified that upon accessing John Otieno’s bank account, he noticed that there were transactions done through the Mpesa platform using phone number 0799-xxxxxx belonging to Paul Omondi Otiang between May and October, 2019. He further testified that money was transferred from the same bank account to the 1st appellant through phone number 0742-xxxxxx. PW4 told the court that data from Safaricom in respect of the line of Paul Omondi Otiang showed that there was communication between the 2nd appellant and 1st appellant and the number of Paul Otieno Otiang appears in the bank account of the 2nd appellant and money was transferred to the 1st appellant.

12. PW4 further stated that Safaricom data of August 4, 2019 at 0020 hours showed the line for the 2nd appellant at Makutano-Mathare area and at 0042 hours the same number was at Kapenguria and at 0620 hours the same number was captured at Adungosi at which point it disappeared from the signal. PW4 told the court that his investigation established that the 2nd appellant had crossed to Uganda and that was why the Safaricom data was blank. He also said that phone number 0799-xxxxxx showed transactions by John Otieno Mudenyo despite being registered using the name of Paul Omondi Otiang.

13. PW4 testified that from Safaricom data the signal of 0710-xxxxxx was captured at Adungosi area on August 4, 2019 at 0620 hours. He stated that the same line was at Kapenguria at 0244 hours and that is the time the lorry is suspected to have disappeared. He identified the Safaricom data for mobile phone number 0799-xxxxxx registered in the name of Paul Omondi Otiang and mobile phone number 0710-xxxxxx registered in the name of John Otieno Mudenyo.

14. PW4 also testified that phone number 0799-xxxxxx was used by the 2nd appellant to transfer money to the 1st appellant and the said phone number appears in the 2nd appellant’s bank account number. According to PW4, the transacted funds were from the sale of the stolen motor vehicle. PW4 pointed out that on August 19, 2019 Kshs 5,000/= was transferred from phone number 0799-xxxxxx to phone number 0742-xxxxxx belonging to the 1st Appellant. Further, that on the same date the 1st appellant received Kshs 35,000/= from the 2nd appellant. He identified the statement of the 2nd appellant’s bank account with Equity Bank and also identified the appellants in court.

15. PW4 stated that he looked for the appellants, arrested them and had them charged. PW4 also obtained a certificate of incorporation of Chepunyo Building Contractors Ltd being the registered owner of the stolen lorry, a power of attorney and copies of the national identity cards of the directors of the company. He produced the said documents and the logbook of the lorry as exhibits.

16. PW4 told the court that an identification parade was conducted and PW2 identified the 1st appellant as the person who went to his place of work at the filling station and requested for parking space. PW4 produced the ID parade form as an exhibit.

17. During cross-examination by the 1st appellant, PW4 told the court that Safaricom and Equity Bank data connected the appellants to the theft of the motor vehicle. At this point of the trial the 2nd appellant had appointed counsel. In response to questions put to him by counsel for the 2nd appellant, PW4 stated that there was communication between the appellants before and after the incident.

18. PW5 Daniel Makhulo, a credit manager at the Kapenguria Branch of Equity Bank produced as an exhibit the statement of the 2nd appellant’s bank account.

19. PW6 Douglas Adika, a Safaricom PLC liaison officer based at Nairobi stated that he extracted call logs and subscribers’ details for phone numbers 0758-xxxxxx; 0710-xxxxxx; 0799-xxxxxx; and 0798-xxxxxx for the period 1st July, 2019 to September 12, 2019. He further produced as exhibits call logs for phone numbers 0799-xxxxxx and 0710-xxxxxx respectively registered under the name of Paul Otiang of ID No. 24227591 and John Mudenyo of ID No xxxxxxxx. The witness told the court that the data showed the location of the mobile phones at the material time.

20. When the appellants were placed on their defence, the 1st appellant testified as DW1 and stated that he is a businessman at Makutano where he sells potatoes and onions. He denied the charges against him stating that nothing was recovered from him. The 1st appellant told the court that he was at home on August 3, 2019 which was his worship day since he is a SDA adherent. His evidence was that he was arrested later and escorted to Kapenguria Police Station.

