Mwikali v Republic [2024] KEHC 16 (KLR)

Mwikali v Republic (Criminal Appeal E094 of 2022) [2024] KEHC 16 (KLR) (11 January 2024) (Judgment)

Neutral citation: [2024] KEHC 16 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E094 of 2022

GMA Dulu, J

January 11, 2024

Between

Kennedy Mathina Mwikali

Appellant

and

Republic

Respondent

(From the conviction and sentence in Criminal Case No. E253 of 2022 delivered on 30th May 2022 at Makindu by Hon. J. D. Karani(RM))

Judgment

1. The appellant was charged with breaking into a building contrary to Section 306(a) and stealing contrary to Section 279(3) of the Penal Code.

2. The particulars of offence were that on 9th April 2022 at Machinery trading centre in Kibwezi Sub County within Makueni County jointly with others not before court broke and entered into the shop of Peter Musyoki and did steal 40 packets of green PK, 4 packets of blue PK, 35 packets of juicy fruits, 5 cartons of Gomba chewing gum, 2 jerricans of 20 litres of Salit cooking oil, 7 packets of Big G, 2 parcels of rooster cigaretes, 2 parcels and one packet of safari cigarettes, one parcel and 5 packets of sportsman, one robot radio, 20. 5kg of sugar and 5 cartons of rainbow milk (500ml) all valued at Kshs. 57,230/= the property of Peter Musyoki.

3. He was also charged with an alternative count of handling stolen goods contrary to Section 322(1)(2) of the Penal Code.

4. When he was brought to court, he was recorded as having pleaded guilty to the main count of breaking into a building and stealing, was convicted and sentenced to pay a fine of Kshs. 100,000/= in default 3 years imprisonment on the 1st limb of the offence and a fine of Kshs. 100,000/= and in default 3 years imprisonment for the 2nd limb of the offence, and sentences to run consecutively which is a total of 6 years.

5. The appellant has now come to this court on appeal against sentence and wants the sentence to be reduced.

6. The appeal was canvassed through written submissions, and I note that the Director of Public Prosecutions considers that the consecutive sentences are harsh and has conceded to reduction of sentence.

7. Having myself reconsidered the matter, the fact that the appellant pleaded guilty to the charge and did not waste court’s time, and that a number of the stolen items were recovered, I am of the view that the sentence was harsh and excessive. I will thus reduce the default prison sentence to 2 years imprisonment for each limb of the offence.

8. I thus order that the appellant be and is hereby sentenced to Kshs. 100,000/= in default 2 years imprisonment, for the 1st limb of the offence, and fine Kskhs. 100,000/= in default 2 years imprisonment for the 2nd limb of the offence to run consecutively which is a total of 4 years imprisonment from the date he was sentenced by the trial court.

DATED, SIGNED AND DELIVERED THIS 11TH DAY OF JANUARY 2024 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Ms. Nusura – Court AssistantAppellantMs. Omolo for State