[2022] KEHC 16244 (KLR)

State v Omondi & 3 others (Criminal Revision E051 of 2022) [2022] KEHC 16244 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16244 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Revision E051 of 2022

RE Aburili, J

December 14, 2022

Between

State

Applicant

and

Leonard Omondi

1st Respondent

David Otieno Omondi

2nd Respondent

Cyrus Okoyt Ouma

3rd Respondent

Stephen Okoth Yamo

4th Respondent

Judgment

1. All the four respondents herein Leonard Omondi, David Otieno Omondi, Cyrus Okoth Ouma and Stephen Okoth Yamo were jointly charged with six counts of various offences. In count one, they were charged with the offence of arson contrary to section 332 (a) of the Penal Code. Particulars of the offence were that the four accused persons, on the 13th day of March, 2021 at Kanyajer village in Komenya Kalak sub Location in Siaya Subcounty, jointly with others not before the court, willfully and unlawfully they set fire to a dwelling house of Alex Onyango, assorted household goods, assorted clothing, assorted food items, furniture and assorted electronics all valued at Kshs 600,000 the property of the said Alex Onyango. In count two, the respondents faced the charge of malicious damage to property contrary to section 339(1) of the Penal Code. In Count Three, the four respondents were jointly charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code. In Count Four, all the four Respondents faced the charge of injuring an animal contrary to section 338 of the Penal Code. In Count Five, all the Respondents were charged with the offence of cutting down crops contrary to section 334 of the Penal Code. In count six, all the four respondents faced the charge of stock theft contrary to section 278 of thePenal Code.

2. The respondents took plea on March 16, 2021 and pleaded not guilty to all the counts in the charge sheet. the case proceeded to full trial and after the prosecution and defence gave their evidence, the trial magistrate hon Lester Simiyu, Principal magistrate found the respondents guilty of committing the offences as charged in counts 1,2,4 and 5. She acquitted them of count three of threatening to kill and count six of stock theft.

3. After convicting the accused persons and hearing their respective mitigations, the trial court referred the matter for court annexed mediation on account that all the accused and the complainant were closely related hence the need to find a long-lasting solution.

4. However, the complainant declined to participate in the mediation process although all the respondents were willing to mediate and they even attended mediation sessions convened by the court accredited mediator.

5. Following a no settlement report from the mediator, the trial magistrate having received a pre-sentence report on each of the four respondents proceeded and sentenced each of the four respondents to serve sentences that were suspended.

6. It is that 4 years suspended sentence imposed on each of the four respondents that the state and the complainant were aggrieved by that gave rise to this revision matter. The application is based on the following grounds:a.That the sentences meted out against the accused persons were manifestly lenient given that the person convicted is liable to (a) under section 332(a) to life imprisonment; (b) 339(1) to 5 years imprisonment; (c) 338 to three years imprisonment; and (d) 334(c) to fourteen years imprisonment.b.That the trial magistrate in pronouncing her sentence failed to take into account the fact that the victim had lost property worth hundreds of thousands of shillings and heavily traumatized by actions of the accused persons;c.The trial magistrate was not guided by the legal principles applicable in the matter before her in meting out the sentence, while sentencing is both a matter of law and discretion, the discretion ought to be guided by evidence and sound legal principles;d.The trial court was not guided by the judiciary sentencing guiding principles which are in place to guide courts in sentencing. The principles relevant to this application are:i.proportionality of the sentence to the offending behaviour;ii.uniformity of sentence –similar offences should attract similar penalty/sanctions;iii.deterrence to discourage or eliminate a vice in the communityiv.Retribution;v.transparency consideration taken as to what sanction the law provides.(e)The sentence meted against the accused persons was not proportional to the nature of the offence charged and committed;(f)the sentence did not serve any retribution whatsoever considering that the victim of the offence lost money in hundreds of thousands.

7. The state urged this court, pursuant to the powers given to it by the Constitution as read with section 362 of the Criminal Procedure Codeto call for and examine the record of proceedings before the trial court in respect of this matter for the purpose of satisfying the correctness, legality and propriety of the sentence passed and enhance it accordingly.

The respondents’ response 8. The respondents were served with the application and they appeared in court in person. They were guided by the court that they were at liberty to be represented by advocates of their own choice. On October 13, 2022 when the matter came up for interpartes directions, all the respondents were present and this court informed them of the reasons why they were before the court and their right to legal representation. Each of the respondents stated that they were ready to represent themselves and argue out the application for sentence enhancement.

9. The court then gave the respondents until November 1, 2022 to enable them adequately prepare for the hearing when they again appeared in court and submitted in response to the application by Mr Kakoi Senior principal prosecution counsel who urged the court to enhance the sentences imposed on the respondents on the stated grounds and emphasized that the trial court improperly exercised discretion in sentencing the respondents to very lenient sentences.

