Vincent Otee Mugidosi v Republic [2017] KEHC 922 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIM. REVISION NO. 39 OF 2017

VINCENT OTEE MUGIDOSI………..………………… APPLICANT

VERSUS

REPUBLIC……..……………………………………PROSECUTOR

(Arising from the Conviction and Sentence dated 11thNovember, 2016 in Kiambu Criminal Case No. 2355 of 2015 presided over by Hon. B. Khaemba, Senior Resident Magistrate)

RULING ON REVISION

1. The Applicant was presented before the Senior Resident Magistrate, Kiambu charged with a single count of child stealing contrary to section 174(1) of the Penal Code. The particulars are that on the 5th day of October, 2015, at Gachie within Kiambu County, the Applicant took A N, a child aged four and a half years with intent to deprive E W, the parent who had the lawful charge of the possession of the said A N.

2. After a fully-fledged trial in which the Prosecution called five witnesses and in which the Applicant gave a sworn statement, the Learned Trial Magistrate convicted the Applicant.

3. The Learned Trial Magistrate proceeded to sentence the Applicant to three years imprisonment noting that he had taken into account the more than one year the Applicant had been in custody during the pendency of the trial.

4. The Applicant has approached this Court seeking revision of the sentence. He gave two reasons: that he is now fully reformed in prison having taken some courses including carpentry. He is also of the view that he will be better able to serve his family better. He thinks the sentence imposed on him was excessive for a first offender who had expressed remorse.

5. The Prosecution disagrees. Mr. Kinyanjui pointed out that the sentence was lenient given that a minor was involved and that the maximum sentence is seven years imprisonment.

6. The circumstances upon which a reviewing court will interfere with a sentence lawfully imposed by a trial Court are circumscribed. It will only do so if it is evident that the trial Court acted on wrong principles or overlooked some material factor or the sentence is illegal or is manifestly excessive or lenient as to amount to a miscarriage of justice. Lastly, a reviewing Court can interfere with sentence a Trial Court has imposed a sentence that is demonstrably unfit in the given circumstances. It is not enough that the reviewing Court would have imposed a different sentence if it was sentencing in the first place. See: Ogalo s / o Owora vs. R [1954] 24 EACA 70.

7.  In this case, it cannot be said that the Learned Trial Magistrate failed to address himself to all relevant factors and it cannot be said that he acted on any wrong principles. The Learned Magistrate explicitly considered that the Applicant was a first offender and that the Applicant was remorseful. He found that imprisonment for three years was an appropriate sentence in the circumstances after considering the time the Applicant had spent in custody.

8. Given that a minor of relatively tender age was involved and the fact that the maximum sentence for the offence is seven years, I am unable to say that the sentence was in any way disproportionate or excessively harsh. It is also clear that the Learned Magistrate took into consideration all the factors before sentencing and did not consider any extraneous factors.

9. Consequently, I find no reason to review the sentence. The Application for revision is hereby declined. The sentence is affirmed and the Applicant shall serve the remaining part of his sentence.

10. Orders accordingly.

Dated and delivered at Kiambu this 15thday of November, 2017.

……………………………………

JOEL NGUGI

JUDGE