Republic v Mwaniki Katiwa [2015] KEHC 2762 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL REVISION  NO. 28 OF 2015

REPUBLIC

VERSUS

MWANIKI KATIWA ………………………..………..................……  APPLICANT

RULING ON REVISION

The Applicant, Mwaniki Katiwa has made an application under section 362 and 364 of the Criminal Procedure Code for the revision of the sentence of two (2) years herein.

The Applicant was charged with the offence of:-

Count I:- Breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code.

The particulars of the offence were that “on the nights of 15th and 16th October, 2012 at unknown time, at Kitungati Market, Kitungati Location in Kitui County jointly (with others) broke and entered into a building namely Bar of Joseph Muthoka and stole from therein, 1 DVD machine make LG, 1 Senator Keg pump, 16 beers of Guinness, 1 Fiesta beer, 5 Tana Brandy spirits and 2 Kenya Cane Smooth Cane spirit all valued at Kshs.20,080/= the property of Joseph Muthoka.”

In the alternative the Applicant was charged with the offence of handing stolen goods contrary to section 322 (2) Sub-section 2 of the Penal Code.

The particulars of the offence being that “on the 16th day of October, 2012 at about 3. 45 a.m. at Kangwa Trading Centre, Kitungati Location in Kitui County otherwise than in the cause of stealing retained 1 DVD machine make LG, 1 Senator Keg pump, 15 beers of Guinness, 1 Fiesta beer, 5 Tana Brandy Spirits and 2 Kenya Cane Smooth Cane Spirit all valued at Kshs.19,960/= knowing or having reasons to believe them to be stolen goods the property of Joseph Muthoka.”

Count II:-  Breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code.

The particulars of the charge were that “on the nights of 15th and 16th October, 2012 at unknown time, at Kitungati Market, Kitungati Location in Kitui County jointly (with others) broke and entered into a building namely Kinyozi of Wambua Munyao and stole from therein, 1 DVD machine make Royal Tech, 6 mobile phones make Nokia 1200, 1202 and 4 Motorollas make C113and C115 all valued at Kshs.33,000/= the property of Wambua Munyao.”

In the alternative the Applicant was charged with the offence of handling stolen goods contrary to section 322 (2) Sub-section 2 of the Penal Code.

The particulars of the offence being that “on the 16th day of October, 2012, at about 2. 30 p.m., at Kangwa Trading Centre, Kitungati Location in Kitui County otherwise than in the cause of stealing retained 1 DVD machine make Royal Tech valued at Kshs.6,000/= the property of Wambua Munyao.”

After a full trial, the Applicant was convicted for the offences in the main counts and sentenced to serve two (2) years imprisonment.

I have perused the lower court record.  I have found no irregularities.  Section 306 (b) of the Penal Code provides for a sentence of up to seven (7) years imprisonment.   The sentence is therefore within the law.

The application has no merits and is dismissed.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this  24th  day of March  2015.

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B. THURANIRA JADEN

JUDGE