[2024] KEHC 3705 (KLR)

Wanyonyi v Republic (Criminal Appeal E088 of 2022) [2024] KEHC 3705 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3705 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E088 of 2022

AC Mrima, J

April 5, 2024

Between

Andrew Juma Wanyonyi

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. S. N. Makila (Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. E721 of 2022 delivered on 15{{^th}} December, 2022)

Judgment

Background: 1. The Appellant herein, Andrew Juma Wanyonyi, was charged alongside one Joel Wekesa Ndinyo [as Co-accused] with two counts in Kitale Chief Magistrates Court Criminal Case No. E721 of 2022 (hereinafter referred to as ‘the criminal case’).

2. The offences were Burglary contrary to Section 304(2) of the Penal Code and Stealing contrary to Section 279(B) of the Penal Code. The offences were allegedly committed in the night of 6th February 2022 at Barbaton village within Kiminini Sub-County.

3. The two counts related to two complainants. They were Zacharia Wekesa the owner of a Cyber Shop and Sara Nekesa Wamalwa, the owner of a Salon shop. Their respective premises were broken into and various goods stolen therefrom.

4. The accused denied both counts and were tried. However, the Appellant herein changed his plea midway and admitted both counts. Guilty pleas were entered on 22nd March 2022 and matter set for facts on a later date.

5. Due to the fact that the Prosecution wished to rely on some CCTV footages and photographs generated therefrom, coupled with the fact that the other accused had not admitted the charges, the matter was instead fully heard.

6. Both accused were placed on their defenses. The Appellant herein gave an unsworn defence whereas his co-accused gave a sworn testimony. No witnesses were called.

7. In a judgment rendered on 15th December 2022, the Appellant was found guilty as charged and duly convicted. He was sentenced to 5 years’ imprisonment on each count. The sentences were to run concurrently. The co-accused was found not guilty and accordingly acquitted.

The Appeal: 8. The Appellant was aggrieved by the sentence. He subsequently lodged an appeal.

9. In his Petition of Appeal, the Appellant challenged the sentence to the extent, and so alleged that, it was excessive and harsh. He prayed for a lenient sentence preferably an out of Court one.

10. During the hearing of the appeal, the Appellant relied on his written submissions which he filed on 20th November, 2023. He reiterated his plea for a lenient sentence.

11. On the part of the prosecution, through its extensive written submissions dated 20th June, 2023, it contended that the conviction was safe and that all the ingredients of the offence had been proved as required in law. It also submitted that the sentence was lawful and in fact pointed that the sentence was lenient given the gravity of the offence. It urged that the appeal be dismissed.

Analysis: 12. The appeal herein is basically on sentence.

13. The Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

14. I have considered this matter with caution and care. The trial Court was careful in the manner it conducted the sentencing proceedings.

15. The Court considered the nature of the offence and the mitigation, among other relevant actors.

16. Sentencing is a crucial part in the criminal process and the administration of justice. It is also discretionary. In exercising the discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR.

17. This Court does not see how the sentencing proceedings are to be impugned. This Court, however, posits that it would have been more assuring for the Court to have called for a Pre-Sentence Report given the gravity of the offence and the possible sentence. Although that did not happen, given the nature of the offence and the manner in which it was committed and the fact that no recoveries were made, the sentence rendered cannot be faulted.

18. Therefore, the appeal on sentence hereby fails.

Disposition: 19. In the end, the following final orders of this Court do hereby issue: -a.The entire Appeal is dismissed.b.This file is hereby marked as CLOSED.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 5TH DAY OF APRIL, 2024. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Andrew Juma Wanyonyi, the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.