[2024] KEHC 13154 (KLR)

Okuto alias Denoh v Republic (Criminal Appeal E026 of 2024) [2024] KEHC 13154 (KLR) (30 October 2024) (Judgment)

Neutral citation: [2024] KEHC 13154 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E026 of 2024

KW Kiarie, J

October 30, 2024

Between

Dennis Onyango Okuto alias Denoh

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case NO. E094 of 2024 of the Principal Magistrate’s Court at Ndhiwa by Hon. B. W. Murangasia–Resident Magistrate)

Judgment

1. Dennis Onyango Okuto, alias Denoh, the appellant herein, was convicted after pleading guilty to burglary and stealing contrary to section 304 (2) of the Penal Code.

2. The appellant and others not before the court committed the offence on the night of the 8th and the 9th day of January 2024 at Ratanga Primary School Teachers Quarters in Ndhiwa sub County within Homa Bay County. They broke into Sylvarius Lwambo’s dwelling house and stole assorted clothes and a laptop bag valued at Kshs. 5,600/=, the property of the said Sylvarius Lwambo.

3. The appellant was also charged with a second count of handling stolen property. It was found that on the 27th day of March 2024, he had a laptop bag, four shirts, a pair of long trousers, and a vest, knowing or having reasons to believe they were stolen property.

4. In count one, the appellant was sentenced to five years imprisonment, and in count two, to three years imprisonment. The sentences were ordered to run concurrently. He was aggrieved and filed this appeal against the sentence. His prayer was that the sentences run concurrently.

5. The appeal was opposed by the state. It was argued that it lacks merits.

6. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence before the lower court afresh and drawn my conclusions, bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.

7. Section 348 of the Criminal Procedure Code provides as follows:No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.

8. The prosecution erroneously duplicated the two counts. What was indicated as the second count ought to be an alternative to count one. Upon conviction in count one, the court should have made no findings on the alternative charge. This was prejudicial to the appellant.

9. I, therefore, quash the conviction in count two and set aside the sentence imposed therein.

10. An appellate court would interfere only where there exists, to a sufficient extent, circumstances entitling it to do so. Nelson vs Republic [1970] E.A. 599 as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.

11. The appellant had several other convictions for similar offences. Section 304 (2) of the Penal Code provides as follows:If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.

12. Given the previous record, the sentence meted out cannot described as excessive. I will not, therefore, interfere with the sentence.

13. The appeal has succeeded, as observed hereinabove.

DELIVERED AND SIGNED AT HOMA BAY THIS 30THDAY OF OCTOBER 2024KIARIE WAWERU KIARIEJUDGE