Musili v Republic [2022] KEHC 10057 (KLR)

Musili v Republic (Miscellaneous Criminal Application E388 of 2021) [2022] KEHC 10057 (KLR) (Crim) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10057 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E388 of 2021

LN Mutende, J

July 12, 2022

Between

Reuben Mutemi Musili

Applicant

and

Republic

Respondent

Ruling

1. Reuben Mutemi Musili, the Applicant, was arraigned in court and charged with the offence of being in possession of suspected stolen property contrary to Section 323 of the Penal Code. He admitted the charge at the outset. A pre-sentence report file by the Probation Officer in his regard was not favourable. It was found that the applicant and his friends, operated a well-coordinated gang that masquerade as porters within the City Centre and end up stealing goods from unsuspecting innocent Kenyans. This made the learned trial Magistrate sentence him to serve two (2) years imprisonment.

2. The applicant approached this court through an application pursuant to the provisions of Section 362 of the Criminal Procedure Code (CPC) seeking review of the sentence mated out to preferably an order that he be placed under probation supervision. The application is premised on grounds that he will never engage in criminal activities, his son lives with his elderly mother who is seriously sick and suffers from epilepsy, and both of them depend on him. That he is ill as he suffers from chronic illness, ulcers and his incarceration will lead to deterioration of his health.

3. The application is opposed by the Respondent. Ms. Akunja, learned Counsel for the State, argued that the sentence was legal and lenient considering the offence committed.

4. A party who desires to obtain orders pursuant to Section 362 of the CPC must demonstrate existence of an illegality,Incorrectness or impropriety of the order made by the Subordinate Court or any other irregularity.

5. The complaint of the applicant is in respect of the sentence meted out. Section 323 of the Penal Code provides that:Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanor.

6. Section 326 of the Penal Code provides thus:Any person who, without lawful excuse, knowing or having reason to believe the same to have been stolen or obtained in any way whatsoever under such circumstances that if the act had been committed in Kenya the person committing it would have been guilty of a felony or misdemeanor, receives or has in his possession any property so stolen or obtained outside Kenya, is guilty of an offence of the like degree (whether felony or misdemeanor) and is liable to imprisonment for seven years.

7. The mitigation by the applicant indicated that he had knowledge of the fact of the items having been stolen, therefore he was liable to be sentenced to seven (7) years imprisonment, considering the pre-sentence report filed. Therefore, the sentence meted out was lenient.

8. In the premises, the application is unmeritorious, accordingly, it is dismissed.

9. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 12TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Adhiambo - DPPCourt Assistant - Mutai