[2022] KEHC 15525 (KLR)

Wanguthi v Republic (Criminal Revision E021 of 2022) [2022] KEHC 15525 (KLR) (Crim) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15525 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E021 of 2022

LN Mutende, J

November 9, 2022

Between

Gladys Njeri Wanguthi

Applicant

and

Republic

Respondent

Ruling

1. Gladys Njeri Wanguthi, the Applicant, was charged with twelve counts of Obtaining money by false pretence contrary to Section 313 of the Penal Code, and, particulars of each and every count were as follows:Count 1- On diverse dates between 23rd day of October, 2018 and 3rd day of November, 2018 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Stanley Njoroge Wanjuhi a sum Kenya Shillings Eighty Thousand (80,000/-) by falsely pretending that he was a Recruiting Agent in a position to process for him a visa for a job placement as a Security Guard in Afghanistan, a fact she knew to be false.Count 2 - On the 1st day of October 2018 at Gladon Agency Limited, at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud she obtained from Evans Waithaka Karanja sum of Kenya Shillings Seventy Thousand (Ksh. 70,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for him a visa for a job placement as a Security Guard in Dubai, a fact she knew to be false.Count 3 - On the 29th day of August, 2018 at Gladon Agency Limited, at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud she obtained from Ahmed Hussein Mohamed a sum of Kenya Shillings Two Hundred and Fifty Thousand (Ksh.250,000/-)by falsely pretending that she was a Recruiting Agent in a position to process for his daughter, Amina Ahmed Hussein, a visa for a job placement in Canada, a fact she knew to be false.Count 4 – On 24th day of July 2019 at Gladon Agency Limited, at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud she obtained from Josphine Kerubo Oganga a sum of Kenya Shillings Twelve Thousand (Ksh.12,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for her brother Oganga Ogo’nga Josphat a visa for a job placement as a Security Guard in Quatar, a fact you knew to be false.Count 5 – On 23rd day of July, 2019 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Oganga Ong’ong’a Josphat a sum of Kenya Shillings Sixty Thousand (Ksh. 60,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for him a visa for a job placement as a Security Guard in Qatar, a fact she knew to be false.Count 6 – Between 12th day of July, 2018 and 13th July, 2018 Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Stephen Mgosi Ngolo a sum of Kenya Shillings Sixty Five Thousand (Ksh. 65,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for him a visa for a job placement as a driver in Afghanistan, a fact she knew to be false.Count 7 – Between 21st day of September, 2018 and 11th October, 2018 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Kennedy Muruo Njoki a sum of Kenya Shillings Two Hundred and Five Thousand (Ksh.205,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for him a visa for a job placement as a Security Guard in Australia, a fact she knew to be false.Count 8 – Between 27th day of July, 2018 and 28th September, 2018 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Sarah Njeri Mungai Kenya Shillings One Hundred and Five Thousand (105,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for her son Joseph Wamiti Mungai a visa for a job placement as a cleaner in Qatar a fact she knew to be false.Count-9 On diverse dates between 21st day of September, 2018 and 11th October, 2018 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud she obtained from Peter Karuma Nganga a sum of Kenya Shillings Two Hundred and Five Thousand ( Ksh.205,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for him a visa for a job placement as a Security Guard in Australia, a fact she knew to be false.Count 10 - On diverse dates between 29th day of August, 2018 and 27th September, 2018 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Silvster Kariuki Kamau a sum of Kenya Shilling Fifty Five Thousand(Ksh.55,000/-) by falsely pretending that you she was a Recruiting Agent in a position to process for him a visa for a job placement as a Senior Supervisor in Canada, a fact she knew to be false.County 11 - On diverse dates between 29th day of May, 2018 and the 5th day of June, 2018 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Michael Ngui Karanja a sum of Kenya Shillings Thirty Nine Thousand (Ksh.39,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for him a visa for a job placement as a Security Guard in Dubai, a fact she knew to be false.Count 12 - On diverse dates between 14th day of August, 2018 and 25th August, 2018 at Gladon Agency Limited at Portal House along Muindi Mbingu Street in Nairobi within Nairobi County with intent to defraud obtained from Francis Soi a sum of Kenya Shillings Seventy Thousand (Ksh.70,000/-) by falsely pretending that she was a Recruiting Agent in a position to process for him a visa for a job placement as a Security Guard in Dubai, a fact she knew to be false.

