[2023] KEHC 25514 (KLR)

Wambua v Republic (Criminal Appeal E115 of 2022) [2023] KEHC 25514 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25514 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E115 of 2022

TM Matheka, J

November 17, 2023

Between

Joseph Wambua

Appellant

and

Republic

Respondent

(From the sentence of Hon. G. Sagero (SRM) in Makueni Senior Resident Magistrate’s Court Criminal Case No. E076 of 2022 delivered on 16th June 2022)

Judgment

1. The appellant was charged with the offence of Robbery with Violence contrary to section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that on the 26th day of March 2022 at Shimo Estate in Makueni Sub-County, the appellant robbed off Caroline Mwikali Nyalo her mobile phone make Tecno T349 brown in colour valued at kshs 1,300/=, ksh 2,000/= and at the said robbery used actual violence by strangling her with a scarf and wounded the said Caroline Mwikali Nyalo her left eye using his fist.

2. In the alternative he was charged with handling stolen property c/s 322(1)(2) of the Penal Code . It was alleged that on the 26th day of March 2022 at Shimo Estate in Makueni Sub-County, otherwise than in the course of stealing, he dishonestly retained one mobile phone make Tecno T349 brown in colour valued at kshs 1,300/=, the property of Caroline Mwikali Nyalo knowing or having reason to believe it to be stolen.

3. Plea was taken on 29th March 2022 and the appellant pleadid not guilty. He told the court that the complainant and others beat him up and he needed medical attention. That prayer was granted and he was also assigned a counsel on pro bono.

4. When the case came up for hearing on 30/05/2022, the prosecutor informed court that the complainant had expressed intention to withdraw her complaint through a letter that she had written, and that the state had no objection.

5. The letter seemed to indicate that the complainant and the accused had discussed and the accused had accepted to compensate the complainant, on which basis the complainant sought to withdraw the complainant.

6. The learned trial court formed the view that the letter amounted to an admission by the accused and directed him to plead to the charge afresh. The charge was read to him and he pleaded guilty. The facts were read to him and he pleaded guilty as well. he was convicted on his own plea of guilty

7. After considering the pre-sentence report the court on 16th June 2022 sentenced to five (5) years imprisonment and I year probation post imprisonment ‘to benefit from counseling’.

8. Aggrieved by that decision, the appellant filed this appeal on the following grounds;a.I pleaded guilty to the charges.b.I pleaded with the court to allow me mitigate my case out of time.c.The appeal is against the sentence.d.I wish to be present upon the hearing of this appeal.

9. The appeal was canvassed through written submissions.

The Appellant’s Submissions 10. The appellant filed his submission and listed new grounds as follows;a.I pleaded guilty to the charges.b.That I did compensation of the expenses incurred by the complainant.c.That I am a first offender.d.That I am very remorseful of the actions I did to the complainant.e.That I humbly pray for the case to be acquitted, sentence reduced or non-custodial sentence.

11. He submits that he had no prepared intention of committing the robbery and was only tempted to do so by an impulse decision which he regrets. That it was ignorance and an urge to possess what he could not afford that led to such temptation.

12. He has urged this court to consider his compensation to the complainant and submits that his family and complainant’s family have reconciled.

13. He submits that he is a first offender and has urged the court to consider that such offenders are always ignorant of what they are doing. That when he robbed the complainant of her property, he was not aware that it was an offence and was under the influence of alcohol.

14. It is also his submission that he is remorseful, regrets his actions and will never repeat in his lifetime.

Submissions by the State 15. The State, through Prosecution Counsel Victor Kazungu, submits that the appellant was given an opportunity to mitigate through his Advocate and upon consideration of the same and the nature of the offence; the court passed the five years’ prison sentence and probation for one year in order for the appellant to benefit from counseling.

16. The State has identified the following as the issues for determination.a.Whether custodial sentence is proper in this case.b.Whether the jail term is fair and proportionate.

17. On issue (a), he submits that the offence of robbery with violence attracts a death sentence and that the trial court considered all the relevant factors in deciding the appropriate sentence in the circumstances of this case. That a non-custodial sentence would have exposed the community to the risk of robbery and the court took into account the need to arrest the rampant cases of robbery within its territorial jurisdiction.

18. Referring to guideline 7. 19(5) of the Sentencing Policy Guidelines, he submits that a court of law should take into account the protection of the community in deciding whether to impose a custodial sentence or not. That our courts have previously taken into account the need to protect the property of the public in imposing custodial sentence as opposed to non-custodial sentence. He relies on the case of Benson Nkaramata Sakita –vs- R[2018] eKLR where it was held that;“…in determining this appeal, this court has to take cognizance of the degree of culpability of the appellant and the use of imprisonment not only to punish crime but also protect the community from further risk..”

