Murithi Mathew Kinoti v Republic [2017] KEHC 9520 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO. 399 OF 2017

MURITHI MATHEW KINOTI….......................................... APPLICANT

VERSUS

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

RULING

The Applicant was convicted in Kibera Cr. Case No. 4330 of 2014 with the alternative charge of having suspected stolen property contrary to Section 323 of the Penal Code. It was alleged that on 29th August 2014 at Huruma Area Block 9 L Maisonette parking yard of Huruma Flats in Nairobi within Nairobi County was found having suspected stolen property namely; a motor vehicle Reg. No. KBP 646U. The main charge was that of robbery with violence contrary to Section 296(2) of the Penal Code. He was sentenced to serve five years in jail. The application before this court by Notice of Motion dated 25th July, 2017 is for revision of sentence.  In his submission in court, he asked the court to take into consideration the period of two and a half years he spent in custody before he was sentenced.

Learned State Counsel Ms. Atina conceded to the application noting that the period the Applicant spent in custody should be taken into account in reducing the sentence. In addition, she submitted that the Applicant was convicted for a misdemeanor under Section 323 of the Penal Code. The penalty for a misdemeanor being up to three years imprisonment then the Applicant was sentenced in excess of the legal penalty provided  by the law.

Section 323 of the Penal Code provides that

“any person who is convicted of the offence of having or conveying stolen property that is stolen or unlawfully obtained and does not account to the satisfaction of the court of how he came by the same is guilty of a misdemeanor.”

A misdemeanor is defined under Section 4 of the Penal Code as “any offence which is not a felony”. Under the same section a felony is defined as “an offence which is declared by law to be a felony or, if not declared to be a misdemeanor, is punishable, without prove of previous conviction, with death, or with imprisonment for three years or more.”

Therefore, where an accused is charged with an offence for which the penalty provided generally is a misdemeanor the court cannot sentence him in excess of three years. Since Section 323 of the Pena Code does not provide for a specific sentence, then the court should have imposed a sentence that was not in excess of three years.   The Applicant having been sentenced to five years means that the sentence was not only illegal but harsh and excessive in the circumstances.

The Applicant took plea on 23rd September, 2014 and was sentenced on 19th July, 2017.  Throughout the trial period he was in remand which period accounts for slightly above three years. He has accordingly served his entire sentence.

In the result, pursuant to Section 364 of the Criminal Procedure Code, I set aside the sentence of five years imposed and substitute it with an order that the Applicant has served sufficient sentence. I order that he be forthwith set free unless otherwise lawfully held,

DATED and DELIVERED this 3rd October, 2017

G.W. NGENYE-MACHARIA

JUDGE

In the present of:

1. Applicant in person.

2. M/s Atina for the  Respondent