1.The appellants were charged in Criminal Case Number EO156 of 2021 at the Principal Magistrates Court, Voi with two counts of the offence of Intentionally endangering safety of persons travelling by railway and handling suspected stolen property contrary to Sections 233(b) and 322(1), (2) of Penal Code respectively.
2.It was alleged that on the night of 10th February, 2021 at Ndii village, Ngolia sub-Location of Voi Sub-County within Taita-Taveta county, jointly with others not before court, they unlawfully endangered the safety of persons travelling by railway by vandalizing and stealing fencing materials namely two green metal gates, one light metal door, eight glass windows valued at Kshs. 96,000/=and two light window frames valued at Kshs. 20,000/= meant for securing Standard Gauge Railway line against any possible encroachment by persons and animals.
3.Aggrieved by the decision, they appealed against conviction and sentence. However, during the hearing of the appeal, they abandoned all the appeal against their conviction opting to challenge the sentences.
4.They submitted that the trial court ought to have considered their young age and the fact that they were first offenders imposing the sentence. They relied on the dictum in Joseph Yusuf Mumo v R1 where the court took note of the appellant’s young age and being a first offender and reduced the sentence. They also submitted that they were remorseful, and that while in prisons they have been of good behavior and they have since reformed and they are now ready to be reintegrated back to the society.
5.On his part, the 2nd appellant submitted that the trial magistrate while sentencing him did not consider and factor in the time he had spent in remand since he was arrested on 15th February, 2021 and he was not released on bail/bond. The 1st appellant submitted that the trial magistrate did not consider his mitigation that he was an orphan and married with two children who depend on him.
6.Mr. Sirima Learned Prosecutor submitted that Section 233 of the penal code provides a life sentence in the event one is convicted. Whereas, Section 322(1) (2) of the Penal Code provides for imprisonment not exceeding 14 years. However, in respect of the first count, the appellants were only sentenced to 4 years, and in respect of count 2 and 3, the appellants were sentenced to serve 2 years each and that both the sentences were to run consecutively. He argued that the said sentences were a slap on the appellant’s wrists, since the offence was tantamount to an economic sabotage. He argued that a deterrent sentence would have been appropriate.
7.While praying for the appeal to be dismissed and sentence upheld, counsel submitted that the trial court considered the nature of the crime and the impact of the crime to the society. Consequently, he submitted that the sentences not harsh. To buttress his submission, he cited the finding in Vitalis Okoth Omondi & 2 others v R 2where the court delved into the principles of sentencing and the considerations thereof.
8.The principles upon which an appellate court will act in exercising discretion to review, alter or set aside a sentence have time without a number settled by our courts. The Court of Appeal in Bernard Kimani Gacheru vs. Republic 3stated:-
9.In S v Malgas4 it was held that:
10.Also, in Mokela vs. The State5 the Supreme Court of South Africa held:
11.I have perused the trial court’s record and I note that the appellants were afforded an opportunity to mitigate. The trial court noted that the 1st appellant had a young family which depended on him for education and food and that his parents also depended on him. The 1st appellant also stated that he had a metal implant on his right leg and therefore he needed to go for check up every four months. The 2nd appellant stated that he was an orphan with a young family which fully depends on him and that his wife is not able to work.
12.on count 1 the appellants were convicted for intentionally endangering safety of persons travelling by railways under Section 233(b) of the Penal Code which provides:-233.Any person who, with intent to injure or to endanger the safety of any person travelling by any railway, whether a particular person or not –(a)Places anything on the railway; or(b)deals with the railway, or with anything whatever upon or near the railway, in such a manner as to affect or endanger the free and safe use of the railway or the safety of any such person; or (c) shoots or throws anything at, into or upon, or causes anything to come into contact with, any person or thing on the railway; or(d)shows any light or signal, or in any way deals with any existing light or signal, upon or near the railway; or(e)by any omission to do any act which it is his duty to do causes the safety of any such person to be endangered, is guilty of a felony and is liable to imprisonment for life.322.(1)A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so. (2) A person who handles stolen goods is guilty of a felony and is liable to imprisonment for a term not exceeding fourteen years.
13.The appellants are asking for a more lenient sentence than that which was meted out on them by the trial court. The question is whether this court should interfere with the sentence imposed on the appellant by the trial court. In Charo Ngumbao Gugudu v Republic6 the Court of Appeal held that:-
14.It is settled that law that this court on appeal will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. I have considered the circumstances in which the offences were committed and the sentences meted. The appellants were all first offenders. The trial court noted that Count 1 was a serious offence by its very nature and the appellants were liable to imprisonment for life. However, the trial court took into account the appellants’ mitigation before sentencing the appellants to serve four years imprisonment. With regard to Count 3 and 4 the appellants were liable to imprisonment liable to imprisonment for a term not exceeding fourteen years. However, a lenient sentence of two years was meted by the trial court having considered the Appellants’ mitigation.
15.Having considered the material on record as well as the submissions made, I am not satisfied that this is a proper case for this court to interfere with the sentence. In my view the sentence imposed was very lenient and the appellants ought to count themselves lucky that they got away with such a light sentence.
16.As regards to the period the Appellants spent in remand, Section 333(2) of the Criminal Procedure Code provides that:-(2)Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
17.In Ahamad Abolfathi Mohammed & Another v Republic 7the Court of Appeal held that:-
18.In this case the learned trial magistrate did not state when the sentence meted would commence. In my view it was prudent to indicate the same. The appellants were arrested on 15th February, 2021 and they were sentenced on 19th Jul, 2021.
19.Flowing from my discussion above, I find and hold that the appeal against conviction fails and the same is dismissed. As for the sentence, pursuant to section 333(2) of the Criminal Procedure Code, the appellants’ sentence will run from 15th February, 2021.