Mutuku Musyoka v Republic [2022] KEHC 1704 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCRA NO. E021 OF 2021

MUTUKU MUSYOKA......................................................................................APPELLANT

-VERSUS-

REPUBLIC.......................................................................................................RESPONDENT

(Being an appeal from the original conviction and sentence of Hon. Sagero in Makueni

ChiefMagistrate’s Court CMCR Case No.E113 of 2020 pronounced

on 18th February, 2021).

JUDGMENT

1.   The appellant was charged in the magistrates’ court with three (3) counts. Count 1 was for burglary contrary to section 304 (2) and theft contrary to section 279(b) of the Penal Code. The particulars of the offence were that on 25th November 2020 at 00:30 hours at Kathonzweni Sub-County in Makueni County broke and entered the dwelling house of Cyrus Mulwa with intent to steal from therein and did steal from therein 32 inch television, make L.G valued at Kshs28,000/= the property of Cyrus Mulwa.

2.   In count 2 he was also charged with burglary and stealing, the particulars of which being that on the same day and place broke and entered the dwelling house of Kioko Nzembi with intent to steal from therein and did steal from therein two mobile phones make Neon Nova and KGTEL all valued at Kshs.6,200/= the property of Kioko Nzembi.

3.   Under count 3 he was also charged with burglary and stealing. The particulars of which being that on the same day and place broke and entered the dwelling house of James Kioko Ndungu with intent to steal therein and did steal from therein one mobile phone make a Neon Ray valued at Kshs.7,500/= the property of James Kioko Ndungu.

4.   The appellant pleaded guilty to all the three (3) charges and was convicted and sentenced to serve 5 years imprisonment on each limb of the charge. The sentences were to run concurrent on each of the three counts, but consecutive on each of the two limbs of each count.

5.   Aggrieved by the sentence imposed, the appellant has now come to this court on appeal against sentence claiming that the sentence of 10 years imprisonment imposed upon him is harsh and excessive.

6.   The Director of Public Prosecutions has opposed the appeal on sentence.

7.   Sentencing is an exercise of discretionary power by a trial court. I note that before sentencing, the appellant wanted to be treated with forgiveness as he had children who depended on him and was drunk. The prosecution on their part said that he was a first offender. The trial court did not call for a pre-sentence report and sentenced him straight away.

8.   In my view, though the sentence of 5 years imprisonment was not excessive, with the value of the items stolen being not very high and the same having been recovered, in my view, the consecutive sentence was not called for. I will thus interfere with the sentence imposed and order that the sentence between the limbs of the offences will also be concurrent.

9.   I thus allow the appeal to the extent that I review the consecutive sentence and order that the appellant will now serve a concurrent sentence between the two limbs of each charge, thus he will serve five (5) year imprisonment from the date he was sentenced by the trial court.

DELIVERED, SIGNED & DATED THIS 9TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

...........................

GEORGE DULU

JUDGE