Josphat Rotich v Republic [2022] KEHC 1358 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION-MILIMANI

CRIMINAL REVISION NO. E029 OF 2022

JOSPHAT ROTICH.....................................................................................APPLICANT

VERSUS

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

RULING

1. Josphat Rotich, the applicant was charged as follows:

Count 1- Impersonation contrary to Section 382 of the Penal Code. Particulars being that on the 8th of August 2021 at Kawangware Msalaba in Dagoretti Sub-County within Nairobi County, with intent to defraud, falsely represented himself to No. 110300 P.C Brandon Ngeno as a member of National Police Service (NPS) the information he knew to be false.

Count 2 – Possession of public stores contrary to Section 324(2) as read with Section 36 of the Penal Code.

Particulars being that on the 8th of August 2021 at Kawangware Msalaba in Dagoretti Sub-County, had in his possession public stores namely a pair of handcuffs, of the National Police Service, property being reasonably suspected of having been stolen.

2. He admitted   the charges at the outset and was sentenced thus:

Count I – To pay a fine of Kshs. 100,000/- and in default to serve one (1) year imprisonment.

Count II – To pay a fine of Ksh. 100,000/- and in default to serve one (1) year imprisonment.

3. Through an application dated 3rd  January, 2022 he seeks review of the sentence on the grounds that if released on probation he would seek to reconcile with the other party;  He has undergone various courses in the correctional facility and  his family has suffered irreparably since his wife has no source of income.

4. The application is opposed.  Ms. Ntabo, learned counsel for the State urges that the sentence imposed is lenient as the offence attracts three (3) years imprisonment.  Therefore no illegality has been shown.

5. The revisionary jurisdiction of this court that is limited to rectifying irregularities, illegalities and impropriety on record is donated by Section 362 of the Criminal Procedure Code (CPC) which provides that:

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

6. The applicant contravened Section 382 of the Penal Code that provides thus:

(1) Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of a misdemeanour.

(2) If the representation is that the offender is a person entitled by will or operation of law to any specific property and he commits the offence to obtain such property or possession thereof, he is liable to imprisonment for seven years.

7. The offence is stated to be a misdemeanor which would attract up to three years imprisonment. Facts of the case were that:

“On 8th August, 2021 at 11. 00 am Police Officers on patrol within Msalaba area came across accused.  They stopped him and identified themselves.  Upon search they found a pair of handcuffs from accused.  Accused said he was a Police Officer attached to Muthangari Police Station.  He had no proof and was arrested and charged…….”

8. On count 2, Section 324 (2) of the Penal Code provides:

(2) Any person who is charged with conveying or having in his possession, or keeping in any building or place, whether open or enclosed, any stores so marked, which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court how he came by the same, is guilty of a misdemeanour.

9. Looking at the mitigation of the applicant and generally the record of the court, there is no account given as to why the offender had the items.  In meting out the sentence the court took into consideration circumstances in which the offence was   committed; nature of the offence; the fact of the applicant having pleaded at the outset and being a first offender.

10. As currently submitted by learned counsel for the state, Ms. Ntabo, the sentence meted out was leniency.

11. Therefore, the application which is unmeritorious is  accordingly dismissed.

12. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYAT NAIROBI THIS 14TH DAY OF MARCH, 2022.

L. N. MUTENDE

JUDGE

IN THE PRESENCE OF:

Applicant

Ms. Ntabo for the State/ODPP

Court Assistant – Mutai