[2017] KEHC 1497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 64 OF 2016

SAMUEL KIHARA NDEGWA.............APPELLANT

-VERSUS-

REPUBLIC........................................RESPONDENT

(An appeal from the conviction and sentence of the Senior Principal Magistrate’s Court (D. Nyaboke) at Wanguru, Criminal Case No. 288 of 2016 dated 4th November, 2016)

JUDGMENT

1. The appellantsSamuel Kihara Ndegwawas charged before the Senior Principal magistrate’s Court Wanguru Criminal Case No. 288 of 2016 with the offence of Burglary and stealing contrary to Section 304 (2) and 279B of the Penal Code. He pleaded not guilty and after a full trial he was convicted and sentenced to serve three (3) years imprisonment on the first limb while on the second limb he was sentenced to serve seven (7) years in jail. The sentence was ordered run concurrently.

2. The Appellant was dissatisfied with the conviction and sentence an filed this appeal raising the following grounds:

(i) I pleaded not guilty to this charge.

(ii) That the learned magistrate erred in law and facts by convicting and sentencing the appellant while not considering that the evidence adduced by the prosecution witnesses was family based and all arising from a family stage managed grudge hence prejudicial to the appellant.

(iii) That the learned trial magistrate erred in law and fact for failing to find that the particulars of the offence were not proved beyond reasonable doubt. And also not proved beyond reasonable time.

(iv) That the learned trial magistrate and facts while convicting and sentencing the appellant in disregarding the material inconsistences, contradictory and uncollaborated evidence adduced by the prosecution hence occasioning a grave miscarriage of justice to the appellant.

(v) That the learned trial magistrate erred in law and fact for failing to fairly analyze the evidence tendered by the prosecution thereby arriving at an erroneous judgment. There was nothing which the prosecution forwarded before the trial court as an exhibit of the offence. And the dwelling alleged to have been broken was a parent’s dwelling house and also where the appellant resided and there was no evidencing witness that the appellant actually broke the house.

He prays that the appeal be allowed, conviction be quashed and the sentence be set aside.

3. When the appeal came up for directions the Court ordered that the appeal be disposed by way of written submissions.

4. The Appellant filed submissions and served the State. Upon being served, Mr. Omayo prosecution counsel, for the State submitted that he did not wish to oppose the appeal for the reason that the Appellant is the son of the complainant. He stole the items stated in the Charge Sheet all valued at Ksh.22,000/=. The witnesses called were his father, sister and brother. After the trial, the Court asked for a Probation Officer’s Report. The probation officer recommended a non-custodial sentence. The magistrate without indicating why he did not consider the probation officer’s report went ahead to sentence the Appellant and did not give a non-custodial sentence. The Appellant is a student at Kenyatta University and intends to proceed with his education. He urged the Court to consider the Probation Officer’s Report and give a non-custodial sentence.

5. The Appellant urged the Court to give him a chance to continue with his studies.

6. In his submissions filed in Court on 30th October, 2017 the Appellant submitted that he wished to abandon his appeal on conviction and dwell on the aspect of the sentence on the following grounds:

1. (a) That the matter originated from a family misunderstanding. The complainant is my father P.W. 1 and P.W. 2 are my siblings.

That prior to this incident we have had a strained relationship with my dad, and my two siblings which we have since resolved as evident in the proceedings.

(b) That during mitigation I had prayed for pardon and too prayed for a non custodial sentence as I was a student so that I could continue with my studies “I pray for pardon and a non custodial sentence to continue with my studies”. (At page 44 in red).

(c)That the court considered my mitigation and deferred sentencing pending the probation report (at page 44 in red)

I have considered the appeal on the sentence, the submission by the Appellant and by the State. Sentencing is the discretion of the trial magistrate. As a general principle, imprisonment should not be imposed on a first offender except where the offence is particularly grave, aggravated or widespread in an area so that a deterrent sentence is called for. Where such circumstances are non-existent the emphasis in sentencing first offenders ought to be on reformation to arrest the onset of the wayward behavior at an early stage. The Appellant was a first offender and a young man pursuing a course at the University. He had stolen from his own father who in the probation officer’s report tendered before the trial magistrate was not against his son being accorded a non-custodial sentence so that he can be rehabilitated and taken back to college.