2. She denied the charges at the outset, and, having been taken through full trial, she was acquitted of Counts 4,5,6,and 9, but, convicted of Counts 1,2,3,7,8,10. 11,12, and, sentenced as follows:Count 1 - To pay a fine of Ksh. 80,000/- and, in default to serve one (1) year imprisonment.Count II - To pay a fine of Ksh. 70,000/- and, in default to serve one (1) year imprisonment.Count III - To pay a fine of Ksh. 250,000/- and, in default to serve one (1) year imprisonment.Count VII - To pay a fine of Ksh. 205,000/- and, in default to serve two (2) years imprisonment.Count VIII – To pay a fine of Ksh. 105,000/- and, in default to serve one (1) year imprisonment.Count X - To pay a fine of Ksh. 55,000/- and, in default to serve one (1) year imprisonment.Count XI - To pay a fine of Ksh. 30,000/- and, in default to serve three(3) months imprisonment.Count XII – To pay a fine of Ksh. 70,000/- and, in default to serve one (1) year imprisonment.

3. Sentences imposed were ordered to run consecutively.

4. Through a Notice of Motion dated February 16, 2022, the applicant seeks review of sentence so that the sentences meted out on each count can run concurrently.

5. In support of the application, the applicant mitigated. She urged that she has been rehabilitated following programs that she has undertaken, that she is a single parent of three (3) children aged eighteen (18) fourteen (14) and ten (10) years respectively who solely depend on her for moral, financial and spiritual guidance.

6. The application was opposed by the state through Ms. Odour, learned State Counsel, who urged that the sentence was legal and the court having imposed a fine, the alternative sentence could only run consecutively.

7. Revision jurisdiction is conferred on this court by Statute. This jurisdiction that is invoked in a wider sense is provided for by Section 362 of the Criminal Procedure Code (CPC) that provides thus: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.

8. The applicant contravened the provisions of Section 313 of the Penal Code that provides thus:Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.

9. As expressly stated, the applicant committed misdemeanors. Although the sentence provided for is imprisonment; the court acted pursuant to the provisions of Section 28 of the Penal Code. It used discretion bestowed to it and imposed a fine instead of meting out an imprisonment term.

10. Section 28(1)(a) (2) of the Penal Code provides that:1. Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply—a.Where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;(2)In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) ordered by a court in respect of the non- payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale— Amount Maximum periodNot exceeding Sh. 500 ... ... .. .. 14 daysExceeding Sh. 500 but notexceeding Sh. 2,500 ... ... ... 1 monthExceeding Sh. 2,500 but not exceedingSh. 15,000 ... ... ... .... 3 monthsExceeding Sh. 15,000 but not exceedingSh.50,000 ... ... ..... 6 monthsExceeding Sh. 50,000………. 12 months

11. The custodial term that corresponds with any fine that exceeds Ksh. 50,000/- being twelve (12) months imprisonment; On Count-4, the trial court having imposed a fine of Ksh. 205,000/- and, in default two (2) years imprisonment, it was erroneous. The illegality must therefore be rectified.

12. For an appellate court to interfere with a sentence passed by a trial court, it must have been excessive or wrong principles must have been applied. In the case of Shadrack Kipkoech Kogo Vs. Republic, Eldoret Criminal Appeal No. 2003 the Court of Appeal stated that“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court take into account an irrelevant factor that the wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle and must be interfered with (See also Sayaka –Vs- R[1989] KLR 306).”

13. In the premises, the sentence on Count 3 must beinterfered with. I therefore correct the alternative sentence by setting it aside which I substitute with one (1) year imprisonment.

14. On the question of the sentence running either Consecutively or concurrently, Section 14 of the CPC provides that:1. Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.2. In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.3. Except in cases to which section 7(1) applies, nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences— (a) of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or (b) of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose. (4) For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

15. Paragraph 7:13 and 7:14 of the Judiciary Sentencing Police Guidelines provide as follows:7. 13Where the offences emanate from a single transaction, the sentences should run concurrently. However, where the offences are committed in the course of multiple transactions and where there are multiple victims, the sentences should run consecutively.7. 14The discretion to impose concurrent or consecutive sentences lie in the court.”

16. The applicant herein committed similar offences but at different times. The offences related to different complainants. The offences were not committed in the same transaction. In the result, the sentences cannot run concurrently. As afore stated, the only variance will be in respect of Count-4, where the default sentence will be one(1)year imprisonment. Save for the order above, the application for sentences to run concurrently stands dismissed.

17. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 9TH DAY OF NOVEMBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Adhiambo for DPPCourt Assistant – Mutai