[2023] KEHC 26957 (KLR)

Republic v Ombona (Criminal Revision E175 of 2022) [2023] KEHC 26957 (KLR) (Crim) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26957 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E175 of 2022

LN Mutende, J

December 14, 2023

Between

Republic

Applicant

and

Anthony Maina Ombona

Respondent

Ruling

1. Anthony Maina Ombona, the Respondent, was charged in Kibera Chief Magistrate’s Court Criminal Case No. 5685 of 2014 for the offence of Stealing by Agent contrary to section 268(1) of thePenal Code. Particulars being that on diverse dates between 5th June,2013 and 13th March,2014 at Equity bank Eastleigh branch in Nairobi he stole Ksh 1,224,000/= received on account of Kinyago Community Based Organization.

2. Further, he faced five (5) counts of Cheating contrary to section 315 of the Penal Code. Particulars being that on 11th December, 2013, by means of fraudulent trick he induced Naomi Wambui Nyaguthii and Zaituni Wangechi to sign an application for transfer of Ksh 150,000/= from Equity Bank Eastleigh Branch Account No. 0840xxxxxxxxx in the name of Naomi and others to his personal account by cheating the said Naomi that he was authorized to sponsor Ms. Astrid to receive the money. Similarly, it was alleged that between the period 20th March,2014 and 7th September,2013, he tricked Christine Nasimiyu and Anne Trizah Njeri and received Ksh 300,000/=, Ksh 50,000/= and Ksh 540,000/= respectively, through account funds transfer to account No. 0350190861824 belonging to Kinyago United Self- Help Group.

3. Having been taken through full trial, the respondent was found guilty of the count of Stealing, four (4) counts of Cheating and placed under probation supervision for a period of three (3) years.

4. Through a Notice of Motion dated 29th July, 2022, the Applicant/Republic seeks an order of the court that will revise, review and set aside the sentence meted out against the respondent.

5. The second prayer is for enhancement of the sentence on grounds that the sentence does not reflect the objective of the offence and lacks reasonable proportionality between the sentence and the circumstances of the offence.

6. That the sentence is contrary to the Judiciary Policy Sentencing Guidelines requiring retribution and deterrence of the offender, and, the convict stands to benefit from his crimes since he has not been incarcerated, fined or ordered to pay back the money.

7. Further, that the sentence is against public policy and sets a dangerous precedent by setting a criminal free to enjoy their loot. That the magistrate did not consider the plight of the victims and the responsibility and trust placed on the Respondent.

8. That there was need to restore funds to the victims. Lastly that the sentence was unjust, and, manifestly lenient.

9. The application is supported by an affidavit deposed by Ms. Zaphida Chege, learned Prosecution Counsel, where she deposes that the total amount stolen was Ksh 1,224,000/= and it belonged to a vulnerable community based organization in Kinyago slums and was meant to benefit vulnerable women whom he cheated. The respondent was their chairman when he committed the offence and the sentence was disturbingly inappropriate considering the nature, weight and circumstances of the offence.

10. Pursuant to directions given, the application was to be disposed through written submissions but the respondent did not file submissions. In the same vein there was no response to the application. It was urged by the applicant that the court’s discretion must be exercised judiciously but was applied in a manner that was detrimental to the persons who have suffered harm and injury. That this court has jurisdiction to set aside the sentence if it finds that it was too lenient or harsh. It is argued here that the magistrate applied the wrong principles on the law of sentencing.

11. Reference was made to the Judiciary Sentencing Guidelines and the case of Francis Kariokor Muruatetu & Another vs Republic (2017) eklr where the Supreme Court held that the objectives of the sentencing guidelines must be considered in totality.

12. The record of the lower court shows that the respondent on being heard on mitigation, stated that he was a sole bread winner and he prayed for a non-custodial sentence. The Prosecution stated that he was a first offender. A pre-sentence report filed recommended that respondent could benefit from a probation order.

