[2022] KEHC 9895 (KLR)

Tsimbulika v Republic (Criminal Revision E368 of 2021) [2022] KEHC 9895 (KLR) (Crim) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9895 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E368 of 2021

LN Mutende, J

July 21, 2022

Between

Violet Ayuma Tsimbulika

Applicant

and

Republic

Respondent

Ruling

1. Violet Ayuma Tsimbulika, the Applicant, approached this court through an application seeking review of her sentence. The applicant was convicted in Kibera Magistrates Criminal Case No. E 039/2021 for the offence of Stealing Contrary to Section 268 (1) of the Penal Code. The trial court sentenced her to serve 3 years imprisonment.

2. The application is premised on grounds that the applicant was a first offender and that she is remorseful. That she has fully reformed during the time she has been in custody. She prays for a non-custodial sentence to be able to take care of her children.

3. The applicant swore an affidavit in support of the application where she deposes that she has three children who are fully dependent on her aged 15,13 and 11 years, respectively. That her parents are aged and sickly, which makes her the sole breadwinner.

4. That she has embraced prison reforms initiative and has undergone a course in Bible studies. That she has also been teaching fellow inmates baking and has contributed to positive change in prison reforms and rehabilitation.

5. The applicant was charged with stealing contrary to Section 268 (1) as read with Section 275 of the Penal Code. The particulars of the offence were that between 23rd August, 2020 and November, 2020 at Muthithi road in Parklands Apartments within Nairobi County, she stole US$ 5000, 3 bedsheets, one duvet cover, tot glasses, hand bags, 2 perfumes, assorted jewellery and other household goods of unknown value, the property of Nasreen I. Rasool. The accused also faced an alternative count of handling stolen goods, as they were recovered and ultimately released to the complainant.

6. The applicant pleaded guilty to the main charge at the outset, was heard on her mitigation where she prayed for a non-custodial sentence. The court noted the mitigation and found that the crime was serious as she had been entrusted with property. As a result, the court declined to give her an alternative of a fine and noted that the accused case was to teach such employees who were entrusted with employers’ property a lesson. She was sentenced to serve 3 years imprisonment.

7. The prosecution opposed the application and argued that the sentence was legal and that there was no reason to warrant revision.

8. The applicable principle in interfering with the sentence of the trial court by an appellate court was settled in the case of Ogolla s/o Owuor (1954) EACA 270, where the Court stated as follows:“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

9. This jurisdiction of the court to review has been invoked under Section 362 of the Criminal procedure codewhich states 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.

10. The charge of stealing is enacted under the provisions of Section 268 of the Penal Code and the corresponding punishment is under Section 275 of the Penal Code that provides as follows:Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.

11. The applicant was sentenced to serve 3 years imprisonment which was within the law, but, it was the maximum sentence provided. The fact that the accused pleaded guilty at the outset saved the courts judicial time; she was a first offender, and the stolen property was recovered.

12. In the case of Stanley Kiprono Bett vs. Republic [2022] eKLR where the accused stole 1000/- Ksh and 28 metal rods from his employer. Kamau J held that:“…. Bearing in mind that the Appellant breached the trust that had been bestowed upon him by his employer by stealing the very goods that he had been employed to protect from bad elements in the society, it was the considered opinion of this court that the sentence of two (2) years imprisonment was not excessive for such an offence.Further that:“25. However, this court took the view that as the Appellant pleaded guilty to offence at the first instance thus saving the court valuable time in going through the rigors of a full trial and he was a first offender, he ought to have benefitted from a lower sentence.”The court substituted the 2 years imprisonment meted out with 9 months period.

13. In the instant matter the court stated that the sentencewould serve as an example to others who were also entrusted with their employer’s properties. This was an overreach and erroneous view and the sentence was also manifestly harsh warranting this court to intervene.

14. I note that the applicant has been in prison for a period of 2½ years. That being the case, the sentence meted out is set aside and substituted by the term served.

15. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF JULY, 2022. L. N. MUTENDEJUDGEIn the presence of:ApplicantMs. Odour for the StateCourt Assistant – Mutai.