10. The 1st respondent submitted that him and the complainant were cousin/ step brothers, their mothers are co-wives. He submitted that his two houses too were burnt down and that the lower court even investigated and they were referred to mediation but that the complainant refused to participate in mediation. He stated that the second respondent was his first born son who was to go to college. That his other son was to join university while three are in Form three and others are in primary school. He stated that the complainant was envious of him because he was educating his children. He submitted that his mother was very sick for 30 years and on antiretroviral and it is him who buys her the drugs.

11. The second respondent submitted that his houses were burnt twice and their kitchen too was burnt and so was his brother’s house. That the complainant who was their uncle burnt their houses and that despite their willingness to mediate, he had refused.

12. The 3rd respondent submitted that he needed to be helped to go back to his job.

13. The fourth respondent submitted that his mother was alone at home and that he was a casual labourer. That he will suffer if the sentence is enhanced as he was in prison for one and a half years during the trial since he was unable to raise bond.

14. The complainant was also present in court and he was given the opportunity to submit. He stated that he was now 73 years old and that the 1st respondent was his step brother. That he had nowhere to live and that he expected the court to jail the respondents because his life was in danger although they had not gone to threaten him. When the court asked the 1st respondent whether he could compensate the complainant, he stated that he could not because he was not at the scene.

Analysis and Determination 15. I have considered the application by the state as well as the responses by the respective respondents.

16. The powers of the High court in revision are stipulated in section 362 through to 366 of theCriminal Procedure Code. Section 362 specifically provides that:“The High court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”7. What the High Court can do under its revision jurisdiction is stated under section 364 of theCriminal Procedure Code, which provides that:“(1)in the case of a proceeding in a subordinate court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may –(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;(b)in the case of any other order than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence.Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

17. The maximum sentences provided for the offences of arson is life imprisonment, 5 years for malicious damage to property, 3 years for injuring an animal and 14 years imprisonment for cutting down crops.

18. The complainant victim of the offence complains that the sentences as suspended were manifestly lenient and that the court did not exercise its discretion in accordance with the law taking into account the sentencing guidelines and objectives.

19. For this court to revise the sentences imposed on the convicts, the state must demonstrate that there was improper exercise of the lower court’s discretion or misapplication of legal principles. Further, it is now an established principle of law that a superior court will only interfere with the trial court’s discretion in sentencing if it was exercised against legal principles or where relevant factors were not considered or irrelevant and extraneous matters were considered; or where the sentence is manifestly excessive. It must also be demonstrated that the trial magistrate committed an illegality, impropriety or mistake in sentencing the respondents.

20. In Ogolla S/o Owuor v R {1954} EACA 270 the Court of appeal for eastern africa set out the circumstances that would lead to interference with the discretion of the trial court in sentencing and stated as follows:“The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors. This was further echoed in the dictum of the cases in R v Shershowsky {1912} CCA TLR 263 as emphasized in Shadrack Kipkoech Kogo v R, Criminal Appeal No. 253 of 2003 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 irrelevance 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 v R {1989} KLR 306).”

21. I have considered the issues raised in the respective parties’ submissions. Section 364 (1) (a) of the Criminal Procedure Code provides for revision. The powers of the High Court on review where there has been a conviction, are the same as those of the court in respect of an appeal. The section provides that the High Court may:a)reverse the finding and sentence and acquit or discharge the accused or order him to be tried by a court of competent jurisdiction (section 354 (3) (a) (i) of theCriminal Procedure Code).b)alter the finding, maintain the sentence, or with or without altering finding, reduce or increase the sentence section 354 (3) (a) (ii) of theCriminal Procedure Code).c)Increase or reduce the nature of the sentence and or finding Section 354 (3) (a) (iii) and (b) of the Criminal Procedure Code).d)Take further evidence, if it thinks further evidence is necessary, and thereupon dispose the matter under section 358 of the Criminal Procedure Code.

22. What is before me is a simple application to enhance the sentence. The role of the High Court in revision is essentially a supervisory role over subordinate courts as contemplated in Article 165(6) and (7) of the Constitution which provides that:“165 (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

23. The role of this court is to assess whether the lower court’s orders are correct, legal, proper or meet procedural requirements and the interests of justice, or whether they are marred by impropriety or are generally irregular. In Republic v John Wambua Munyao & 3others[2018] eKLR the court observed that:“The High Court’s power of revision had the purpose of enabling the High Court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed on to the regularity or any proceedings of any subordinate court.”

24. TheSentencing Policy Guidelinesat page 21 provides that:“Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for a case in which the objectives of sentencing cannot be met through a non-custodial sentence. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence which is geared towards steering the offender from crime. In particular, imprisonment of petty offenders should be avoided as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short sentences are disruptive and contribute to re-offending.”

