Samuel Ngonyo Mwashumbe v Republic [2015] KEHC 1970 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 137 OF 2014

SAMUEL NGONYO MWASHUMBE…......…......................................….. APPELLANT

VERSUS

REPUBLIC  ……….…….....................................................................…RESPONDENT

(From Original Conviction and Sentence in Criminal Case No. 194 of 2008 of the Senior Principal Magistrate's Court at Voi – Hon. Wahome - SPM)

JUDGMENT

SAMUEL NGONYO MWASHUMBEhereinafter referred  to as the Appellant was Convicted and Sentenced to a fine of Ksh. 200,000/= in default one (1) year imprisonment in respect to Count No. 1.

In respect to Count three he was Sentenced to a fine of Ksh. 200,000/= in default one (1) year imprisonment.

As regards Count No. 4 he was  Convicted and fined Ksh. 100,000/= in default one year  imprisonment.

In Count No. 1 he was charged with the offence of impersonating a public officer contrary to section  105 (b) of the Penal Code.

The particulars being that:-

“On the 22nd day of January, 2008 at 3:30 p.m. at Voi police Divisional Headquarters Taita – Taveta  County  he falsely  presented himself to be a person employed in the public service  namely Senior Personal Administrator Legal  (DPM) in the office of the president and assumed  to be recognized by Mr. Francis  Kumut SSP OCPD Taita Taveta as a Senior Government Officer”.

In the 3rd Count he was charged with the  offence of making a document without authority contrary to section 357(a) of the Penal Code.

The particulars being that:-

“On diverse dates between the 22nd day of January, 2008 and 15th day of March, 2008 at unknown place in Voi Township – Taita Taveta County with intent to deceive and without lawful authority made certain documents namely business cards bearing  his name  and designation, purporting  to be the genuine cards  issued to him by the Head of procurement unit within the Ministry of State for Public Service in the  office of the president”.

In respect of Count 4 he was charged with the offence of  uttering a document  with intent  to deceive  contrary to section 357 (b) of the Penal Code.

The particulars being that:-

“On the 22nd day of January, 2008 at Voi Divisional Police Headquarters, Taita Taveta County with  intent to deceive know willingly, uttered  a certain  document namely a business card to Mr. Francis  Kumut SSP OCPD Taita Taveta  which had been made  without authority”.

Being dissatisfied with the  Conviction and  Sentence meted out against  him the appellant  lodged  this appeal whose grounds are that the Conviction was  against  the weight of the evidence adduced.

Secondly, that Sentence was manifestly harsh and excessive in the circumstances of this case.

That the probation report unlawfully influenced the Court in arriving at its decision on Sentencing.

In his submission before the Court Mr. Opulu for the appellant  in respect to Conviction contended that section 200 of the Criminal Procedure Code was not complied with by the learned trial magistrates.

On the issue of Sentencing its contended that the Sentence was harsh and excessive. That the appellant was Convicted in respect to Counts No. 1, 3 and 4 but was Sentenced in respect  to Count 1 , 2 and 3.  He had been acquitted in respect of Count No. 2. In respect of Count No. 4 there is no Sentence, yet he was Convicted  on that Count. Further that it was not indicated whether the Sentence would run concurrently or consecutively.

In respect to the probation report,  it is argued  that it  showed the Accused as a repeat offender. That this should have been the work of police but not the prosecution.

The appeal is opposed on the grounds that it has no merit.  That  section 200 of the Criminal Procedure Code  was complied with  by the trial magistrate's as exemplified by the  record of proceedings.

On Sentencing. Its contended that the appellant was acquitted in respect of Counts No. 2, 5, 6, 7, 8. That the error if any  is not fatal.

I have perused the record of proceedings. Honourable Gandani-Senior Resident Magistrate (then) heard 4 Witnesses before she went on transfer to another station. It is noted that  when Honurable Nyakundi  took over the matter he heard  one Witness (PW 5) without complying with the provision of section 200 of the Criminal Procedure Code.

Later on 26th March,  2010 an application was made for him to recuse himself which application he allowed and referred the case to Court No. 1.  Before Muriithi – Senior Principal Magistrate (as he then was) an application was made for the case to be heard De novo. The  Court ordered that the case be heard de novo.

The case commenced  De novo before Honourable Wahome on 13th  March, 2012. Later Counsel for the Accused  Mr. Opullu at page 56 of the record  of proceedings , told the Court that eight (8) Witnesses had testified and after  consulting with the Accused it was agreed that the case proceed from where it had reached.  Upon compliance with  section 200 of the Criminal Procedure Code the Court ordered that the case do proceed from where it had reached. Thereafter  Honourable Wahome  proceeded to hear  the case to its conclusion.

The ground that section 200 of the Criminal Procedure code was not  complied with is  in bad faith as it  is the Accused and his Counsel who had  requested that the case be  heard from where it had reached. Its the same Accused and Counsel who had requested that the case be heard De novo. The Court  had  granted the request (which is the Accused right) and made the order  for hearing de novo.  The Accused cannot be heard to say  that he was  prejudiced.

On the issue of  Sentencing. It  is noted that  the Accused was Convicted in respect to Counts No. 1, 3 and 4 and was acquitted  on the rest  of the Counts as per  the Judgment  dated 2nd day of July, 2014.

The Sentencing notes dated 17th July, 2014 indicate that in  respect of the first  Count he was fined  Ksh. 200,000/= in default one year imprisonment. In respect  of 2nd Count he was fined Ksh. 200,000/= in default one year imprisonment and in respect of 3rd Count he was  fined Ksh. 100,000/=  in default  one year  imprisonment.

The  committal warrant dated 17th July, 2014 corrected the anomaly and does not  include Count No. 2 but indicates Count No. 1, 3 and 4. There was an error on the Sentencing notes  which  error was not fatal to the prosecution case and same was  corrected on the committal warrants.

It is also noted that the learned  trial magistrate   did not in his Sentencing notes indicate whether the sentences  were to  run consecutively or concurrently.

This was  another error but am of the view that it  would not   prejudice   the case for the appellant.

The offences in which the Appellant  was Convicted  carry a maximum Sentence of seven (7)  years imprisonment.

The trial magistrate  was lenient in Sentencing the Accused  to one year (1)  imprisonment   with an option of a fine. The Sentence cannot be said to be  harsh and excessive in the circumstances of this case.

As  for the probation report  there was nothing  wrong for the probation officer to indicate the previous Convictions  of the Accused. This was after  the Conviction and it  could not  have influenced the Court in arriving at its own  decision. The Accused  was at  liberty  to question the controversial  areas in the report. But  as pointed above the  Court was very  lenient  in Sentencing  the appellant in spite of the  report.

The Court notes that there is an anomaly in the Sentencing notes and the committal warrant as its not  indicated whether the Sentence  is to run  consecutively or concurrently.

Its noted that the appellant was given  the option of a fine in all the three Counts he was  Convicted in.  It is ordered that the sentence do run consecutively. The  Conviction and Sentence is upheld subject that correction.

The appeal is dismissed.

Judgment delivered dated and signed this 8th day of October, 2015.

…......................

M.  MUYA

JUDGE

8TH OCTOBER, 2015

In the presence of:-

Learned Counsel for the prosecution Mr. Radebe

Learned Counsel for the Defence Opullu absent

Court Assistant Musundi

M. MUYA- JUDGE