Wairimu v Republic [2022] KEHC 12861 (KLR)

Wairimu v Republic (Criminal Revision E365 of 2022) [2022] KEHC 12861 (KLR) (9 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12861 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Revision E365 of 2022

TM Matheka, J

September 9, 2022

Between

Virginia Ngendo Wairimu

Applicant

and

Republic

Respondent

Ruling

1. This matter was placed before me pursuant to article 165 (6) and (7) of the Constitution which state:(6)6) The High Court has supervisory jurisdiction over the Subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

2. The offender herein was charged with Stealing Contrary to section 268 (1) as read with section 275 of the Penal code. That on the night of the 4th and 5th October 2021 at Leopard Lodge Kanu Street area Nakuru East Sub County within Nakuru, jointly with others not before court they stole cash Kshs. 65,000/= and transferred another Kshs. 178,000/= from Equity Bank Account Number 0230192762194 all totaling to Kshs. 243,000/= the property of Michael Otieno Obonyo.

3. On November 8, 2021 the she pleaded guilty to both the charge and the facts.

4. The facts were that the complainant was at the Lodge when he was approached by two (2) ladies. He bought them alcohol. At some point as they were drinking, he lost consciousness. When he woke he was feeling dizzy. When he tried to make some payments from his Equity bank account through mobile banking, he was shocked to find that his account was empty. Upon contacting the bank he learnt that Kshs. 178,000/= had been withdrawn. His cash Kshs. 65,000/= was also missing. He reported to the police and upon investigation the accused person was identified as one of the ladies who was in his company. The prosecution produced as evidence, the bank statement, his phone and sim cards.

5. Upon pleading guilty to these facts, the accused was convicted. In mitigation, she told the court that she had four children who depend on her. She sought the court’s forgiveness.

6. The learned trial magistrate Hon. Khatambi sought a Probation Officer’s Report.

7. The report dated November 21, 2021 confirmed that the accused had four (4) children with three (3) different fathers. She conceded to committing the offence of putting “mchele” in the complainant’s drink because she needed quick money to boost her mitumba business. The court upon considering the Probation Officer’s Report the opinion from the facts that a term of three (3) years imprisonment was appropriate.

8. From the Social Inquiry Report I sought for purposes of this review the offender would like this sentence reviewed, to a non custodial sentence.

9. I have carefully considered the facts of the case, I have considered the manner in which the offence was committed whereby the complainant’s drink was spiked with a drug, making him unconscious and vulnerable to be robbed. The accused found a way to the complainant’s PIN, enabling her to make the transactions while he was unconscious.

10. She told the Probation Officer that by the time she was arrested she only had Kshs. 10,000/= of the money, which is what she wanted to refund to the complainant and then pay the rest by installments. The complainant was not in agreement.Does the applicant deserve the orders of review?

11. It is my view that the learned trial magistrate correctly exercised her discretion. The sentence was appropriate in the circumstances for a deterrent effect. The offence is serious, a deliberate action of poisoning the complainant’s drink to stupefy him so as to steal from him.I find no reason to upset the sentence.Review not granted.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF SEPTEMBER, 2022. MUMBUA T. MATHEKAJUDGECourt Assistant: JenifferAccused presentMs Murunga for state