Kamau v Republic [2024] KEHC 4096 (KLR)

Kamau v Republic (Criminal Revision E568 of 2024) [2024] KEHC 4096 (KLR) (Crim) (9 April 2024) (Ruling)

Neutral citation: [2024] KEHC 4096 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E568 of 2024

LN Mutende, J

April 9, 2024

Between

Timothy Mwangi Kamau

Applicant

and

Republic

Respondent

Ruling

1. Timothy Mwangi Kamau, the applicant, was charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code.

2. Particulars being that on diverse dates between 29th March, 2022 and 2nd April, 2022 at Kamulu, Njiru Sub-County within Nairobi County, with intent to defraud obtained from James Mwangi Muiru a sum of Kshs. 500,000/- (Five Hundred Thousand Shillings) by falsely pretending that he could deliver 50 (fifty) lorries of machine cut building stones for construction.

3. He admitted the charge at the outset upon arraignment, was convicted and sentenced. The trial court delivered itself thus:“He is hereby sentenced to 2 years imprisonment as he is a first offender from 16th May, 2022 when plea was taken. He is further fined Kshs 150,000/- I/d to serve 18 months imprisonment. The complainant is at liberty to commence recovery proceedings from the commercial court.”

4. Aggrieved by the outcome he approached this court through an undated application filed herein on 21st February, 2024 where he urged the court to review the sentence.

5. Revisional jurisdiction of this court is derived from Section 362 of the Criminal Procedure Code (CPC) that enacts thus: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. From the foregoing revisional jurisdiction which is conferred by Statute can only be invoked if the subordinate court exercised its jurisdiction illegally with material irregularity. The question to be answered is if the trial court disregarded sentencing guidelines.

7. No doubt sentencing is a discretion of the trial court but where the sentence meted out is based on wrong principles the superior court must exercise its supervisory jurisdiction. This was captured in the case of Shadrack Kipkoech Kogo v Republic, Criminal Appeal No. 253 of 2003 where the court of Appeal held that:“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or factor or that a wrong principle was applied or that short of these, the sentence itself is so harsh and excessive and therefore an error of principle must be interfered (see also Sayeka v R. (1989 KLR 306).”

8. The Appellant contravened Section 313 of the Penal Code which provides thus:Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.

9. The Applicant was a first offender who saved judicial time by pleading guilty to the charge at the outset. Having imposed a sentence of two (2) years imprisonment it was irregular for the trial magistrate to mete out an additional sentence of a fine of Kshs. 150,000/- and in default eighteen (18) months imprisonment. The additional sentence having been an illegality I call it to this court, quash and set it aside.

10. In the result, taking into consideration the remission period, the Applicant has served the two (2) years imprisonment.

11. Therefore, the Applicant shall be discharged forthwith unless otherwise lawfully held.

12. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 9THDAY OF APRIL, 2024. L. N. MUTENDEJUDGEIn The Presence Of:ApplicantMs. T. Wafula for RespondentCourt Assistant – Gladys