James Ndung’u Kamau, Peter Kamau Ndung’u & Irungu Mwangi v Republic [2017] KEHC 1834 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEALS NOs 202  OF 2013, 220”A” OF 2013 and 220”B” OF 2013 (CONSOLIDATED)

(From original conviction and sentence in Kigumo SPM Criminal Case No 1679 of 2010 – S Mbungi)

1. JAMES NDUNG’U KAMAU

2. PETER KAMAU NDUNG’U

3. IRUNGU MWANGI…………………………......…………….APPELLANTS

VERSUS

REPUBLIC………………….………………................…...…RESPONDENT

J U D G M E N T

1. The Appellants herein, James Ndung’u Kamau, Peter Kamau Ndung’uand Boniface Irungu Mwangi, were convicted after trial of simple robbery contrary to section 296(1) of the Penal Code.  They were each sentenced on 26/07/2011 to seven (7) years imprisonment.  They each appealed against conviction and sentence.

2. On 27/11/2017 when their appeals came up for hearing, the Appellants abandoned their appeals against conviction, which were then dismissed.  They proceeded with the appeals against sentence.  They all made pleas to this court to reduce their sentences which they had now served for over six (6) years and four (4) months.  There is no remission in robbery cases, so they would have to serve the full sentences.  All the Appellants pleaded that they have now learnt useful trades while in prison and will be able to earn honest living when they rejoin society in freedom.

3.  Learned prosecution counsel pointed out that the value of the one mobile phone and cash stolen was relatively low at just over KShs 6,000/00, and that there was no undue violence used in the commission of the offence.

4.  I note that all the Appellants were relatively young adults when they committed the offence.  They are all remorseful and contrite, and they have learnt useful trades in prison that will enable them to earn honest livelihoods once they rejoin society in freedom.

5. I consider that in the special circumstances of this case the sentence of seven (7) years imprisonment meted out to each Appellant, and which would have to be served without remission, was manifestly harsh and excessive.  I will therefore set aside those sentences and substitute therefor imprisonment for six (6) years and four (4) months for each appellant, effective from 26/07/2011, the date of their original sentencing.  This will enable each Appellant to be set at liberty forthwith unless otherwise lawfully held.

6.  To that limited extent only are the appeals against sentence allowed.  It is so ordered.  The appeals against conviction were dismissed on 27/11/2017.

DATED, SIGNED AT MURANG’A THIS 30TH DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS  1ST DAY OF DECEMBER 2017