Robert Kaguire Mwangi v Republic [2019] KEHC 9234 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL NO. 63 OF 2016

ROBERT KAGUIRE MWANGI.................APPELLANT

VERSUS

REPUBLIC.................................................RESPONDENT

(Appeal from the original conviction and sentence in Criminal Case No. 134 of 2016

at Kangema by D. M. Kivuti, Senior Resident Magistrate, dated 18th July 2016)

JUDGMENT

1. The appellant was adjudged guilty of arson contrary to section 332 (a) of the Penal Code. He was sentenced to ten yearsimprisonment.

2. The particulars were that on 23rd March 2016 at Gitathi village, Kangema Sub-County he willingly set fire to a dwelling house belonging to Rahab Njeri Kaguire.

3. The petition of appeal challenges both the conviction and sentence. However, on 5th March 2019, the appellant abandoned the appeal on conviction. He onlychallenges the sentence. He said he is a first offender; and, that he lost property in the blaze. He pleaded for leniency.

4. Learned Prosecution Counsel opposed the appeal. She submitted that the sentence handed down was lenient.

5. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32.

6. From the evidence of PW1, PW2 and PW3 there is no doubt that the appellant set alight the dwelling house. The complainant is his wife. The defence proffered was a red herring. I have reached the conclusion that the conviction was safe. In any event, the appellant no longer challenges his conviction.

7. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence. In Macharia v Republic [2003] 2 E.A 559 the Court of Appeal held-

“The Court would not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with that discretion exercised by a trial judge, unless it was evident that the judge acted upon some wrong principles or overlooked some material factors.”

8. The appellant told the trial court in mitigation that he was also a victim of the fire: he lost his property. That is the same mitigation he now tenders in the appeal.

9. The learned trial Magistrate considered the mitigation. He took into account that the appellant was a first offender. He also called for a victim impact statement.

10. The offence of arson carries a sentence of up to life. But I have considered that the appellant was the husband of the complainant. The three-roomed semi-permanent house was their home. The appellant was drunk. He had no previous records. I think the sentence was too harsh in the circumstances.

11. I sentence the appellant to serve five (5) years imprisonment. For the avoidance of doubt, the term of imprisonment shall take effect from 18th July 2016, the date of his original conviction.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 26th day of March 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

The appellant (in person)

Ms. Gichuru for the Republic.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.