Republic v Mwenda [2022] KEHC 15807 (KLR)

Republic v Mwenda (Criminal Appeal E161 of 2021) [2022] KEHC 15807 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15807 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E161 of 2021

TW Cherere, J

December 1, 2022

Between

Republic

Appellant

and

Boniface Mwenda

Respondent

(Being an appeal against conviction and sentence in Meru Chief Magistrate’s Court Criminal No E289 of 2021 by Hon T M Mwangi (SRM) on March 25, 2021)

Judgment

1. Appellant was on March 25, 2021 sentenced to serve 3 years’ imprisonment for the offence of stealing contrary to section 268(1) as read with Section 275 of the Penal Code.

2. Appellant is aggrieved by the sentence which he says is not commensurate to the offence.

3. This court takes cognizance of the fact that it cannot interfere with the exercise of discretion by the trial magistrate’s court when sentencing the Appellant. In Bernard Kimani Gacheru v Republic, Cr App No 188 of 2000 the Court of Appeal stated thus:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. (See also Wanjema v Republic [1971] E.A.493. ”

4. The Court of Appeal inAhamad Abolfathi Mohammed & another v Republic [2018] eKLR held at Page 25 of its judgment as follows:“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle, ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive.

5. Appellant was sentenced to serve the maximum sentence for stealing. The Criminal Procedure Bench Bookat page 116 provides that:“The sentences imposed should be geared towards achieving the following objectives set out in the sentencing policy guidelines (paragraph 4. 1):i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Incapacitating the offender.vi.Denouncing the offence, on behalf of the community”.

6. At the very same page, at paragraph 24, the Bench Book states:“Generally, a maximum sentence should not be imposed on a first offender unless there are aggravating circumstances”.

7. Whereas it was alleged that Appellant was a repeat offender who had even served an imprisonment term, no material was placed before the court to support that allegation and I find that the trial magistrate erred when he took into account irrelevant considerations.

8. Appellant has already served 1 year and 8 months of the three-year sentence. It is hereby ordered that three years be substituted with the period already served.

DELIVERED AT MERU THIS 01stDAY OF December2022WAMAE. T. W. CHEREREJUDGEIn the presence of:Court Assistant - KinotiAppellant - In personFor the Respondent - Ms. Mwaniki