Njihia v Republic (Criminal Appeal E015 of 2022)  KEHC 13622 (KLR) (6 October 2022) (Judgment)
Neutral citation:  KEHC 13622 (KLR)
Republic of Kenya
Criminal Appeal E015 of 2022
HPG Waweru, J
October 6, 2022
Patricia Wangari Njihia
(Appeal from original Sentence in Nanyuki CM Criminal Case No E2229 of 2021 – V M Masivo, RM)
1.The Appellant herein, Patricia Wangari Njihia, was convicted upon her own plea of stealing by servant contrary to section 281 of the Penal Code. It was stated in the particulars of the charge that on January 23, 2021 at Makutano Township in Laikipia-Central Sub-County within Laikipia County, being a servant of one Juda Macharia, the owner of Travellers Bar, she stole sales and stock, all valued at KShs 82,650/00, the property of her said master, which came into her possession by virtue of her employment.
2.On February 4, 2022 the Appellant was sentenced to four (4) years imprisonment, the sentence to run form October 18, 2021 when she was arraigned in court and pleaded guilty. She has appealed only against that sentence.
3.The Appellant submitted that she is a young single mother with two children aged 9 and 6 years. She further submitted that her mother with whom the children were left when she was arrested, was no longer able to take care of them because of her poor health, and that a neighbour now takes care of them. She pleaded for a reduction of the sentence which she said was manifestly harsh and excessive in her circumstances.
4.On his part learned counsel for the Respondent conceded that the sentence, though lawful, was manifestly harsh and excessive, given that the Appellant was a first offender who had pleaded guilty, and was also a single mother with young children.
5.The maximum sentence prescribed for the offence is seven (7) years imprisonment. However, the Appellant was a first offender who pleaded guilty. On top of that she was a single mother with two young children, a fact that had been verified in a pre-bail report. In sentencing the Appellant the trial court stated that the offence had been committed by a gang and that the accomplices were still at large. This observation by the trial court was erroneous, in that the charge did not allege that the offence was committed with others not before the court. Whereas the facts given after the Appellant pleaded guilty included the statement that some people had been seen assisting the Appellant to load the stolen goods onto a vehicle, for all we know they could have been innocent hired or other help. This perception by the trial court appeared to lead it to awarding a sentence that was manifestly harsh and excessive in the circumstances.
6.These circumstances were that the Appellant was a first offender who pleaded guilty, which of itself is a demonstration of remorse. She was also a single mother with two young children. In these circumstances the trial court ought to have called for a probation/pre-sentencing report and consider a non-custodial sentence.
7.The Appellant has now served sentence from October 18, 2021, a period of nearly one (1) year. I consider that sufficient punishment for her.I will in the event partially allow this appeal against sentence by setting aside the four (4) years imprisonment awarded and substituting therefor the time already served. That means that the Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 5TH DAY OF OCTOBER 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 6TH DAY OF OCTOBER 2022