Mwangi v Republic [2023] KEHC 25691 (KLR)

Mwangi v Republic (Criminal Case E030 of 2023) [2023] KEHC 25691 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25691 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Case E030 of 2023

FN Muchemi, J

November 20, 2023

Between

Stephen Maina Mwangi

Accused

and

Republic

Prosecutor

Ruling

1. This is a ruling on revision of sentence made through a letter dated 12th May 2023. The applicant urges this court to review sentence imposed on him by Hon. Angima, J upon conviction of the offence of breaking and committing a Felony contrary to Section 306 (a) of the Penal Code. The applicant was sentenced to serve two years imprisonment.

2. The parties argued this application through written submissions.

3. The applicant seeks for leniency by giving him a non-custodial sentence because his family is suffering in his absence from home for h seis the sole breadwinner. The applicant in his submissions states that he was convicted on 06/04/2023 and has now served a substantial part of the sentence and he states that it would be right and fitting for this court to declare su8fficient the sentence already served. Alternatively, the sentence yet to be served may be served as non-custodial. While in prison, the applicant states that he has reformed having gone through rehabilitation programmes. He has attained good farming skills which will help him to earn a living when he is released.

4. The respondent opposes this application on ground that the sentence was lawful and is not excessive. The respondent rubbishes off the mitigation of the accused that he is remorseful because he was not all remorseful during sentencing as shown by the record.

5. The power of this court to review sentence is provided for under Article 165(6) of the Constitution that gives the High Court Supervisory jurisdiction over subordinate courts. Section 362 and 364 of the Code empower this court to call for records and to revise decisions of the Magistrate Court.Section 362 provides :-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.It is important to look at the provisions of Section 306(a) of the Penal Code.Section 306(a):-Any person who –a)breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; orb)breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven year

6. The applicant was sentenced to serve two years imprisonment which is far below the maximum sentence. The sentence imposed cannot be said to be harsh or excessive.

7. In mitigation the applicant told the court that he had three children whom he left with nothing to eat. He was a first offender. The Magistrate did not indicate whether she considered the factors raised in mitigation and that the accused was a first offender and had pleaded guilty to the charge. The value of the three hens stolen was KShs.2,100, a factor that was not considered either.

8. This court has power to do what the Subordinate Court omitted to do. It is therefore important that I take into consideration the aforementioned factors. Having done so, I come to a conclusion that the applicant ought to have been considered for a non-custodial sentence. The applicant has now served eight (8) months imprisonment.

9. For the foregoing reasons, I hereby set aside the sentence of two years imprisonment. The sentence already served in my view is deemed to be sufficient considering all the relevant factors.

10. Consequently, the applicant is hereby released forthwith unless otherwise lawfully held.

11. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 20TH DAY OF NOVEMBER 2023. F. MUCHEMIJUDGE