[2022] KEHC 10238 (KLR)

Taitai v Republic (Criminal Revision E350 of 2021) [2022] KEHC 10238 (KLR) (Crim) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10238 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E350 of 2021

LN Mutende, J

June 13, 2022

Between

Seidh Sitahi Taitai

Applicant

and

Republic

Respondent

Ruling

1. Seidh Sitahi Taitai, the Applicant, was charged with three counts of assault causing actual bodily harm contrary to Section 271 of the Penal Code.

2. He pleaded guilty to all the three counts, was convicted and sentenced to serve five (5) years imprisonment.

3. Through an application filed herein on August 28, 2021 he seeks review of the sentence imposed on the grounds that he is remorseful; he is a young man aged 29 years, and a father of two (2) children who currently stay with his grandmother.

4. In reply the State through learned Counsel Mr. Mutuma argued that the sentence is proper in law but sought for a Probation Officer’s report in respect of the accused person.

5. This court has power to examine the record of the Subordinate Court so as to satisfy itself as to the correctness, legality or propriety of the order made. Section 362 of the Criminal Procedure Code(CPC) 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.

6. This is a case where the applicant only queried the sentence imposed that he found harsh and excessive. It has been held now and again that a sentence of a lower court can only be interfered with by an appellate court if it is manifestly excessive or if the court overlooked some material factor or took into consideration some wrong factors.

7. But, as a court seized of revisional jurisdiction I must interrogate the legality of the proceedings.

8. At the outset, looking at the provision of the law that the applicant was accused of contravening it is incorrect.

9. Section 271 of the Penal Codeis in respect of funds received by agents for sale related to the question of theft. The trial court should have caused that provision of law to be amended. However, since the applicant does not dispute having committed the act in question, I do consider what was stated in the case of John Irungu vs. Republic(2016) eKLR Criminal Appeal No. 20 of (2016) where the Court of Appeal observed that“The Code contemplates that there may be variations, so long as there is substantial compliance with the rules. In the same vein section 382 of the Code focuses, not on formal compliance with the rules of framing the charge, but on whether any error, omission or irregularity that has occurred in the charge, has occasioned a failure of justice.”

10. The question is therefore whether the error on the charge occasioned an injustice. Section 382 of the CPCprovides thus:Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

11. The applicant having not raised the issue, I find the error curable under Section 382 of the CPC.

12. The applicant herein assaulted three persons. Facts of the case were that:“On 1/7/2021 at 2100 hours Lilian in the company of her husband had gone to Wangui’s house where she had left her belongings. Wangui had left the items at accused’s house. The accused who was hiding went and stabbed Vitalis on the right side of abdomen. He picked the knife and cut Lilian on the left side arm and Wangui was stabbed twice on the left side hand while trying to rescue Lilian. The complainants went to Hospital and was treated. P3 forms produced as exhibits before court as exhibit No. 1, 2 and 3. ”

13. In mitigation the applicant stated that the complainants went to his house at night.

14. In sentencing the applicant the court opined that he was dangerous and the victims could have died.

15. The objective of sentencing include deterrence, rehabilitation, retribution, incapacitation and reparation. The accused person admitted the charge at the outset which saved the court’s time. But the court meted out a deterrent sentence having considered how the applicant’s action impacted upon the person of the three (3) victims.

16. What is apparent in this matter is the irregularity of the sentence. The trial court meted out what is referred to as an omnibus sentence which was an illegality as each count should have had its separate sentence.

17. Section 14 (1) of the CPC provides thus:Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.

18. A probation Officer’s report was filed but the victims were not interviewed. In such a case particulars of the victims were crucial to enable this court form an opinion of what orders to grant.

19. Section 251 of the Penal Codeprovides thus:Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.

20. The fact of the appellant having been a first offender should be considered, in the premises I call to this court orders of the trial court that I quash and substitute with the following sentences.Count 1 – The applicant (Accused) to serve four (4) years imprisonment.Count 2 – To serve three (3) years imprisonment.Count 3 – To serve four (4) years imprisonmentSentences to run concurrently.

21. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Akunja for the StateCourt Assistant – Mutai