Henry Okello Wandera v Republic [2018] KEHC 6656 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO. 38 OF 2016

HENRY OKELLO WANDERA.............................................APPELLANT

VERSUS

REPUBLIC..................................................................................REPUBLIC

(From the original conviction and sentence in Criminal case No. 138 of 2016 of the Chief Magistrate’s Court at Busia by Hon. H.N Ndung’u (miss) – Chief Magistrate)

JUDGMENT

1.  The appellant,HENRY OKELLO WANDERA, was convicted after pleading guilty to a charge of stealing a motor cycle contrary to section 278A of the Penal Code.

2. The particulars of the offence were that on 22nd November 2015 at Township village, Township Location of BUSIA County,  stole one motor cycle registration number KMDG 716X valued at Kshs. 103,000/= the property of PASCAL OGUTU OUMA.

3. He was sentenced to serve thirty six months imprisonment.

4. The appellant was in person. He appealed against the sentence which he contended was harsh and excessive.

5. The state opposed the sentence through Ms. Ngari, learned counsel.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.

7. It is trite law of practice that an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances. These circumstances were well illustrated in the case of NILSSON VS REPUBLIC [1970] E.A. 599,601 as follows:

The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established.  The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor!  To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case.  R v Shershewsity (1912) C.CA 28 T.LR 364.

8. Section 278A of the Penal Code provides as follows:

If the thing stolen is a motor vehicle within the meaning of the Traffic Act (Cap. 403), the offender is liable to imprisonment for seven years.

A motor cycle is a motor vehicle within the meaning of the Traffic Act.

The sentence that was meted out by the learned trial magistrate cannot be described as harsh or excessive. I have no reason to interfere with it.

9. The upshot of the foregoing is that the appeal is accordingly dismissed.

DELIVEREDandSIGNEDatBUSIAthis17thdayof May, 2018

KIARIE WAWERU KIARIE

JUDGE