Josephat Nyakaba Miyaba v Republic [2018] KEHC 9213 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO. 31 OF 2012

(An Appeal arising out of the conviction and sentence of Hon. Faith Munyi –PM delivered on 6th March 2012 in Nairobi CMC. CR. Case No.291 of 2011)

JOSEPHAT NYAKABA MIYABA…APPLICANT

VERSUS

REPUBLIC…………………….....RESPONDENT

RULING

The Applicant, Josephat Nyakaba Miyaba was charged and convicted on his own plea of guilty of 11 counts of making false documents contrary to Section 357(a) and uttering false documents contrary to Section 357(b) of the Penal Code. The charges arose from the Applicant’s fraudulent conduct in duping certain persons that he was in a position to secure them recruitment as officers of the Kenya Wildlife Service. The Applicant was sentenced to serve 18 months on each of the count. The sentences were ordered to run consecutively. It is this order that the sentence run consecutively that prompted the Applicant to file the present application seeking to have this court to direct that he serves a concurrent instead of consecutive sentences.

During the hearing of the application, the Applicant urged the court to take into consideration that the charges that he was convicted of arose from the same set of transactions. There was no basis upon which the trial court could have ordered that the sentences run consecutively and not concurrently. He told the court that he was remorseful. At the time of the charge, he was a student. He had learnt his lesson. He had undertaken several courses while in prison and had infact completed a degree course. Ms. Sigei for the State opposed the application. She submitted that the offences that the Applicant was charged with were serious and deserved the sentence that the trial court ordered the Applicant to serve. She urged the court to dismiss the application.

When the trial court sentenced the Applicant, it was exercising judicial discretion. As was held by the Court of Appeal in Ahmad Abolfathi Mohammed & Another –vs- Republic Criminal Appeal No. 135 of 2016(unreported) at Page 25:

“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard KimaniGacheru v. Republic, Cr App No.188 of 2000this Court stated thus:

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these  alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated is shown to exist.”

In the present application, this court has no doubt that the trial court had jurisdiction to sentence the Applicant to serve the custodial sentences that he was sentenced to serve. The trial court properly exercised its discretion at the time, taking into consideration the prevalence of similar types of offences that were being committed at the time. However, it is now 6 years since the Applicant was convicted to serve the custodial sentence. In the period, he has learnt his lesson. He tells the court that he has reformed. He has undertaken several courses while in prison that will assist him to be a useful member of society upon his release. This court formed the opinion that the Applicant has been sufficiently punished. He has paid back to society for the crimes that he committed. Another factor that influenced the court in this decision is the fact of the Applicant pleading guilty to the charges. By doing so, he saved precious judicial time. The admission of guilt exhibits the Applicant’s remorse and readiness to own up to the crimes that he had committed.

In the premises therefore, this court finds the Applicant’s application has merit. The Applicant’s custodial sentence is commuted to the period served. The Applicant is ordered set at liberty and released from prison forthwith unless otherwise lawfully held. It is so ordered.

DATED AT NAIROBI THIS 25TH DAY OF MAY 2018

L. KIMARU

JUDGE