Morris Mawira v Republic [2017] KEHC 614 (KLR)

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL APPEAL NO. 87 OF 2016

(From original conviction and sentence in criminal case NO.219 of 2016 of

Senior Resident Magistrate’s Court at Nkubu on 6/5/2016)

MORRIS MAWIRA …….………………..……………………… APPELLANT

VERSUS

REPUBLIC ……………...……………..……………………… RESPONDENT

JUDGMENT

The Appellant was charged with the offence of shop breaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code.  The particulars of the offence were that the appellant on the 21st December 2015 and 21st February 2016 at Machikine village, Chure location in Imenti South District within Meru County jointly with others not before court broke and entered the shop of VINCENT IKUNDA MBOGORI with intent to steal there and did steal a coat containing kshs.25,000/=, credit cards for Safaricom, Orange and Zain valued at kshs.3,760/=, five litres of parcons  cash box, bath soaps, tiger bar soaps, dry cells golden lio batteries, Colgate, golden fry cooking fats, sugar and handkerchief valued at kshs.21,240/= the property of VINCENT IKUNDA MBOGORI being of the total value of kshs.50,000/=.

The appellant pleaded guilty to the charge and was sentenced to serve 3 years imprisonment.  The appeal is on sentence.  The appellant maintains that the trial court erred by failing to give an option of a fine.  That his mitigation was not considered.  He is a first offender and has a family.  During the hearing of the appeal the appellant informed the court that he has a child and a wife.  He prays for leniency and he has trained as a carpenter while in prison.  Mr. Namiti, prosecution counsel submitted that the appeal is on sentence and the sentence is proper.

The record of the trial court shows that the appellant was brought before the court on 22nd February 2016.  He was not able to stand on his own as he had been assaulted by members of the public.  He was taken to hospital and returned on 24th  February 2016 for the taking of the plea.  The appellant informed the court that he was ready to take the plea as he had been treated.  The charge was read over to him and he pleaded guilty.  The case was adjourned to the 25th February 2016 for the reading of the facts.  The facts were read on 1st of March 2016.  The plea was taken afresh on that date and the facts were read.  The appellant pleaded guilty.  The facts of the case show that the appellant was cornered inside the complainant’s shop on 21st February 2016 and could not escape.  Members of the public responded to the alarm raised by the complainant and went to the scene.  They arrested the appellant and took him to the police station.  I do find that the plea was unequivocal  and the conviction is proper. The appellant had ample time to reflect on his plea.  He pleaded guilty to the charge and was properly convicted.

The next issue relates to the sentence.  The trial court sentenced the appellant to serve three (3) years imprisonment on 6th may 2016.  The appellant has now served over one year of the sentence.  The facts show that the appellant took the police to his house where items that had been earlier stolen from the complainant’s shop were recovered.  He pleaded guilty and   saved judicial time.  He maintains that he has now reformed and is remorseful.  I do find that the period already served is enough punishment.  The appellant should be given a second chance.

In the end, the conviction is upheld.  The sentence is set aside and replaced with the period already served.  The appellant shall be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED IN OPEN COURT ON 18TH JULY 2017.

SAID CHITEMBWE

JUDGE