[2023] KEHC 26927 (KLR)

Wanjiru v Republic (Criminal Revision E098 of 2023) [2023] KEHC 26927 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26927 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Revision E098 of 2023

LM Njuguna, J

December 13, 2023

Between

Leaflyth Wanjiru

Applicant

and

Republic

Respondent

Ruling

1. The applicant has filed an undated notice of motion seeking review/ setting aside of the sentence in Siakago Criminal Case No. E292 of 2023 and replace the same with community service orders. The application is premised on the grounds that the applicant was convicted on her own plea of guilty and sentenced to serve 1 year imprisonment on the first count and 6 months imprisonment on the second count to run consecutively and the trial magistrate did not give her the available option of paying a fine.

2. The applicant was charged with two counts. The first count was being in possession of uncustomed goods (Santa King) contrary to section 200(d) of the East Africa Community Customs Management Act 2004 and the particulars are that on 18th April 2023 at around 9. 00a.m at Kwa Mukiria Market, Ndurumori location, in Mbeere North Sub County within Embu County, the applicant was found selling alcoholic drinks being 15 bottles of Santa King which are uncustomed goods. The second count was being in possession of excisable goods (Santa King) that has been acquired in contravention of section 39(5) as read together with section 41 of the Excise Duty Act 2015. The particulars of the second count are that on 18th April 2023 at around 9. 00a.m at Kwa Mukiria Market Ndurumori Location in Mbeere North Sub county within Embu County, the applicant was found in possession of alcoholic drinks (15 bottles of Santa King) acquired in contravention of the Excise Duty Act.

3. At the trial, the applicant pleaded guilty to both counts and she was convicted on her own plea of guilty. She was sentenced to 1-year imprisonment on the 1st count and 6 months imprisonment on the 2nd count, the sentences to run consecutively. The applicant gave her mitigation and the trial court noted the same, stating that since the applicant is a proven repeat offender having been fined in the past, that the option for a fine this time will not make a positive impact.

4. The respondent filed grounds of opposition dated 09th October 2023, opposing the said application stating that there is no irregularity or impropriety in the trial court’s imposition of the sentences. That the sentences are not harsh or excessive in the circumstances, the applicant having pleaded guilty to the charges.

5. The application herein was canvassed by way of written submissions and both parties complied.

6. The applicant submitted that she has an 85-year-old mother who needs constant help and that she is also the sole breadwinner of her children among whom is a son who is attending college. She urged the court to consider the options available to her and the mitigation and grant her a non-custodial sentence.

7. The respondent relied on section 200(d) of the East Africa Community Customs Management Act 2004 and the punishment prescribed therein and stated that the trial magistrate had the option of imposing a fine or imprisoning the applicant or both. It cited the cases of PMM Vs. Republic(2018) eKLR, Opoya Vs. Uganda (1967) EA 752 and Shadrack Kipkoech Kogo Vs. Republic Criminal Appeal No. 253 of 2003 and argued that the High Court should not interfere with the sentences imposed by the trial court unless the same were based on an illegality. That the trial magistrate judiciously exercised his discretion on sentencing and the sentences should be upheld.

8. From the foregoing, the issue for determination is whether this court has the power to review the sentences meted out to the applicant.

9. The High Court’s supervisory jurisdiction in criminal cases is established under section 362 of the Criminal Procedure Code as follows:“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. Sentencing is at the discretion of the trial magistrate who in this case, already exercised his discretion. In the Malaysian case of Public Prosecutor Vs. Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735 it was held:“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case”.

11. I have perused the proceedings of the trial court and note that the applicant indeed pleaded guilty and was convicted on her plea of guilty. The prosecution informed the court that the applicant is a repeat offender as opposed to the averments made in her submissions that she is a first-time offender. When asked about the previous similar offences she has been charged with and fined, she accepted the same as truth. The trial magistrate noted the mitigating factors before imposing the sentence and stated that“The accused person is a serial repeat offender in respect of whom sentences of fine seem not to have had a positive impact, I shall hereby sentence her to imprisonment as follows……..”

12. On the first count, section 200(d) of the East Africa Community Customs Management Act 2004 prescribes a sentence of not more than 5 years or a fine equal to fifty percent of the dutiable value of the goods involved, or both. On the 2nd count section 41(1) of the Excise Duty Act prescribes a fine of not more than five million shillings or imprisonment for not more than 3 years, or both. In my view, the trial magistrate was lenient in imposing the sentences given the fact that the applicant is a repeat offender. I do not think the sentences are harsh and excessive.

13. In the end, I find that the application lacks merit and it is hereby dismissed. The trial court’s finding on sentences on both counts is hereby upheld.

14. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF DECEMBER, 2023. L. NJUGUNAJUDGE………………………………………for the Applicant……………………………………………for the Respondent