13. Further, the respondent was stated to be the founder of the CBO and was applauded for its impact on the community. That he mentored the youth in the community. He was stated to have had close relations with the complainants and therefore a non- custodial sentence was recommended to mend their relationship. The complainants also vouched for his release so as to revive the momentum of the Community Based Organization.

14. This court has supervisory jurisdiction over orders and proceedings of a subordinate court. This is pursuant to section 362 and 364 of the Criminal Procedure Codewhich has been invoked in this application. In exercising revisional jurisdiction this court determines whether the trial court committed any illegality impropriety or failed to consider the correct principles of sentencing.

15. The general power of the superior court to set aside a sentence was considered in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 where the Court of Appeal stated thus:“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka -vs- R. (1989 KLR 306)”

16. In the case of Bernard Kimani Gacheru vs. Republic[2002] eKLR the Court of Appeal stated that:“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.”

17. On the 1st Count, the respondent contravened the provisions of section 268(1)of the Penal Code that provide thus: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.

18. Section 275 of the Penal Code which provides for the general punishment for theft enacts that:Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.

19. Section 315 of the Penal Codeon the other hand provides that:Any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years.

20. There are various objectives of sentencing which are also captured in the Judiciary Sentencing Policy Guidelines (guidelines), namely;Deterrence - Where the offender is punished for the crime so that the offender and public can appreciate the consequences of committing a crime. In this respect the offender is incarcerated; Incapacitation - where the individual is taken away or removed from the society by being incarcerated so as to protect the society; Retribution - Where the offender is punished by his freedom being taken away so as to instinctively repay the crime committed; Rehabilitation and Restitution - Where the offender is given a chance to change and become a productive citizen. The offender in the circumstances restores or repairs the damage inflicted on the victim;

21. The sentence provided for offences committed is custodial, of up to three (3) years imprisonment for each count, but this does not take away the court’s discretion to mete out any other sentencing option. The discretion must be exercised judiciously and within the law. It is the contention of the applicant that the presentencing report did not adhere to the requirements of the law.

22. The contention of the applicant is that the sentence meted out is against public policy and a bad precedent as it did not consider the plight of the victims. A probation order is a non-custodial sentence or sentencing option to imprisonment.

23. Prior to the court meting out sentence it sought a pre-sentence report. The report filed by a Probation Officer captured the views of the victims and the community. The respondent was described as a philanthropist who supports many orphaned youths with shelter. That the CBO funds were sourced by the respondent and there was misconception of how the funds were to be used. That according to the complainants the funds should have been paid to them while the CBO members and the respondent had a contrary arrangement. Two of the members opined that incarcerating the respondent would not benefit them as all they wanted was to be paid money. In the result, a probation sentence was recommended so that the misperceptions would be put in perspective to revive the momentum at the CBO.

24. The offences committed were not felonies, therefore, the decision to opt for a non-custodial sentence was available and not outside the law. The court did not commit any illegality.

25. It has been stated now and again that an appellate court can only interfere with the trial court’s discretion in sentencing where sentence was manifestly excessive or where it considered an irrelevant factor or applied the wrong principle.

26. The argument by the applicant is that the sentence was too lenient such that it did not meet the objective of sentencing. That notwithstanding the sentence was within the law. Revisional jurisdiction can only be exercised to amend illegalities, improprieties, and irregularities. The question of the victims not being compensated is not a ground for revision as it was not part of the trial court record. Nothing deterred the prosecution from addressing the trial court, by presenting evidence under section 216 of the Criminal Procedure Code that would help it pass a different sentence. Further, nothing would deter the victims being restored to whence they were by seeking leave of the court to institute civil proceedings against the respondent for compensation of the harm occasioned.

27. The upshot of the above is that the Applicant’s application for revision is unmerited. Accordingly, it is dismissed.

28. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 14TH DAY OF DECEMBER, 2023. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Ms. Kibathi for Applicant/ODPP.Mr. Achillah RespondentCourt Assistant – Mutai/Kathomi