Janson Malakha v Republic [2018] KEHC 4969 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL APPEAL NO. 19 OF 2017

JANSON MALAKHA...............................APPELLANT

VERSUS

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

(From the original conviction and sentence in criminal case No. 626 of 2016 of the

Chief  Magistrate’s Court at Busia  by Hon. Washika Wachira– Senior Resident Magistrate)

JUDGMENT

1. The appellant,JANSON MALAKHA,was convicted of the offence of handling stolen property contrary to section 322(2) of the Penal Code.

2. The particulars of the offence were that on 15th March 2016 at SIEMBEREROvillage, SIEMBERERO Sub location within KAKAMEGA County, otherwise than in the course of stealing, dishonestly assisted in the disposal of one motor cycle registration number KMCX 062N  knowing it to have been stolen.

3. He was convicted after trial and sentenced to pay a fine of Kshs. 60,000/= or in default to serve four years imprisonment.

4. He now appeals against the sentence which he claims was harsh and excessive.

5. The state conceded the appeal through Mr. Owiti, the learned counsel.

6. The facts of the prosecution case were briefly as follows:

The complainant and the first accused were known to each other. The latter went to the complainant and requested to use his motor cycle to ferry some timber. It would appear he was duped. The motor cycle and the first accused disappeared. Later, when he was arrested, he led to the recovery of the motor cycle in the house of the appellant. The tyres had been removed. The appellant was arrested.

7. Section 322(2) of the Penal Code provides as follows:

A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years

8. An appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of NILSSON vs. REPUBLIC [1970] E.A. 599, 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 Vs. 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 Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.

9. The sentence imposed cannot be termed as harsh in view of the maximum provided by the law. However, the learned trial magistrate having opted to fine the appellant, she ought to have complied with the provisions of section 28 (2) of the Penal Code which provides the maximum default sentence where a fine has been imposed. It states as follows:

In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—

Amount                                                                                              Maximum

Not exceeding Sh.500 ………………………………………..          14 days

Exceeding Sh.500 but not exceeding Sh.2,500 ……………            1 month

Exceeding Sh.2,500 but not exceeding Sh.15,000 …………           3 months

Exceeding Sh.15,000 but not exceeding Sh. 50, 000 ………          6 months

Exceeding Sh.50,000 ………………………………………             12  months

From this scale, the accused ought to have been given a default sentence of 12 months imprisonment.  I therefore substitute the default sentence to 12 months imprisonment as provided for by the law. The appeal succeeds to this extent only.

DELIVERED and SIGNED at BUSIA this 19th day of April, 2018

KIARIE WAWERU KIARIE

JUDGE