[2022] KEHC 10635 (KLR)

Wanjiru & another v Republic (Criminal Appeal 41 of 2020 & E017 of 2022 (Consolidated)) [2022] KEHC 10635 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10635 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 41 of 2020 & E017 of 2022 (Consolidated)

HPG Waweru, J

June 16, 2022

Between

Daniel Muriuki Wanjiru

1st Appellant

Isaack Gichuki

2nd Appellant

and

Republic

Respondent

(Appeal from original Sentence in Nanyuki CM Criminal Case No 703 of 2019 – V M Masivo, RM)

Judgment

1. The appellants herein, Daniel Muriuki Wanjiru and Isaac Gichuki (respectively the 1st and 2nd accused in trial court) were convicted upon their own plea of two counts of stealing from the person contrary to section 279 (a) of the Penal Code. The particulars of the two charges were that on June 10, 2019 at Nanyuki Law Court cells in Laikipia East Sub-County they jointly stole a wrist watch make Casio valued at KShs 8,000/00 from the person of Peter Wambugu (Count I) and a mobile phone make ITEL valued at KShs 1,500/00 from the person of David Maina (Count II).

2. On November 22, 2019 the appellants were each sentenced to five (5) years imprisonment on each count, the sentences to run consecutively, a cumulative sentence of ten (10) years imprisonment for each appellant. They have appealed against the sentence only upon the ground that they are manifestly harsh and excessive, particularly the order that the sentences do run consecutively.

3. Learned counsel for the respondent submitted that the sentence on each count was lawful. He pointed out that the maximum provided for is 14 years imprisonment whereas the appellants got only 5 years. He also submitted that the order that the sentences on each count do run consecutively was also lawful as the complainant was different in each count. However, he did not support the order and opined that the sentences ought to run concurrently as the offences were committed at the same place and time.

4. I have considered the above submissions. I also note that the two stolen items were immediately recovered. There was no violence at all involved in the thefts.

5. The appellants were young men with young families (now 31 and 34 years old respectively). They pleaded guilty and thus saved the court valuable trial time. A plea guilty is, by the nature of it, a show of remorse and contriteness; it therefore ought to count for much as far as sentencing is concerned.

6. I have looked at the trial court’s notes on sentencing. The court appeared quite miffed by the fact that the appellants dared to commit offences within he hallowed precincts of the court. It is to be noted that the appellants and the complainants were part of a group of accused persons held in the court cells awaiting appearances in the various courts. It was not that the appellants were part of a gang as the trail court seemed to think; nor did they steal from “naïve persons who were due to take plea”, as the court stated. They stole from fellow offenders!

7. It is apparent to this court that the offended attitude of the trial court resulted in sentences that were manifestly harsh and excessive in the circumstances. The order that the sentences do run consecutively was also manifestly harsh and excessive in the circumstances of the case.

8. In the result I will partially allow the appeals against the sentences as follows –a.The sentence of five (5) years imprisonment for each count is set aside. A sentence of the time already served is hereby substituted for each count.b.The order that the sentences do run consecutively is hereby set aside, and an order that the sentences do run concurrently substituted.

9The net result is that each appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 15TH DAY OF JUNE 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 16TH DAY OF JUNE 2022