Boniface Wambua Nthuku v Republic [2014] KEHC 6851 (KLR)

206/2014

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 88 OF  2013

BONIFACE WAMBUA NTHUKU.....................................APPELLANT

VERSUS

REPUBLIC .......................................................................RESPONDENT

(Being an appeal from the original conviction and sentence in Kithimani Principal Magistrate’s Court Criminal Case No.  48 of  2013 by Hon. M.A.O. Opanga  Ag. SRM on 29/1/2013)

JUDGMENT

The Appellant was charged with the offence of Arsoncontrary to Section 332(a) of the Penal Code.  Particulars of the offence being that on the 22ndday of January, 2013 at Baringo village within Machakos County wilfully and unlawfully set fire to a building namely a dwelling house of Patrick Waita Nthuku .

He admitted the charge.  He was convicted and sentenced to serve seven (7) years imprisonment.

Being aggrieved by the sentence he now appeals on the following grounds :-

The sentence passed was harsh and excessive

He is remorseful

He is ready to comply with any conditions to be imposed by the court.

He is a family man with responsibilities to his family.

Mrs Abuga, counsel for the State opposed the appeal arguing that the plea taken was unequivocal and the sentence passed was within the law.  She prayed for dismissal of the appeal.

I have to reconsider what circumstances made the trial court impose the sentence in issue this being the first appellate court (see Okeno versus Republic [1972] E.A. 32).

The court considered facts presented by the prosecution and formed an opinion that the act of the accused was deliberate hence the sentence meted out.

In the case of S.V. Sangweni 2010 (1) SACR 419 it was held thus;-

“A long term of imprisonment should emphasize the seriousness of the offence sufficiently and, at the same time serve the community interest.  Such a sentence will also take due account of the need to give the appellant an opportunity and a chance to rehabilitate”.

In another case of S.V. Mnisi 2009(2) SACR 227(SCA) it was held thus:-

“So far as individual deterrence is concerned, the evidence does not suggest that the appellant has a propensity for violence or is a danger to society.  He is a first offender and given the unusual circumstances of the case is unlikely again to commit such an offence.”

This is a matter where the appellant pleaded guilty at the outset hence saving courts time.  He was a first offender. No evidence was adduced to portray him as a violent person who was dangerous to the society.

The law provides for a sentence of upto life imprisonment. However, the appellant herein being remorseful is capable of rehabilitation. In the circumstances, this calls for interference with the sentence imposed.  I therefore set aside the sentence imposed and substitute it with a sentence of three (3) years imprisonment.

It is so ordered.

DATED, SIGNED and DELIVEREDat MACHAKOS this 19THday of FEBRUARY 2014.

L.N. MUTENDE

JUDGE