Njeru v Republic [2023] KEHC 22995 (KLR)

Njeru v Republic (Criminal Appeal E095 of 2022) [2023] KEHC 22995 (KLR) (Crim) (2 October 2023) (Judgment)

Neutral citation: [2023] KEHC 22995 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E095 of 2022

K Kimondo, J

October 2, 2023

Between

David Waithanga Njeru

Appellant

and

Republic

Respondent

(Appeal from the original conviction in Criminal Case No. 358 of 2015 in the Chief Magistrates Court at Makadara by A. R. Kithinji, CM, dated 29th October 2019)

Judgment

1. The appellant was adjudged guilty for robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. He was imprisoned for ten years.

2. The petition of appeal was filed out of time pursuant to leave granted by the High Court on June 20, 2022. He raises two grounds on the sentence: Firstly, that the learned trial magistrate erred by failing to take into account the period spent in custody; and, secondly, that his mitigation was not considered.

3. At the hearing of the appeal on October 2, 2023, the appellant confirmed that he was not challenging his conviction or sentence of 10 years but was only seeking a deduction of the period spent in remand custody.

4. The appeal is contested by the Republic. Learned Prosecution Counsel, Mr Kiragu, argued that the learned trial magistrate expressly took into account the period spent in remand; and, that the sentence meted out was very lenient.

5. This is a first appeal to the High Court. I have re-evaluated the record and drawn my own conclusions. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32, Kariuki Karanja v Republic[1986] KLR 190.

6. From the evidence of the six prosecution witnesses and the defence put forth by the appellant, I am satisfied that the conviction was safe. I have also stated that the appellant does not challenge his conviction.

7. Section 333 (2) of the Criminal Procedure Code provides as follows-"Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody."

8. In addition, section 354 (3) of Criminal Procedure Code empowers the appellate court to alter the finding, maintain the sentence, or with or without altering the finding reduce or increase the sentence. The parameters were well set out in Macharia v Republic [2003] 2 EA 559.

9. I have carefully studied the record of the lower court. The relevant part reads as follows-"Social report considered and accused’s mitigation. I have also considered that he has been in custody since 2016. He is sentenced to serve 10 years in jail." [underlining added]

10. It is thus not correct to assert that the time the appellant spent in custody was not taken into account; or, that his mitigation was overlooked. The trial court also called for a pre-sentencing report. It is not lost on me either that the appellant committed the felony of robbery with violence which attracts a sentence of death.

11. However, following the momentous decision of the Supreme Court in Francis Karioko Muruatetu & another v Republic, Consolidated Petitions Nos 15 & 16 of 2015 [2017] eKLR, the mandatory nature of the death sentence as provided for under Section 204 of thePenal Code was declared unconstitutional. This did not outlaw the death penalty, but it left the court with discretion to impose a lighter sentence.

12. The sentence of 10 years was thus very lenient and I decline to disturb it. The upshot is that the entire appeal lacks merit and is hereby dismissed.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF OCTOBER 2023. KANYI KIMONDOJUDGEJudgment read virtually on Microsoft Teams in the presence of: -The appellant (in person).Mr. Kiragu for the respondent instructed by the office of the Director of Public prosecutions.Mr. E. Ombuna, Court Assistant.