Harry Kiondo Mwang’ombe v Republic [2017] KEHC 2736 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CRIMINAL REVISION CASE NO 9 OF 2017

HARRY KIONDO MWANG’OMBE...................APPLICANT

VERSUS

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

RULING

1. The Applicant was charged with the offence of malicious damage to property contrary to Section 339 (1) of the Penal Code.  He had been charged with damaging his biological father’s thermos and chair worth 2,000/- on 1st July 2017. He pleaded not guilty to the charge.

2. After the trial, the Learned Trial Magistrate Hon N N Njagi, Senior Principal Magistrate sentenced him to four (4) years imprisonment.  The Learned Trial Magistrate was not persuaded by the Probation Report of Kanampiu K Ezekiel in which he had recommended that the Applicant be placed on probation as arrangements were being made to take him to a Rehabilitation Centre.

3. As rightly observed by Miss Anyumba for the State, a person who is convicted of the offence under Section 339 (1) of the Penal Code is liable to five (5) years imprisonment.  The term “liable to” connotes the maximum sentence but notthe mandatory sentence.  The Probation Report indicated that the Applicant was most suited for Probation.  He damaged goods worth Ksh 2,000/-.  It is my view that the sentence of four (4) years imprisonment was not commensurate with the value of the goods that he damaged and it was manifestly excessive warranting this court to interfere with the same.

4. Accordingly, I hereby set aside and vacate the sentence of four (4) years imprisonment that the Learned Trial Magistrate had imposed on the Applicant and hereby replace the same with an order that he be placed on probation for one (1) week.  As the Applicant has since been in prison for about two and a half (2 ½) months, I hereby direct and order that he be set free forthwith unless he be held for any other unlawful cause.

5. Orders accordingly

DATED and DELIVERED at VOI this 11thday of October2017

J KAMAU

JUDGE

In the presence of:-

Harry Kioko Mwang’ombe -  Applicant

Miss Anyumba -  for State

Josephat Mavu – Court Clerk