[2017] KEHC 3354 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO 23 OF 2016

TARASISIO KAMAU.......................APPELLANT

VERSUS

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

JUDGMENT

The appellant herein was charged with two counts of house breaking contrary to section 304 (1) (b) and stealing contrary to section 279 (b) of the Penal Code, before the Chief Magistrate’s Court at Embu.

The particulars of the first count were that, on the 7th day of March, 2015 at Kangara Village, Kithimu sub-location within Embu County broke and entered the building used as a dwelling house by HELLEN MUTHONI GICHOVI and stole 1 bucket of beans valued at Ksh. 1,650/-, a slasher valued at Ksh. 250/- and 1 panga valued at Ksh. 200/-, all valued at Ksh. 2,100/- the property of the said HELLEN MUTHONI GICHOVI.

The particulars of the 2nd count were that, on the 8th day of March 2015 at Kangara Village, Kithimu location, within Embu County broke and entered the building used a dwelling house by HELLEN MUTHONI GITHOVI and stole one lamp make Sun way valued at Ksh. 500, the property of the said HELLEN MUTHONI GICHOVI.

He also faced an alternative charge of handling stolen goods, contrary to section 322 (1) of the Penal code. The particulars were that on the 8th day of March, 2015 at Kangara Village, Kithimu location, within Embu County, otherwise than in the course of stealing, dishonestly retained 1 lamp make Sun Way knowing or having reason to believe it to be stolen goods.

The Appellant pleaded guilty to the charges and was convicted and sentenced to serve three (3) years in jail in count 1, the first limb, 2nd limb four (4) years while in count 2 he was sentenced to serve three (3) years in jail in the first limp of the said count and four 4 years in the 2nd limb. He was discharged on the alternative charge and the sentences were ordered to run concurrently.

Being dissatisfied with the sentences, he has appealed to this court and has listed four (4) grounds of Appeal as follows;

(1) That the learned trial magistrate erred in law and facts when he convicted the appellant for 7years in an offence of breaking and stealing which is contrary to the law under this offence.

(2) That the learned trial magistrate erred in both points of law and facts when he failed to consider the appellants mitigation which contained some reasonable facts.

(3) That the learned trial magistrate erred in both points of law and facts when he failed to consider that the alleged offence occurred due to the fact that the complainant owed him a debt.

(4) That the learned trial magistrate erred in both matters of law and facts when he failed to consider that he was held in police custody for more than 24 hours before he was taken to court which is contrary to the law.

The appeal proceeded by way of written submissions and in his written submission, the appellant abandoned ground 4 of the appeal.

The appellant’s first ground of appeal is that the sentence of seven (7) years is contrary to the law, his contention being that the same is excessive. On the part of the state, it was submitted that the same is not excessive but its reasonable and correct under the law.

I have considered the submissions. The appellant was charged under section 304 (1) (b) of the Penal Code which provides for a maximum sentence of seven (7) years imprisonment. The appellant was sentenced to serve 3 years imprisonment in both counts. With regard to that of stealing contrary to section 279 (b) the law provides for a maximum sentence of 14 years but he was sentenced to serve 4 years in both counts. In the circumstances, the sentence, meted on him in both limbs of the two counts is not excessive.

On the 2nd ground of appeal to the effect that the learned magistrate failed to consider the appellant’s mitigation, I have perused the record and before sentencing, the learned magistrate recorded that he considered the mitigation and the fact that the appellant is a first offender and it is not therefore true that his mitigation was not considered.

On the third ground of appeal, the appellant did not mention anywhere that the complainant owed him any debt. The issue is being raised for the first time in the appeal. In any event, even if that was the case, the appellant ought to have used legal means to recover his debt from the complainant and not to break into her house and steal therefrom. That ground of appeal does not hold any water.

The appellant raised a new ground of appeal in his submissions to the effect that he was mentally disturbed and that the court ought to have considered that fact while sentencing him. This court has noted that, he indeed raised the issue in the lower court but this was after he had already pleaded guilty to the charge and after conviction. The record shows that he had appeared in court on several other occasions before and the issue had not been raised. He even applied to change his plea from that of not guilty to a plea of guilty. From the court record, there is no indication that the appellant did not know what he was doing and/or that the alleged mental disturbance influenced his decision to enter a plea of guilty. I am persuaded by the submission by the learned state counsel that the new ground was an afterthought and the same does not carry any weight.

Accordingly, I find that the appeal has no merits and I hereby dismiss the same.

Dated, signed and delivered at Embu this 2ndday of October, 2017.

……………………………..

L. NJUGUNA

JUDGE

In the presence of

…………………………For the Appellant

………………………..For the Respondent