21. Cross-examined by the prosecutor, the 1st appellant stated that PW2 framed him and that he never led the police to where the motor vehicle was taken. The 1st appellant admitted that the 2nd appellant had indeed sent him money.

22. The 2nd appellant who testified as DW2 stated That he is in the business of buying and selling onions. He further testified that on August 3, 2019 he was at Makutano to buy onions when his client Paul Omondi Otiang sent him money through Mpesa. The 2nd appellant accepted having an account with Equity Bank. He denied the charges and summed them as false. According to him, he was arrested for sending money on August 1, 2019 to his co-appellant which was for buying onions. He confirmed having been in touch with the 1st appellant.

23. Both appellants filed their independent submissions on March 28, 2022. In brief, the 1st appellant submitted that as was held in the case of DPP v Woolmington [1953] UKHL, the prosecution ought to have proved the case against him beyond reasonable doubt. He submitted that none of the prosecution witnesses identified him or gave evidence that placed him at the scene of crime. On this he cited the case of Wamunga v Republic [1989] KLR 424. He relied on the case of Simiyu & another v Republic [2005] 1 KLR 192 to submit that if PW2 had recognized him on the night of the theft, he should have given his name to the police.

24. It was the 1st appellant’s submission that during the trial, the law and procedure were violated hence he did not get a fair trial. Still on this point, the 1st appellant also took issue with the evidence of PW6 and submitted that the admission of his evidence was not in accordance with the law. Further, that the evidence of PW6 was taken in contravention of section 48 of the Evidence Act. He relied on the case of Mutonyi v Republic [1982] KLR 203 where the court reiterated the criteria for admitting expert evidence.

25. The 1st appellant also submitted that the charge sheet was defective as the stated value of the stolen item was different from that stated by PW3 in his testimony. The 1st appellant argued that the production of the copy of the logbook of the motor vehicle violated section 84 of the Evidence Act. In support of the assertion, he cited the case of Langat v Republic, Nakuru CR App No 159 of 2004.

26. The 1st appellant relied on the decision in Abdalla Wendo v Republic[1953] 20 EACA 166 in support of his assertion that the trial court erred in relying on the evidence of a single witness. He therefore urged this court to allow his appeal and quash his conviction and sentence.

27. On his part, the 2nd appellant commenced his submissions by reiterating his innocence and stressing that the prosecution failed to prove its case beyond reasonable doubt. He argued that he was not identified by any of the prosecution witnesses and placed reliance on the cases of Karani v Republic [1985] KLR 290 and DPP v Woolmington [1953] UKHL.

28. On the issue of sentencing, the 2nd appellant invoked article 50(2)(p) & (q) of theConstitution and the case of Francis Opondo v Republic [2017] eKLR to submit that he ought to have been given the least severe sentence. He urged this court to allow his appeal or in the alternative grant him a non-custodial sentence.

29. The respondent through submissions filed on March 24, 2022 stated that the prosecution had proved its case and urged this court to dismiss the appeals and uphold the conviction and sentence by the trial court.

30. The pleadings and submissions filed by the parties in this case disclose that the issues for the determination of this court are whether the prosecution proved its case against any or both of the appellants and whether the appellants have established grounds warranting this court’s interference with the trial court’s sentencing discretion.

31. This being a first appeal, the duty placed upon this court is that stated by the Court of Appeal in Thuo v Republic [2022] KECA 461 (KLR) as follows:"24. This being a first appeal, this court is required to conduct a retrial, entailing an exhaustive appraisal and re-evaluation of the evidence. The court is not merely called upon to scrutinize the evidence to see whether it supports the findings and conclusions of the trial court. It must weigh conflicting evidence, make its own findings and draw its own independent conclusion. See Okeno v Republic [1972] EA 32 and Kiilu & another v Republic [2005] KLR 174. 25. In re-appraising the evidence, the court will however bear in mind and take account of the fact that it does not have the advantage that the trial court had of hearing and seeing witnesses as they testified. As a general rule therefore, the court will not interfere with the findings and conclusions of the trial court unless it is satisfied that they are based on no evidence or on a misapprehension of the evidence or that the trial court is demonstrably shown to have acted on wrong principle in reaching the findings it did. See Joseph Kariuki Ndungu & another v Republic [2010] eKLR."

