Msuru v Republic [2022] KEHC 10841 (KLR)

Msuru v Republic (Criminal Revision E382 of 2021) [2022] KEHC 10841 (KLR) (Crim) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10841 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E382 of 2021

LN Mutende, J

June 9, 2022

Between

Julius Mwangi Msuru

Applicant

and

Republic

Respondent

Ruling

1. Julius Mwangi Msuru, the applicant, was convicted for the offence of stealing a motor-vehicle Registration No. KTJ 618, Isuzu Direct Injection Lorry valued at Kenya Shillings Six Hundred Thousand (Ksh. 600,000/-) the property of Beatrice Waithera. He was sentenced to pay a fine of Kenya Shillings One Hundred Thousand (Ksh. 100,000/-) and in addition to compensate the complainant Kenya Shillings Six Hundred Thousand (Ksh. 600,000) the value of the vehicle that was found dismantled. In default he was required to serve two (2) years imprisonment.

2. Through an application filed herein on 27th October, 2021 the applicant seeks an order varying the sentence imposed by the trial court so that the clause directing compensation is removed.

3. The State through learned Counsel Mr. Otieno urged that no condition was imposed if the applicant does not compensate the complainant. He called upon the court to allow the application in the interest of justice.

4. This court has revisional jurisdiction over the subordinate court which can only be exercised where the subordinate court has exercised jurisdiction not vested in it by law and/or has acted illegally or with material irregularity which must be corrected. (See Article 165 (6) (7) of the Constitution and Section 362 of the Criminal Procedure Code).

5. The applicant contravened Section 278A of the Penal Code which provides as follow:If the thing stolen is a motor vehicle within the meaning of the Traffic Act (Cap. 403), the offender is liable to imprisonment for seven years.

6. The law does not expressly provide for payment of a fine for the offence committed. But, the trial court opted to impose a fine which is permissible. That having been the case, the court should have been guided by Section 28(2) of thePenal Code that Provides thus:In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—…………..Exceeding 50,000……………12 months

7. In that regard having imposed a fine of Kenya Shillings One Hundred Thousand (Ksh. 100,000/-) the default sentence should have been one (1) year imprisonment.

8. A trial court has the discretion to make a compensation order. Which should be in addition or in substitution for any punishment, an order that takes effect upon expiry of a time when the individual has a right of appeal.

9. In the instant case the compensation order was made in addition to the punishment that was meted out.

10. The default sentence was for the applicant to serve two (2) years imprisonment.

11. Had the applicant appealed, the court would have determined if the order made was prejudicial to the rights of the applicant, this having not been done the court is inhibited from delving into that area.

12. That notwithstanding, the applicant alleged and it is was not disputed that he will complete the sentence tomorrow the 10th June, 2022, this being the case there having been an irregularity, I set a side the order of the court which I substitute with the following order:1. The Applicant (Accused) be and is hereby fined Kenya Shillings One Hundred Thousand (Ksh.100,000/-) and in default to serve one (1) year imprisonment.And in addition, to compensate the complainant Kenya Shillings Six Hundred Thousand (Ksh. 600,000/-) and in default to serve one (1) year imprisonment. Sentences to run consecutively with effect from 12th February, 2021.

13. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 9TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Otieno for the StateMutai - Court Assistant