Majanga v Republic [2023] KEHC 24957 (KLR)

Majanga v Republic (Criminal Revision 49 of 2023) [2023] KEHC 24957 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24957 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 49 of 2023

DR Kavedza, J

November 7, 2023

Between

Leonard Majanga

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged and convicted for the offence of stealing contrary to section 268(1) as read with section 275 of the of the Penal Code in Kibera CM Criminal Case No. E1287 of 2022. He was subsequently sentenced to a fine of Kshs.100,000 in default to serve one and a half (1 ½) years imprisonment.

2. The applicant has now filed a Notice of Motion application dated 15th August 2023 seeking a revision of his sentence. He prays that the court takes into account the period he spent in pre-trial custody and revise his sentence.

3. The application is supported by an affidavit sworn by the applicant, Leonard Majanga. He avers that he is the breadwinner of his family and pleads with the court for leniency. The applicant has also raised the ground that the sentence was harsh and excessive. The application is not opposed by the State.

4. While the application is premised on the provisions of section 333 (2) of the Criminal Procedure Code, it invokes the revisionary jurisdiction of this court which is donated by section 362 of the Criminal Procedure Code which reads as follows:“…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.

5. It is trite law that an appellate court will not interfere with the discretion exercised by the trial court when passing sentence unless it is evident that the trial court took into account an irrelevant factor or that a wrong principle was applied or overlooked some material factors or short of those the sentence was so harsh and excessive that an error in principle must be inferred.

6. Section 275 of the Penal Code provides:“General punishment for theftAny person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”

7. The applicant herein was sentenced to a fine of Kshs.100,000/= and in default to serve 1 ½ years imprisonment. This sentence was wrong because where the provision under which the person is charged does not provide for a fine, the default clause is one year imprisonment. Section 28(2) of the Penal Code provides:Amount Maximum periodExceeding Sh. 50,000. ...................... 12 months

8. The trial Magistrate having opted to impose a fine, the maximum term of imprisonment in default should not have exceeded twelve months. Since the default sentence exceeded the sentence provided, this court will interfere with the sentence.

9. Further, section 333 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya provides that:“(2)Subject to the provisions of section 38 of the Penal Code (cap. 63) every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

10. Based on the foregoing, I allow the application and set aside the sentence of the trial Magistrate and substitute it with a sentence that the applicant shall pay a fine of Kshs.100,000 or in default to serve twelve (12) months imprisonment. Additionally, I direct that the period the applicant spent in custody from 16/8/2023 to 7/11/2022, being 2 months and 22 days, be included in the computation of his sentence.

11. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF NOVEMBER 2023. ..................D.KAVEDZAJUDGEIn the presence of: