Joseph Gitau Kariri v Republic [2017] KEHC 5137 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO. 151 OF 2016

JOSEPH GITAU KARIRI…...…........................................APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in Gatundu Senior Resident Magistrate’s Court Criminal Case No. 484 of 2011byD. M.Ndungi Ag. S R M on 24/06/15)

J U D G M E N T

1. The Appellant, Joseph Gitau Kariri, was charged with the offence of Demanding Property by Written Threats, contrary to Section 299 of the Penal Code.

2. The brief facts giving rise to the charge were that on the 15thSeptember, 2011a letter addressed toJohn Ndanyo Gitauwas delivered to his home. The content of the letter was a demand of Kshs. 50,000/=.    Failure to give the money would result into his family members being kidnapped and a ransom of Kshs. 2 million demanded. On 23rd  September, 2011 a second letter was found at the gate. The demand was forKshs. 80,000/=.The matter was reported to the Criminal Investigation Directorate which investigated and arrested the Appellant. Subsequently he was charged. He was taken through full trial, found guilty, convicted and sentenced to serve four (4) years imprisonment.

3. Being  dissatisfied  with  the  conviction  and  sentence  he appealed.

4. At the hearing of the Appeal, the Appellant who was unrepresented abandoned the Appeal against the conviction and mitigated on sentence. He submitted that he was a first offender, he has undergone rehabilitation and acquired skills that will assist him take care of his family.

5. In response, learned State Counsel Ms. Maundu submitted that the sentence imposed was fair considering that the Act provides for a sentence of fourteen (14) years imprisonment. However, she left it to the Court to exercise its discretion.

6. I am duty bound to reconsider what is on record bearing in mind that I did not hear the Appellant mitigate on sentence in the      Lower Court and then come up with my own determination.

7. The principles upon which an Appellate Court may interfere with sentence imposed by the Lower Court were stated in the case of Ogola s/o Owoura vs. Reginum (1954) 21 270 thus:

“The principle upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly 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 differentsentence  and  it  will  not  ordinarilyinterfere with the discretion exercised by a trial Judge unless as was said in James  vs.  Republic  (1950)  18  EACA

147.

“It is now settled law that sentence is a matter of discretion of the trial court and must be based on the facts and circumstances of each case. An appellate court will not normally interfere with sentence unless the sentence is manifestly excessive or is based on wrong principles.”

8. A sentence meted out by a Court should be just and proportionate to offence committed.

9. A person who commits the offence of Demanding Property by Written Threatsis liable to imprisonment forfourteen (14) years.In the instant case the Appellant was a first offender. The learned trial Magistrate in an endeavour to get evidence in mitigation that would inform him of which sentence to pass, gave the Appellant the opportunity to present the same. He had nothing to state which was an indication of not being remorseful.

10. The sentence meted out was legal as it was proportionate to the offence committed. In the result, the Appeal lacks merit and is hereby dismissed.

11. It is so ordered.

Dated, SignedatKituithis20th day ofApril,2017.

L. N. MUTENDE

JUDGE

Dated, SignedandDeliveredatKiambuthis12th  day ofJune,2017.

PROF. J. NGUGI

JUDGE