32. The universal theme in the appellants’ appeals is that the prosecution failed to prove the case against them beyond reasonable doubt. The question therefore is whether the prosecution discharged its duty of proving that the complainant’s motor vehicle was stolen by the appellants. The prosecution case is one based on the chain of events leading to the disappearance of motor vehicle registration number KCE 327M. The evidence is both circumstantial and direct.

33. The ingredients of the offence of stealing are provided by section 268 of the Penal Code. The relevant part of that provision states:"268. (1)A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.(2)A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say –(a)an intent permanently to deprive the general or special owner of the thing of it;(b)an intent to use the thing as a pledge or security;(c)an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;(d)an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;(e)…"

34. The case against the appellants was mainly hinged on circumstantial evidence. With regard to circumstantial evidence, the Court of Appeal in the case of Musili Tulo v Republic [2014] eKLR stated thus:“…circumstantial evidence is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”

35. The court, nevertheless, warned that:“…the chain must be so complete that it establishes the culpability of the appellant, and no one else, without any reasonable doubt…If there is a weak link in that chain, the whole chain must collapse.”

36. In Abanga alias Onyango v Republic Cr Appeal No 32 of 1990 (UR), as cited in Kimeu v Republic [2022] KECA 440 (KLR), the Court of Appeal set out the test to applied in assessing the evidentiary weight of circumstantial evidence as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

37. The fact that a motor vehicle belonging to PW3’s company was stolen on the material night is not in dispute. Even if the appellants had attempted to challenge the theft of the lorry, their attempt would not have borne fruits because the evidence of PW1, PW2 and PW3 leaves no doubt that the lorry was parked at a petrol station within Makutano on the evening of August 3, 2019 and was found missing the next morning.

38. As to the involvement of the appellants in the theft of the lorry, PW2 testified that at around 10. 00pm, the 1st appellant in the company of another went and requested him for parking space for a lorry that was coming from Kitale. PW2 further testified that the 1st appellant went back to him later in the night when he was inside another vehicle undertaking his duties and gave him something which made him unconscious until morning when he was woken up only to discover that the lorry was missing.

39. PW4 who was the investigating officer gave a narration of the events that led him to arrest and charge the two appellants. He established a chain of communication between the appellants on August 3, 2019 as well as their locations. The 2nd appellant in his defence explained that he is in the business of buying and selling onions and he paid the 1st appellant Kshs 32,000/- for onions. He further testified that he came to buy onions from the 1st appellant at Makutano on August 3, 2019. The 2nd appellant also told the court that Paul Omondi Otiang was his customer and sent him money through Mpesa. The 1st appellant in his defence testified that he was in the business of selling potatoes and onions.

40. The defence of the 2nd appellant was, however, dismantled by PW4 who told the trial court that the statement of the 2nd appellant’s account with Equity Bank Ltd showed various transactions that led him to believe that the 2nd appellant was transacting using the line of Paul Omondi Otiang’ who was deceased. Further, that there was transfer of funds between the appellants. According to him, the funds transferred by the 2nd appellant using a sim card registered in the name of the deceased Paul Omondi Otiang’ were the proceeds of the theft. The 2nd appellant’s claim the Paul Omondi Otiang’ was his customer is unbelievable because the 2nd appellant could not have been transacting business in 2019 with a man who passed away in 2017. The evidence of PW4 also points to him as the person who was using the telephone line of the deceased Paul Omondi Otiang.

