John Kamande Mwangi Miano v Republic [2013] KEHC 1126 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL  NO. 217  OF 2012

JOHN KAMANDE MWANGI MIANO     …………………………APPELLANT

VERSUS

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

(APPEAL ARISING FROM THE JUDGMENT OF THE SENIOR  RESIDENT MAGISTRATE COURT AT  BARICHO   BY J.N. MWANIKI   – CRIMINAL CASE NO.  464   OF 2010 ON  7/6 /2010)

JUDGMENT

JOHN KAMANDE MIANO , the appellant  herein had been charged  in the lower court with  the offence of burglary contrary to section   304(2) and stealing Contrary to section  279(b) of the penal code .

The particulars of the offences as stated  in the charge  sheet are as follows:-

JOHN KAMANDE MIANO:  On the night of 4th  day of June , 2010 at Sagana Town In Kirinyaga District  within Central Province broke and entered the hotel of JASON KIARO GICHAI  with  the intent to steal therein and did steal therein one radio make TOPSONIC , one hurricane  lamp , 18 pancakes and 30 snacks  the property of the said JASON KIARO GICHAI all being the value  of Kshs 1430/-

When the appellant was arraigned before the Senior Resident Magistrate’s court at Baricho on 7th June, 2010 , the charge sheet and particulars  thereof  were read  over to him and he pleaded guilty  to the offences as charged.  He was consequently  convicted  on his own plea of guilty and was sentenced to serve a period  of 7 years imprisonment  for each limb  of the offence .  The term of imprisonment  was to run concurrently .

The appellant was dissatisfied  with the conviction and sentenced imposed by the trial court .  He filed  the present appeal citing the following grounds:-

The Learned trial magistrate erred  in law and in facts when he convicted me by not  failing considering that even the accused could have possessed the alleged stolen item as there was no document produced in court  to show that the exhibit belongs to the complainer.

The Learned trial magistrate erred in law and in facts by failing to summon a key witness  who was alleged to be the buyer of the alleged stolen item.

The Learned trial magistrate  erred in law and in facts when convicting me as he relied on a single  evidence i.e.  P.W1 who was the watchman and P.W2 who is the complainer.

The learned trial magistrate erred in law and in facts by not considering that my human rights  were violated as I was kept in  police  custody for four days  instead of 24 hours.

The learned trial magistrate erred in law and in facts by failing to consider my defence which was not shaken by the prosecution side.

The learned magistrate erred in law and in facts by not considering that the accused and the complainer PW1 had a long tern grudge as the former was once an employee of the complainant .

When the appeal came up for hearing today  in the morning, the appellant  abandoned  his appeal on conviction and urged the court to review  the sentence  imposed on him by the learned trial magistrate.  He alleged that the sentence  was too long and ought to be reduced .  He claimed that he had served  a period  of 3 years and 4 months in prison  during which time  he had learnt that crime  does not pay and pledged  not  to commit any other offence in future.

Mr Sitati learned state Counsel  in his submissions before  the court  opposed the appellant’s  appeal against sentence mainly on grounds that the sentence  passed  by the trial court  was lawful and lenient  considering that an offence  of burglary attracts a penalty of 10 years  imprisonment .  Though acknowledging that the appellant  was a first offender , counsel  nevertheless  urged the court to dismiss  the appeal and uphold  the sentence.

Having perused  the record of the lower court and considering the grounds cited by the appellant  in the support of appeal, It is my view that the said grounds  appear misconceived  or  to say the least misplaced  since they are already meant  to support  an appeal conducting a full criminal trial but not a conviction  based on the appellants own plea of guilt  like in the one which  was challenged by the appellant  in this case.

It is therefore apparent that the appellant herein  made the right decision in abandoning his appeal on conviction.

Turning to his challenge on the sentence meted out  against him by the learned trial magistrate , I have carefully considered the oral submissions  made by the appellant in support of his appeal against the sentence and the submissions in opposition  thereto by the learned  state counsel

I have noted that the state has confirmed to this court through submissions by Mr Sitati  that the appellant  was infact a first offender.

I have also considered that fact that the stolen items  were recovered and the trial court made an order that they be released to the complainant  herein .  The stolen items  were valued at Kshs 1430/- .  Given the value of the stolen items  and the fact that they were recovered and considering  that the appellant was a first offender , I am persuaded  to find that the sentence of 7 years imprisonment imposed  by the learned  trial magistrate  for each limb of the offence  though lawful was  manifestly harsh and excessive in the circumstances of this case.

The record  shows that the appellant was convicted and sentenced on 7. 6.12.  This means that he has now served a period of  3 years and 4 months imprisonment.

I find that the period already served  is sufficient  punishment  for the offences  threw appellant committed.   The appellant in his submissions  claimed that the period he has served  in prison has helped him realize that crime does not pay.  He claimed that he is now a reformed  man and pledged not to commit any offences in future.

I wish to observe that in determining  the kind of sentence to impose on an accused person, the trial court must be guided by several principles .  One of those principles is that sentence should b e geared towards reforming  the accused person.  If the court were to accept  the appellant’s word that the time  he has spent  in prison has  helped  him reform and he is now ready to be a law abiding citizen, it would follow that one of the most important objectives  of sentencing  has been met in this case.

In view  of the foregoing, I am inclined  to allow the appeal against the sentence  imposed  on the appellant  in this case.

I set aside the sentence  and substitute it with the period already  served.

I therefore direct that the appellant be released  forthwith  unless otherwise lawfully held .

C. GITHUA

JUDGE

15. 10. 2013

AT 2. 30 P.M.

BEFORE C.W GITHUA – JUDGE

C.C. KARIUKI

Appellant present

Mr Sitati for the state also present

Interpretation : English/Kikuyu

COURT- Judgment , read signed  and delivered  in open court