[2022] KEHC 13802 (KLR)

Otieno v Republic (Criminal Appeal E014 of 2022) [2022] KEHC 13802 (KLR) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13802 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E014 of 2022

RE Aburili, J

October 14, 2022

Between

Jared Otieno

Appellant

and

Republic

Respondent

(An Appeal against sentence from sentence passed in the Principal Magistrate’s court at Bondo in Criminal Case No. E1817 of 2021 by Hon. J.P. Nandi, Principal Magistrate on 14. 12. 2021)

Judgment

1. The appellant in this appeal is Jared Otieno. He was convicted on his own plea of guilty and sentenced to serve ten (10) years imprisonment for the offence of Arson contrary to section 332 (2) of the Penal Code. It was alleged that on December 12, 2021 at around 2330 hours at Kokwiri Sub location in Rarieda Sub County, willfully and unlawfully he set fire on a dwelling house, the property of Michael Omondi Onyango, valued at Kshs. 103,500/=.

2. The appellant was sentenced to serve 10 years after he mitigated and the court also considered that he was a first offender.

3. Aggrieved by the conviction and sentence, the appellant filed this appeal upon obtaining leave of court to file the appeal out of time on 9/3/2022 vide HCCR Miscellaneous Application No E028 of 2022, Jared Otieno v Republic

4. In this Petition of appeal, he claimes that:1. The trial court failed to observe that the investigations tendered was shoddy.2. That the trial court failed to consider that the Prosecution evidence was full of contradictions hence unsafe to base a conviction.3. That the trial court failed to consider that the sentence imposed was against the weight of the evidence adduced.4. That the trial court failed to appreciate that the sentence imposed was unconstitutional due to its mandatory nature.5. That we be served with certified copies of the trial court record to enable him file more grounds of appeal.

5. The appellant urged this court to allow his appeal in its entirety.

6. The appeal was admitted to hearing on 23/9/2022 and the matter fixed for directions on October 13, 2022. The appellant who appeared in person on the latter date informed the court that he wished to withdraw the challenge on conviction and only challenge sentence and seek for its reduction. He stated that his family who depended on him were suffering.

7. The court proceeded and allowed the withdrawal of the appeal against conviction.

8. Opposing the appeal against sentence imposed In response, Mr. Kakoi Senior Principal Prosecution Counsel submitted, opposing the challenge on sentence and stated that 10 years prison term is lenient as the maximum is life imprisonment. Further, that there were no mitigating circumstances.

Determination 9. I have considered the appeal and submissions on sentence as imposed on the appellant. The issue for determination is whether this court should interfere with sentence imposed on the appellant. Before I resolve that issue, I have examined the Plea of guilty as taken by the appellant and Iam asatisfied that it is an unequivocal Plea that meets the requirements of section 207 of the Criminal Procedure Code and as restated in AdanvRepublic[1973] EA 445 and followed in BayavRepublic[1984]KLR 657.

10. The trial magistrate before accepting the Plea of guilty explained to the appellant the substance of the charge, informed him of his right to legal representation and his entitlement to apply for legal aid to the National Legal Aid Board and the appellant stated that he understood.

11. The charge was read to him in the Dholuo language which he stated that he understood and he stated that it is true upon which a Plea of guilty was entered and after facts were read out to him again in Dholuo language, the appellant admitted them to be correct upon which he was convicted on his own plea of guilt.

12. The Prosecution stated that they had no previous records of conviction and the appellant mitigated praying for forgiveness as the complainant insults him over his deceased mother. He promised not to repeat the offence.

13. The court noted the mitigation and the fact that the appellant was a first offender and sentenced him to serve 10 years imprisonment, while explaining to him his right of appeal.

14. The facts as stated to court disclosed the offence of arson which is willfully and unlawfully setting on fire the property of another person.

15. Accordingly, I find no fault with that plea of guilty.

16. Back to the main question of whether this court should interfere with the sentence imposed on the appellant, the law is now settled that the appropriate sentence to be meted out in a particular case is basically an exercise in the discretion by a trial court. An appellate court is only entitled to interfere with the exercise of such discretion where it is shown that in arriving at the sentence, the trial court took into account an irrelevant factor or that it failed to take into account a relevant factor or failed to appreciate the nature of the evidence or that looked at dispassionately, the sentence is harsh and excessive as asserted by the appellant in this appeal. (SeeJames Gichuru NdunguvRepublic (2010) eKLR (Court of Appeal).

17. As stated above, the trial court considered the mitigation and the fact that the appellant herein was a first offender and the court exercised its judicial discretion and sentenced the appellant accordingly.

18. Upon conviction, punishment for arson is up to life imprisonment.

19. The appellant was sentenced to serve ten years imprisonment. I find that the trial Magistrate exercised his discretion properly. This court was not told what irrelevant factor was taken into account or what relevant factor was ignored by the trial court in arriving at the sentence imposed.

20. If anything, the appellant’s grounds of appeal are as they appear to have been a cut and paste of a totally different case and circumstances as there was no contradiction in the evidence or facts read out to court leading to the appellant’s conviction.

21. As stated by the Court of Appeal in James GichuruvRepublic (supra) case, it may well be that if I had been in the Judge’s position, I might have given a slightly lesser sentence than that given by the magistrate but that is not the basis on which the court can interfere.

22. Having said all the above, I find and hold that the sentence imposed by the trial court was lawful and lenient and that there is nothing this court can do about it. I also find that the said sentence was merited in all the circumstances of the case as there is absolutely no justification for unlawfully and willfully setting one’s property on fire.

23. Accordingly, this appeal fails and it is hereby dismissed.

24. File closed.

25. Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 14TH DAY OF OCTOBER 2022R.E. ABURILIJUDGE