41. PW4 also testified that the movements of the 2nd appellant as per the Safaricom data showed that on August 4, 2019 at 12. 20am he was at Makutano-Mathare area and at 12. 42am he was at Kapenguria. According to PW4 the same number was captured at Adungosi at 6. 20am before it disappeared from the signal. PW4’s opinion that the 2nd appellant had gone to Uganda is confirmed by the fact that page 9 of the 2nd appellant’s bank statement captures a transaction showing that the 2nd appellant’s account received funds on August 9, 2019 through a deposit made in Uganda-Wadegeya. This is a reasonably large sum of Kshs 214,534. 73 whose source was not explained. PW4’s evidence that the lorry was not recovered because it was sold in Uganda has merit considering that the deposit was made a few days after the 2nd appellant had crossed into Uganda. The 2nd appellant did not give any evidence to suggest that his trade in onions was cross-border in nature. Furthermore, the 2nd appellant’s claim that he came to Makutano on August 3, 2019 to buy onions from the 1st appellant was contradicted by the 1st appellant who testified that he did not leave his house on that day as it was his rest day as a Seventh-Day Adventist Church adherent.

42. There is evidence on record that an identification parade was held upon the arrest of the 1st appellant and PW2 managed to identify him. This puts the 1st appellant at the scene of crime. It was the evidence of PW2 that the 1st appellant gave him something before he blacked out. Indeed, the investigating officer told the court that PW2 told him that the 1st appellant gave him something to drink before he became unconscious.

43. In this case, there was direct and circumstantial evidence linking the appellants to the theft of the complainant’s motor vehicle. The evidence adduced by the prosecution in this case establishes an irresistible link or chain that points to the appellants as the perpetrators of the crime. The evidence adduced by the appellants did not break the chain that linked them to the crime.

44. The 1st appellant took issue with the evidence of PW6. He submitted that the same was not admitted in compliance with section 48 of the Evidence Act. Section 48 of the Evidence Act, cap 80 provides for the admission of the evidence of experts as follows:"48. Opinions of experts(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts."

45. The 1st appellant does not state how the admission of the evidence of PW6 violated the cited provision. In any event, PW6 was not an expert witness as defined by section 48 of the Evidence Act. His role was simply to produce and authenticate the documents that were meant to support the prosecution case, which he did. There is nothing to show that any provision of part III of the Evidence Act which governs the production of documentary evidence was violated. PW5 and PW6 did not give opinions as experts but simply produced documents as the makers of those documents. The 1st appellant’s case on this ground therefore fails.

46. In conclusion, I am therefore not in any doubt that the prosecution discharged its duty as to the burden of proof in this matter. The appellants were therefore properly convicted by the trial court. The appeal of each of the appellants in regard to their conviction is therefore rejected and dismissed.

47. On the question of the sentence imposed, it is observed that the appellants were charged with the offence of stealing a motor vehicle. The punishment for the offence as provided by section 278A of thePenal Code is a maximum of seven years’ imprisonment. The trial court imposed the maximum sentence of seven years’ imprisonment against each appellant. It is only in specified circumstances that an appellate court can interfere with the sentence imposed by a trial court. The Court of Appeal spoke to the issue in Bernard Kimani Gacheru v Republic, Cr App No 188 of 2000, as cited in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, as follows:“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.”

48. The appellants have argued that the sentence is harsh and excessive. The Kenyan Judiciary issued extensive Sentencing Guidelines through Gazette Notice No 2970 of April 29, 2016. At page 1876, paragraph 23. 9 guidelines are provided on how a trial court should determine the custodial sentence to be imposed. The Guidelines state that:“23. 9In view of aggravating and mitigating circumstances, the determination of the term of the custodial sentence shall be as follows:1. Starting point in determining the term of the custodial sentence: The first step is for the court to establish the custodial sentence set out in the statute for that particular offence. To enable the court to factor in mitigating and aggravating circumstances/factors, the starting point shall be fifty percent of the maximum custodial sentence provided by statute for that particular offence. Having a standard starting point is geared towards actualizing the uniformity/impartiality/consistency and accountability/transparency principles set out in paragraphs 3. 2 and 3. 3 of these guidelines. A starting point of fifty percent provides a scale for the determination of a higher or lower sentence in light of mitigating or aggravating circumstances.2. Presence of mitigating circumstances: The effect of mitigating circumstances/factors is to lessen the term of the custodial sentence. The court shall consider the mitigating circumstances/factors and deduct some time off the fifty percent of the custodial sentence provided by statute for that particular offence. Where the statute has set out a minimum term, the deduction of time in custody cannot go below the minimum sentence.3. Presence of aggravating circumstances: The effect of aggravating circumstances/factors is to increase the term of the custodial sentence. The court shall consider the aggravating circumstances/factors and add a length of time to the fifty percent of the sentence provided by statute for that particular offence. The court cannot impose a sentence that goes beyond the custodial term provided by law.4. Presence of both aggravating and mitigating circumstances: Where both exist, the court should weigh the aggravating and mitigating circumstances and where mitigating circumstances outweigh the aggravating ones, then the court should proceed as if there is a single mitigating circumstance. Where aggravating circumstances outweigh the mitigating circumstances, then the court should proceed as if there is a single aggravating circumstance.”

