[2022] KEHC 15851 (KLR)

Too v Republic (Criminal Appeal E022 of 2021) [2022] KEHC 15851 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15851 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E022 of 2021

AN Ongeri, J

November 11, 2022

Between

Patrick Kimutai Too

Appellant

and

Republic

Respondent

(Being an Appeal from the Original Conviction and sentence of Hon. Kimanga (SRM) in Kericho CMCR. Case No. 2287 of 2018 delivered on 24/6/2021)

Judgment

1. The appellant filed this mitigation appeal against the sentence of 4 years imprisonment for the offence of stealing from a locked store contrary to section 279 (g) of the Penal Code.

2. The particulars of the charge were that on June 30, 2018 at National Cereals Board Store at Kericho, the appellant jointly with others not before court stole 120 bags of black tea valued at Kshs 1,950,000/= the property of James Finlay Limited and in order to commit such theft opened a locked store using unknown device.

3. The prosecution called a total of five (5) witnesses whereas the appellant gave a sworn statement and did not call any witnesses.

4. The prosecution case was cogent, all prosecution witnesses and gate records at the National Cereals Board placed the accused at the scene of crime as well as at the center of the offence. The prosecution evidence was not controverted by the defence.

5. The appellant in his defence stated that he was a boda boda operator within Kericho Town. He denied committing the offence, the circumstances and facts of the offence, he however could not explain his whereabouts on June 30, 2018.

6. The parties filed the following brief submissions which I have considered.

7. The appellant filed the mitigation appeal on the following grounds :-i.That he was remorseful and learnt that crime does not pay.ii.That while in prison he underwent various rehabilitation programs that will enable him to earn a living.iii.That he had a young family that was languishing in poverty as he was the sole bread winner.iv.That the period spent in remand be considered in the appeal alternatively that he serves the remaining term of the sentence as a non-custodial sentence.

8. In response to the mitigation submissions by the appellant, the respondent submitted that during trial they called a total of five (5) witnesses whereas the appellant gave a sworn statement and did not call any witnesses.

9. The respondent submitted that the prosecution witness accounts were coherent, consistent and corroborated whereas the appellant’s defence was a mere denial which could not dislodge the prosecutions case.

10. This being a first appeal the duty of the 1st appellate court is to re-evaluate the evidence before the trial court and to arrive at my own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses.

11. The sole issue for determination in this appeal is whether the mitigation appeal should be allowed.

12. The appellant was first arraigned in court on July 26, 2018. He was briefly released and after he failed to attend court severally contrary to the terms of the bond, bond was cancelled on February 13, 2019.

13. The appellant was subsequently arrested and presented in court pursuant to a warrant of arrest. On March 15, 2019 the court ordered that the apellant be remanded in custody. The matter proceeded to trial, appellant was convicted and subsequently sentenced on June 24, 2021. The appellant has spent 3 years and 8 months in custody.

14. The trial court did not take into account the time the appellant spent in remand during sentencing.

15. The law requires that the period a person has been in custody be considered in tabulation of the jail term, this is provided for in section 333 (2) of the Criminal Procedure Code, Cap 75, Laws of Kenya which states as follows;'Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody (emphasis mine).'

16. In court in Bethwel Wilson Kibor v Republic [2009] eKLR expressed itself as follows :- 'By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody.'

17. I find that the appellant has already served the sentence taking into account the period he was in custody before he was sentenced.

18. I allow the mitigating appeal and direct that the appellant be released forthwith unless lawfully held for any other reason.

Delivered, dated and signed at Kericho this 11th day of November, 2022AN ONGERIJUDGE