[2022] KEHC 15355 (KLR)

Republic v Njoroge (Anti-Corruption and Economic Crimes Appeal 6 of 2019) [2022] KEHC 15355 (KLR) (Anti-Corruption and Economic Crimes) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15355 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal 6 of 2019

EN Maina, J

November 10, 2022

Between

Republic

Appellant

and

Perminus Kamau Njoroge

Respondent

(Being an appeal against the Sentence in Milimani Anti- Corruption Case No. 15 of 2012 Republic v Perminus Kamau Njoroge {F. Kombo S.P.M)

Judgment

1. The respondent was charged with the offence of fraudulent acquisition of public property contrary to section 45(1) (a) as read with section 48 of the Anti-Corruption and Economic Crimes Act. On February 18, 2019 he was convicted and sentenced to a fine of Kshs. 600,000 in default one-year imprisonment.

2. The Director of Public Prosecutions being dissatisfied with the sentence has filed this appeal through a Petition of Appeal dated March 1, 2019. The grounds for the petition are: -a.That the learned Magistrate erred in law in failing to consider section 48 (1) of the Anti-Corruption and Economic Crimes Act.b.The learned magistrate erred in law and fact by making a finding that the respondent pays a fine of sh. 600,000 in default serve one-year imprisonment yet the money he was found guilty of unlawfully acquiring is sh. 12,890,000. c.The learned magistrate erred in law and fact by imposing a manifestly lenient sentence given the circumstances of the case.d.That the learned Magistrate erred in law and fact by failing to impose upon the respondent a sentence that was commensurate to the amount of money that the respondent was found to acquire illegally.e.That the learned magistrate erred in law by failing to consider, when sentencing the respondent, the magnitude of loss the ministry of education suffered because of the action of the appellant.”

3. This court directed that the appeal be heard through written submissions. The appellant complied by filing submissions dated November 6, 2022. However, despite being informed that he had a right to legal representation the Respondent did not file any submissions until November 4, 2022.

Submissions of the Appellant. 4. Briefly the Appellant states that the sentence meted upon the Respondent was not commensurate to the offence he had committed. That the trial court did not consider the provisions of section 48(1) of the Anti-Corruption and Economic Crimes Act hence the sentence was manifestly lenient. Counsel contended that the law provides for a fine not exceeding Kshs. 1,000,000 or to imprisonment for a term not exceeding 10 years or both and an additional mandatory fine of double the amount of benefit or loss which in this case was Kshs. 11,139,270. Counsel therefore urged the court to allow the appeal and enhance the sentence.

Submissions of the Respondent 5. The respondent opposed the appeal vide the written submissions filed on November 4, 2022. It is his contention that the appeal is a contravention of his rights under article 50(2) (o) of the Constitution; that the Appellant filed the appeal despite having already charged the Respondents in another case ACC 13 of 2014; that further, the appeal is an abuse of court process by virtue of being sub-judice. He cited section 6 of the Civil Procedure Act and contended that on October 19, 2022 the trial court inquired why this appeal was revived 3 years after it was filed. He contended that the delay was in breach of his right to fair trial.

6. The Respondent contends further that the prosecution did not prove its case beyond reasonable doubt. That they did not prove that he stole public funds. He reiterated that the appeal is an abuse of the court process and urged this court to dismiss it.

Analysis and determination 7. The Appeal is brought pursuant to section 354(3)(b) of the Criminal Procedure Code which states:“354. Powers of the High Court(3)The court may then if it considers that there is no sufficient ground for interfering, dismiss the appeal or may-(a)…(b)in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence.”

8. The Respondent was convicted of the charge of fraudulent acquisition of public property contrary to section 45(1) (a) as read withsection 48 of the Anti-Corruption and Economic Crimes Act. On February 18, 2019, he was sentenced to a fine of Kshs. 600,000 in default to serve 12 months’ imprisonment. As at the date of this Judgment, the Respondent had served the sentence.

9. I have considered the submissions filed herein by the Respondent and in my view, they are not relevant to this appeal, being that he has raised issues, which ideally he should have raised if he had filed a cross appeal. Secondly the Civil Procedure Rules do not apply to criminal proceedings and the issue of res judicata does not arise. More importantly this is an appeal against sentence only but not against conviction. For those reasons I shall restrict myself to the issues before me.

10. Section 48 of the Anti - Corruption and Economic Crimes Act provides:“48. Penalty for offence under this Part(1)A person convicted of an offence under this Part shall be liable to—a.a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both; andb.an additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss.(2)The mandatory fine referred to in subsection (1)(b) shall be determined as follows—a.the mandatory fine shall be equal to two times the amount of the benefit or loss described in subsection (1)(b);b.if the conduct that constituted the offence resulted in both a benefit and loss described in subsection (1)(b), the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss”

11. Section 354(3)(b) of the Criminal Procedure Code vests this court with jurisdiction to interfere with the sentence imposed by the trial court. However, it is now well settled that the court can only do so within certain principles as sentencing is in the discretion of that court. In the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR held as follows:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. 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 states is shown to exist.”

12. Similarly, in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] eKLR the Court of Appeal stated: -“57. In Francis Wambugu v Babu Owino & others, SC Petition No 15 of 2018, on the issue of an appellate court entertaining an appeal founded on exercise of discretion of the trial court, it was stated:“[76] In determining therefore an issue based on the exercise of a discretion, as has been observed, a court can only be faulted if the use of the discretionary power was based on a whim, and that it can be established that the court did not consider the prevailing circumstances and take into account what needed to be considered, or considered what ought not to have been considered. To infringe upon this discretionary power, would be tantamount to a judicial review of the decision of another court’s decision. This is an exercise which this court, and indeed every other court, should refrain from engaging in as it would be considered, or indeed viewed as, an interference in another court’s judicial independence and exercise of discretion.”

13. I have carefully perused the record of the trial court and noted that prior to imposing the sentence the court applied its mind to the principles that it was required to. The trial magistrate considered the respondent’s plea in mitigation and his antecedents, and stated as follows:-“While I have found that he fraudulently acquired the Kshs. 11,279,170/- in the Judgment, I also did note that there was the appearance that others were involved. In this case, it would not be clear how the amount lost was shared and what the actual benefit to the accused was. In these circumstances, I do not think section 48(1) (b) of the ACECA should apply to him. I, therefore, sentence him under section 48(1) (a) only.”

14. In my view, the appellant has not demonstrated that in arriving at the sentence, the trial court exercised its discretion wrongly, applied the wrong principles, or that the sentence is manifestly lenient. The trial court did consider the penalty under both section 48(1)(a) and section 48(1)(b) and rendered its findings thereon. The trial magistrate gave a reasonable explanation for not imposing the mandatory sentence; and in my view he was entitled to do so in the circumstances. In the premises I find no sufficient reasons for me to interfere with the manner in which he exercised his discretion. The appeal is therefore dismissed in its entirety.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10THDAY OF NOVEMBER 2022E N MAINAJUDGE