Kere v Republic [2023] KEHC 25618 (KLR)

Kere v Republic (Criminal Appeal E011 of 2022) [2023] KEHC 25618 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25618 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E011 of 2022

PJO Otieno, J

November 17, 2023

Between

Ronald Sirengo Kere

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. C. N. Njalale SPM in Butali Criminal Case No. E241 of 2022 dated 28th April 2021)

Judgment

1. The Appellant was arraigned before the Senior Principal Magistrate at Butali in Criminal Case No. E241 of 2022 charged with the offence of Stealing of motor vehicle parts contrary to section 278(A) of the Penal Code. The particulars of the offence are that on the 16th day of April, 2021 at Lwandeti area of Matete Sub County within Kakamega County, the Appellant jointly with others stole motor vehicle parts namely two batteries make Helden all valued at Kshs. 130,000/-, the property of one Wilson Juma Simiyu.

2. In the alternative, the Appellant was charged with the offence of handling stolen goods contrary to section 322(1)(2) of the Penal Code. The particulars of the offence are that on the 16th day of April, 2021 at Lwandeti area of Matete Sub County within Kakamega County, the Appellant jointly with others otherwise than in the course of stealing dishonestly retained two batteries all valued at Kshs. 130,000/- the property knowing or having reason to believe it to be stolen. He pleaded guilty to the main charge and was convicted and sentenced to five years’ imprisonment.

3. He was aggrieved with the sentence only and lodged the instant appeal contending that the sentence was very harsh considering that he was a first offender, he has a young child and that the trial court did not consider an option for fine or non-custodial sentence.

4. The appeal has been canvassed by way of written submissions and only the Appellant has filed his submissions in which he submits that he has served for more than a third of his sentence, he is remorseful and that he has rehabilitated and is seeking for his sentence to be reviewed downwards.

5. The instances when an appellate court would interfere with the discretion of a trial Court on the issue of sentence has been settled since Ogalo Son of Owuora v. Republic (1954) 21 EACA 270 to be as follows: -“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly 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 different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v. Shershewsity (1912) C.CA 28 T.LR 364. ”

6. The Appellant was charged and convicted under section 278A of the Penal Code and the sentence prescribed therein is imprisonment for seven years. The trial Magistrate sentenced the Appellant to 5 years’ imprisonment based on the contents of the presentencing report which indicated that he was rude, unruly to his parents with a penchant for stealing. According to his mother, he had a pending robbery with violence case at the Butali Law Courts and that his claims that he has a child is false.

7. Based on his character, the Court finds that the trial Court properly exercised its discretion in sentencing the Appellant to five years’ imprisonment and there is no justification to intervene.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF NOVEMBER, 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Appellant in personMs. Busienei for the RespondentCourt Assistant: Polycap Mukabwa