Samuel Muchiri v Republic [2017] KEHC 3308 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL APPEAL 3 OF 2016

SAMUEL MUCHIRI.....................................................APPELLANT

VERSUS

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

JUDGMENT

The Appellant herein was on the 13th January, 2016 convicted on his own plea of guilty for the offence of Burglary Contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the penal Code and sentenced to serve 7 and 10 years respectively.

The particulars of the offence are that, on the night of the 26th and 27th day of November, 2015 at Majengo Estate in Embu town within Embu County, broke and entered the dwelling house of BENEDICT MUIRURI WANYORO with intention to steal therein and did steal from therein, one computer make HP s/no. FR 235, 256. 36cts, one trouser jeans, one jacket, one wrist watch, one case, one sufuria, one plastic trolley and two melamine cups all valued at ksh. 16,400/= the property of the said BENEDICT MUIRURI WANYORO.

He also faced an alternative charge of handling stolen goods, contrary to section 322 (l) of the Penal Code.

The particulars being that on the 27th day of November, 2015 at Majengo Estate in Embu town within Embu County, otherwise than in the course of stealing, dishonesty retained one computer make HP s/no FR 23525636, one trouser, one jacket, one T-shirt, one plastic trolley, one wrist watch, one case, one sufuria and two melamine cups knowing or having reason to believe them to be stolen goods.

He Appealed to this court and has listed 8 grounds of Appeal but in his written submissions, he abandoned all the other grounds and only pursued ground 5 wherein, he has contended that the sentence as meted out was harsh and that the learned trial Magistrate never stated if the two sentences were to run consecutively or concurrently.

In his submissions, the Appellant averred that the sentence was excessive and Contrary to the law and that the learned magistrate failed to take into account the fact that the Appellant was a first offender.

He also argued that the learned Magistrate erred in not passing the minimum sentence as required under the law. He also took issue with the words used by the learned Magistrate when he sentenced him and I quote

“The accused does not deserve to live among civilian people, he ought to be away for a long time.”

And argued that the Magistrate was not ready to pass the sentence provided for by the law. He urged the court to reduce the sentence.

On her part, Counsel for the Respondent submitted that the learned Magistrate did not err while meting out the sentence on the Appellant. That the sentence is within the law and the learned Magistrate did explain the reason why he meted out that sentence.

In response to the contention that the learned Magistrate did not state whether the sentences should run concurrently or consecutively, she quoted the case of Mwaenzi said Ndaru Versus Republic (2008) eKLRwhere Sergon J dealt with a similar situation and stated as follows:

“In my appreciation of the general rule of practice, I am convinced that where the court is silent like in these proceedings it should be presumed that the sentences shall run concurrently.”

The court has considered the only ground of Appeal and the submissions made by the parties herein. The Appellant argued only one ground of Appeal on the excessiveness of the sentence and that the Magistrate did not state if the sentence was to run consecutively or concurrently.

Under Section 304 (2) of the Penal Code, the maximum sentence provided for is ten years while under Section 279 (b) the maximum sentence is fourteen years. As rightly submitted by the Counsel for the Respondent, the sentence was within the law and is not illegal as alleged by the Appellant. However, the court noted that the Appellant is a first offender and though, he did not mitigate, it does not mean that he was not remorseful as noted by the trial Magistrate and in the circumstances, the comments were rather unfortunate.

Secondly, the learned Magistrate did not state whether the sentences would run concurrently or consecutively which was an error on his part. In my opinion the sentences were excessive.

Under Section 354 (b) of the Criminal Procedure Code, I allow the Appeal and reduce the sentences to six years in both counts. It is further ordered that the sentence shall run concurrently.

Orders accordingly.

Dated, Signed and Delivered at Embu this 2ndDay of October, 2017.

……………………

L. NJUGUNA

JUDGE

In the Presence of

…………………. for the Appellant

……………………. for the Respondent