49. The Guidelines also provide aggravating and mitigating factors at paragraphs 23. 7 and 23. 8 respectively as follows:“Aggravating circumstances23. 7Aggravating circumstances warrant a stiffer penalty than would be ordinarily imposed in their absence. They include:1. Use of a weapon to frighten or injure a victim; the more dangerous the weapon, the higher the culpability.2. Multiple victims.3. Grave impact on national security.4. Serious physical or psychological effect on the victim.5. Continued assault or repeated assaults on the same victim.6. Commission of the offence in a gang or group.7. Targeting of vulnerable groups such as children, elderly persons and persons with disability.8. Previous conviction(s), particularly where a pattern of repeat offending is disclosed.9. Intricate planning of an offence.10. An intention to commit a more serious offence than was actually committed.11. High level of profit from the offence.12. An attempt to conceal or dispose of evidence.13. Flagrant use of violence or damage to person or property in the carrying out of an offence.14. Abuse of a position of trust and authority.15. Use of grossly inhuman and degrading means in the commission of an offence.16. Targeting those working in the public sector or providing a service to the public.17. Commission of offences motivated by ethnic, racial and gender bias.Mitigating circumstances23. 8Mitigating circumstances warrant a more lenient penalty than would be ordinarily imposed in their absence. They include:1. A great degree of provocation.2. Commitment to repairing the harm caused by the offender’s conduct as evidenced by actions such as compensation, reconciliation and restitution prior to conviction.3. Negligible harm or damage caused.4. Mental illness or impaired functioning of the mind.5. Age, where it affects the responsibility of the individual offender.6. Playing of a minor role in the offence.7. Being a first offender.8. Remorsefulness.9. Commission of a crime in response to gender-based violence.10. Pleading guilty at the earliest opportunity and cooperation with the prosecution and the police.”

50. Using the formula provided in the Guidelines, half the statutory sentence of seven years would be three and a half years. The only discernable aggravating factor was the high level of profit from the offence. This was balanced out by the mitigating factors that the appellants were, notwithstanding the fact that they had other pending court cases, first offenders and remorseful. Imposing the maximum sentence in the circumstances was therefore not only harsh and excessive but also went against the sentencing guidelines. As such, the appellants have made out a case for the intervention by this court on the sentence passed by the trial court.

51. A perusal of the trial court record shows that the appellants were arrested in November, 2019 and were in custody throughout the trial until they were convicted and sentenced on October 21, 2021. They have been in jail for over six months from the time they were sentenced. The total period spent in custody is about two years and eight months. Section 333(2) of the Criminal Procedure Code, cap 75 required the trial court to take into account the period the appellants had spent in custody prior to their sentencing. Had they been sentenced to three years in prison, and considering that they were entitled to remission of sentence, if they were of good character, then they would have served and completed their prison sentence by now. In the circumstances, their appeal on sentence is allowed and the sentence of imprisonment for seven years is set aside and substituted with an order that the sentence is reduced to the period already served. Each appellant is thus set at liberty unless otherwise lawfully held.

52. In view of my findings above, the final orders of this court are as follows:(a)Each appellant’s appeal against conviction is without merit and is hereby dismissed;(b)Each appellant’s appeal against sentence is allowed and the imprisonment of seven years is set aside and substituted with an order reducing the sentence to the period already served; and(c)Each appellant is set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12TH DAY OF MAY, 2022. W Korir,Judge of the High Court