19. On issue (b), he submits that the sentence meted out is legal, proper and safe. That the offence attracts a death sentence but the appellant was sentenced to five years in jail. He relies on the case of Kirako Ole Kiserian –vs- Republic [2021] eKLR where the court held that;“The Penal Code prescribes a death sentence for the offence of robbery with violence. The trial court imposed a sentence of 35 years after taking into account the appellant’s mitigation, circumstances of the offence and upon proper guidance by recent jurisprudence on court’s discretion in sentencing. The trial court broke away from the biddings of mandatory sentences and properly exercised discretion in passing sentence on the appellant. Accordingly, it has not been shown that the trial court overlooked some material factor or took into account some wrong or irrelevant factors or acted on a wrong principle in imposing the sentence. Consequently, I find no reason to interfere with the sentence meted upon the appellant by the trial court.”

20. He has also relied on the case of SKM –vs- R (2021) eKLR where the court stated that;“Sentencing is the discretion of the trial magistrate. The discretion was exercised judicially in the circumstances of this case. I find no reasons to interfere with the sentence. In conclusion, I find that the prosecution proved its case beyond any reasonable doubt. This appeal is without merits and is dismissed.

21. In conclusion, he submits that the appellant has failed to establish that he deserves the reliefs sought.

Analysis and Determination 22. The offence of robbery with violence is contained in Sections 295 and 296(2) of the Penal Code as follows;“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

296(2).If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

23. Section 354(3) provides for what the court may do on appeal.(b)in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;

24. In this case is there any ground to reduce or alter the nature of the sentence?

25. From the record, it is evident that the appellant was given an opportunity to mitigate and he did so through his Advocate.

26. The learned trial l magistrate sought a pre-sentence report. The report painted the offender in good light and recommended a Community Service Order to be served at Kithuki Chief’s Office.

27. I have perused the report and it is evident that the Probation Officer did not consider the seriousness of the offence. There is no indication of the work available for the offender to perform should he be placed on community service, there is no evidence in the report of an identified supervisor. It is noteworthy that the officer provided the recommendation for a community service order yet the court did not request for such a report. It is no wonder that the trial court did not take the recommendation by the PACS officer. Section 3 of the CSO Act provides:(3)Where a court determines that a community service order should be made, it shall, before making the order, direct a community service officer to conduct an inquiry into the circumstances of the case and of the offender and report the findings to the court.(4)An inquiry under subsection (3) shall be conducted in such manner and the report shall be in such form and cover such matters as may be prescribed.(5)A court shall not make an order under this section in respect of an offender unless the offender is present and the court is satisfied—(a)that adequate arrangements exist for the execution of the order; and(b)after considering the report made under subsection (3) and, where necessary, after hearing the community service officer, that the offender is a suitable person to perform community service under the order.

28. It is evident that it is upon the court that is considering a Community Service Order that seeks a CSO report. The recommendation cannot just come from the Community Service Officer suo motu because the officer does not know the sentence the court is going to mete out.

29. That besides it is evident that the trial magistrate considered the mitigation of the appellant, the nature of the offence and the pre-sentence report.

30. In the report the appellant introduces the angle of a relationship between him and the complainant, a fact that is denied, and which was not brought up during the trial during which the excuse was that the offence was committed on an impulse. It cannot be an excuse to cause physical injury and forcefully take away another person’s personal property.

31. The trial court took into consideration the circumstances of the case; that the complainant wanted to withdraw the complainant, that the appellant pleaded guilty and that he was a first offender. In those circumstances the court exercised his discretion and did not impose the sentence of death as provided for by law but imposed a 5year imprisonment sentence and one-year probation supervision for purposes of receiving counseling.

32. Robbery with violence is s serious offence. The circumstances indicate that the complainant was attacked, and strangled with her scarf and money and a phone taken from her. Offences such as robbery with violence pose and create an environment of fear and insecurity within the society. It is laudable that the appellant accepted that he did wrong and went on to compensate the complainant (as he alleges as there is no such evidence on record.

33. However, there was nothing wrong with the imprisonment sentence that was meted out by the learned trial magistrate to send out the message that such acts will not be tolerated. Kenyans anywhere must be able to move around without fear. Everyone is suffering in different degrees in these harsh economic times and we ought to find ways to fend for ourselves that do not include violating the rights of others or taking away what it is that those others have also worked for.

34. The appeal is not merited. The same is dismissed.

DATED, SIGNED AND DELIVERED THIS 17TH DAY OF NOVEMBER 2023…………………………………………………………MUMBUA T MATHEKAJUDGECA MwiwaAppellant - presentFor state - Kazungu