25. In Elisha Kipleting v Republic[2021] eKLR, Olga Sewe J had this to say on sentencing:“The judiciary sentencing guidelines recommend a three-step approach to sentencing thus; firstly, that the sentencing options provided by the specific statute creating the offence be ascertained; secondly, that a decision be taken as to whether a non-custodial or a custodial sentence would be the most appropriate order in the circumstances and, thirdly, if custodial sentence is the most appropriate option, the duration thereof ought to be determined, taking into account the mitigating and aggravating circumstances; examples of which are set out in the said guidelines. Moreover, even where custodial sentence is deemed the most appropriate, the guidelines require that care be taken to ensure even-handedness in sentencing. To this end, the suggestion given in paragraph 23. 9 is that:“The first step is for the court to establish the custodial sentence set out in the statute for that particular offence. To enable the court to factor in mitigating and aggravating circumstances/factors, the starting point shall be fifty percent of the maximum custodial sentence provided by statute for that particular offence. Having a standard starting point is geared towards actualizing the uniformity/impartiality/consistency and accountability/transparency principles set out in paragraphs 3. 2 and 3. 3 of these guidelines. A starting point of fifty percent provides a scale for the determination of a higher or lower sentence in light of mitigating or aggravating circumstances.”(8)Moreover, at paragraph 22. 12 of the sentencing policy guidelines, it is recommended that:“To pass a just sentence, it is pertinent to receive and consider relevant information. The court should, as a matter of course, request for pre-sentence reports where a person is convicted of a felony as well as in cases where the court is considering a non-custodial sentence…Whilst the recommendations made in the pre-sentence reports are not binding, the court should give reasons for departing from the recommendations.”

26. In the instant case, the trial magistrate after convicting the accused persons ordered for court annexed mediation which the accused persons were more than willing to engage in but the complainant refused to participate. The trial court also ordered for a pre-sentence report to be filed by the probation officer and the reports were filed on each of the accused persons.

27. Starting with the last respondent herein Stephen Okoth Yamo, the probation officer Ms Mercy Keya recommended a custodial sentence on account that the convict had no fixed abode and that he maintained his innocence. She claimed that it will be impossible to supervise him.

28. Concerning Cyrus Okoth Ouma, the probation officer left the matter to court as the convict maintained his innocence saying he had not committed the offence.

29. The 1st convict Leonard Omondi is said to have been arrogant and therefore not suitable for non-custodial and so was the 2nd convict David Otieno Omondi.

30. When this revision was filed, all the four respondents were served and they have religiously attended court. The question is whether the pre-sentence report was objective and my answer is no. As stated in the above sentencing guidelines, cited, the court is not bound by recommendations in the presentence report but it must give its reasons for rejecting it.

31. In this case, the trial magistrate considered the circumstances under which the offence was committed, the filial and other relationship between the convicts and the complainant and the fact that the complainant and the 1st, 2nd and 3rd respondents had had long standing disputes such that both families had lost their houses to arson. She found that there was an underlying dispute and deemed it fit to sentence the convicts to suspended sentences.

32. In addition, the trial magistrate considered the mitigations by the convicts who were all said to be first offenders as no past criminal records were availed to court. There was no report from the probation officer claiming that they were a communal risk. In my humble view, the social readaptation of the convicts can still be achieved by the suspended sentences, considering that the 4th respondent had been unable to raise bond and was in custody until the criminal case was heard and determined.

33. It is also important for the complainant to appreciate that it is not the jailing of the convicts that the objects of sentencing are achieved. The offence committed was serious yes but the offenders have not been merely set free. The suspended sentences mean that they can still be arrested and send to prison should they reoffend in any way hence the 4-year sentence hangs on their shoulders for the next ten years.

34. Our prisons are also full and courts are called upon to find alternatives to custodial sentences in appropriate cases. In my view, this was an appropriate case for non-custodial sentence having regard to the circumstances under which the offence was committed and the mitigations offered in court. The complainant may not be willing to accept the apologies which the convicts were willing to offer during the attempted court annexed mediation but that does not mean that the court must always go with the demands of the complainants who are victims of offences. The courts must apply themselves to the principles espoused in law and practice in sentencing.

35. The victim of the offence has an alternative remedy of suing for damages and seeking compensation from the convicts. In the event that he cannot raise legal fees, he can seek leave to sue as a pauper.

36. For all the above reasons, I find that the discretion of the trial magistrate in sentencing was properly exercised and that it took into account relevant matters before her. I find no reason to interfere with the same. This application for sentence enhancement is therefore found not to be merited. It is declined and dismissed. The convicts to serve the suspended sentences imposed on them by the trial court.

37. This file is now closed. I so order.

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