[2020] KEHC 1090 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. 139 OF 2018

TYSON MUTISYA KIMANZI.............................................APPELLANT

VERSUS

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

(Being an appeal from the original sentence in the Chief Magistrate Court at Mombasa Criminal Case No. 451 of 2015 by Hon. J. M. Nang’ea (CM) dated 6th December 2018)

Coram: Hon. R Nyakundi

Mr. Muthomi for the Respondent

Appellant in Person

JUDGMENT

The Appellant was charged with conspiracy to commit a felony contrary to section 393 of the Penal Code. The particulars of the offence were that on 27th February 2015 at First Community Bank Kizingo Branch, in Mombasa Town within Mombasa County, he conspired together to commit a felony namely stealing from First Community Bank Kizingo Branch off its money Ksh. 10,800,000/- (Ten million, eight hundred thousand).

He was charged with a second count of stealing by servant contrary to section 281 of the Penal Code. The particulars were that on 27th February 2015 at First Community Bank Kizingo Branch, in Mombasa Town within Mombasa County being a cash officer of the said bank he stole Ksh. 10,800,000/- (Ten Million Eight Hundred Thousand) which came into his possession by virtue of his employment.

The Appellant pleaded not guilty and after hearing, he was convicted and sentenced to five years imprisonment on both counts to run concurrently.

Aggrieved by the said sentence, the Appellant filed his amended grounds of appeal reproduced verbatim that: -

1. That I have been in custody for a period of over one year now and thus I am now remorseful.

2. That I feel the five year imprisonment that was imposed upon me though being within the required bracket for the offence committed is still long and a continued stay in prison will ruin my life and that of my dependants.

3. That, I pray for a non-custodial sentence to enable me take care of my family as I also serve the remaining part of my sentence.

4. That I am a first offender and therefore beg for forgiveness from your able hand and hence promise to remain being a law-abiding citizen all through.

5. That the period I have already served behind bars is enough to impose a positive change in me taking into consideration the psychological torture I have suffered for years since the commission of the offence.

The Appellant filed his written submissions on 18th February 2020 in support of his appeal, which was to wit that he was a first offender, he was remorseful and that the 18 months in prison had a positive change in his life. Further, he submitted that while the sentence was lawful, he prayed that the court to give him a non-custodial sentence to enable him take care of his children who were left in the care of his aged mother after his wife ran away.

The Respondent filed its submissions dated 2nd June 2020 on the same date in opposition of the appeal. In its brief submissions the Respondent stated that the trial court had taken the Appellant’s mitigation into consideration, which are similar to the matters in the appeal, and weighed them against the fact that the theft was brazen and that a substantial amount of the money was missing and sentenced the Appellant to five years which was within the law. The Respondent submitted that the Appellant failed to give a valid reason for the court to exercise its discretion and prayed that appeal be dismissed. The Respondent relied on BernardKimani Gacheru vs Republic [2002] eKLR

Analysis and determination

I have considered the submissions by both parties. It is clear that the appeal is against the sentence only.

It is well established that sentencing is at the discretion of the trial court and an appellate court can only interfere with the sentence under very specific circumstances as was emphasized by the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLRwhere it stated: -

“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v. Republic, Cr App No. 188 of 2000 this Court stated thus:

It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.

(See also Wanjema v. Republic [1971] E.A 493).”

In the present case, the charges levied against the Appellant provided for a maximum sentence of 7 years imprisonment. The sentence of 5 years meted out on the Appellant was therefore lawful. Additionally, it is evident from the record of the trial court that the trial Magistrate when sentencing the Appellant took into consideration the mitigation of the Appellant and weighed it against aggravating factors. The trial Magistrate found that the aggravating factors outweighed the mitigating and found that the Appellant required a custodial sentence.

The Appellant has failed to demonstrate how the learned trial Magistrate ventured outside her discretionary framework in imposing the sentence complained of. The issues raised in the appeal are similar to the issue raised in the trial court. The fact that the Appellant has had time to reflect on his action while in prison is not a valid reason to interfere with the discretion of the trial court.

The sentence by the trial magistrate was well deserved taking into consideration that the Appellant used his position in the bank to alter records and steal the money. Moreover, a large part of the money stolen has never been recovered to date being a loss to the complainant bank. I find no reason to interfere with the sentence of the trial Magistrate. The appeal is hereby dismissed in its entirety.

Orders accordingly.

Judgment delivered, dated and signed at Malindi this 9th day of December, 2020.

...........................

R. NYAKUNDI

JUDGE

In the presence of:

The Appellant in person

Mwangeka for the Respondent