7. This was a suitable case for a non-custodial sentence to enable the Appellant to be rehabilitated and continue with his education. The sentence meted out would only harden the Appellant and ruin his progression in life. The trial magistrate despite calling for a probation officer’s report, disregarded it without giving reasons. The trial magistrate must have acted on extraneous or extra judicial issues known only to himself as he did not disclose them in open. Though the trial magistrate was not bound to accept the probation officer’s report, he was under an obligation in all fairness to inform the Appellant why he would not accept the recommendations in the report as a matter of fairness. The Appellant had a right to be informed why the probation report could not be relied on. The Appellant, as a principle of fair trial had a right to be heard at the time of sentencing and as right as envisaged in the Constitution; Article 50 (1) provides:

“Every person has the right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body.”

This right applies at every stage of the trial including at the stage of the sentence. Article 50 K of the Constitution provides the right to adduce and challenge evidence. This must be at every stage of the trial. For example, had the State presented the records of the accused before sentencing, would the magistrate have proceeded to act on it by believing or not believing it without giving him a right to be heard. If he does so it would amount to violating his right to challenge it without giving him a chance to be heard. Such decision smells lack of integrity and transparency where sentencing is not based on any known principle and disregard of a social inquiry report which would have guided the magistrate to make an informed decision on sentencing.

8. It is important for the magistrate to always seek guidance from the Judiciary’s Sentencing Policy Guidelines. One of the guideline is that it is a mitigating fact that the accused is a first offender. Such factor must as a matter of course unless the contrary is shown, have the effect of lessening the term of custodial sentence or a consideration for a non-custodial sentence. The magistrate was very casual and failed to give reasons for rejecting the probation officer’s report. The State was also stunned at this turn of events and conceded to a non-custodial sentence. A Court sitting on appeal will not easily interfere with the sentence unless any one of the matters I have stated above are shown to exist.

In the case of Ogola Owoura -V- Reginum (1954) 21 270 it was stated:

“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly 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 R, (1950) 18 E.A.C.A. 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 Sher shewky, (1912) C.C.A. 28 T.L.R. 364”

The trial magistrate acted on a wrong principle by failing to consider the probation officer’s report which he had called for, failing to give the Appellant a chance to be heard at the time of sentencing and passing a manifestly excessive sentence in the circumstances of the case to an accused who was a first offender. When it comes to sentencing of a first offender the Court has a duty to consider whether the various non-custodial sentences provided for in the Penal Code under other laws would be appropriate. The option of a custodial sentence should be reserved for the cases in which the objectives of sentencing cannot be met through a non-custodial sentence.

9. I am of the view that the sentence meted out was not only excessive but very harsh and in blatant disregard of the principles of sentencing. It invites this court to interfere with it. I am of the view that a sentence on probation would have suffered. There was no basis laid for the harsh custodial sentence. I have had the chance to look at the probation officer’s report. A sentence of probation was appropriate in the circumstances of this case as the complainant who is the father of the Appellant wished to have him rehabilitated on a non-custodial sentence so that he could continue with college. If the trial magistrate wanted him to serve a custodial sentence, the stint he has had in prison must have served as a good lesson to him.

10. In Conclusion:

For the reasons I have stated, I find that the appeal on sentence has merits. I allow the appeal on the sentence and order that the sentence of imprisonment be set aside. Having considered the probation officer’s report, and noting that the Appellant has been in prison for nearly eleven (11) months, I order that the Appellant be placed on probation sentence for a period of one (1) years.

Dated and delivered at Kerugoya this 10th day of November, 2017.

L. W. GITARI

JUDGE

Judgment read out in open Court, M/s Muthoni holding brief for Mr. Omayo for the State, appellant present, court assistant Naomi Murage this 10th day of November, 2017.

L. W. GITARI

JUDGE

10. 11. 2017