Chacha v Republic (Criminal Appeal E018 of 2022)  KEHC 16360 (KLR) (15 December 2022) (Judgment)
Neutral citation:  KEHC 16360 (KLR)
Republic of Kenya
Criminal Appeal E018 of 2022
RPV Wendoh, J
December 15, 2022
1.Dan Chacha, the appellant, pleaded guilty to a charge of stealing a motor cycle contrary to section 278 (A) of the Penal Code. The particulars of the charge were that on June 28, 2021, at Kedenge G K Prison in Kuria East Sub County, jointly with others not before the court, stole a blue Bajaj 100 Registration 328T valued at 2500/= the property of Javan Onyango Odero.
2.In the alternative, he was charged with offence of handling stolen goods contrary to section 322 (1) as read with section 323(2) of the Penal Code. He was alleged to have dishonestly retained a Bajaj Motor cycle on July 1, 2021 knowing or having reason to believe that it was stolen.
3.When he was arraigned before the court on July 5, 2022, the appellant pleaded guilty to the maincharge and was convicted. The appellant was sentenced to serve fourteen (14) years imprisonment. He is aggrieved by the sentence meted on him on grounds that he is remorseful, regrets his previous acts, that he looks after an elderly mother; that having pleaded guilty, a sentence of fourteen (14) years is excessive. He therefore prays that the sentence be reduced and the court to pass any other sentence.
4.Mr Omooria, the Senior Assistant Director of Public Prosecution filed written submissions on January 31, 2022, opposing the appeal. He argued that the appellant was found to be a second offender having committed a similar offence and the court rightly sentenced him to fourteen (14) years imprisonment for both offences. He urged the court not to interfere with the sentence.
5.I have read the probation officer’s report that was filed and which the court considered before sentencing the appellant in the trial court. It was disclosed that the appellant had been convicted for a similar offence on Criminal Case No 315 of 2020 for an offence of stealing a motor cycle and was sentenced to serve thirteen (3) years. However, the sentence was revised during a decongestion exercise and the same was reduced to Community Service Order (C S O) to be served at Nguruna Chief’s Office for a period of two (2) years. Having been released on June 22, 2021, the only reported to the probation office, once and was arrested for this case.
6.The appellant claims to be remorseful, regrets his actions; that he has a mother to care for and prays for lenience. The court takes into account the fact that after his release on Community Service Order (C SO) the appellant hardly served CSO before he was charged for this offence. I agree that in the circumstances, a deterrent sentence is appropriate. Under Section 278 A of the Penal Code, upon conviction, one is liable to be sentenced to seven (7) years imprisonment. Even if the appellant had committed a similar before, he could not be sentenced for that offence in this case. The trial court should only take into account the fact that he was not a first offender. In this case the maximum sentence he should have been sentenced to is seven (7) years imprisonment. The sentence of fourteen (14) years is unlawful and is hereby set aside. Considering the fact that the applicant pleaded guilty to the charge but a repeat offender, I hereby sentence him to four (4) years imprisonment.
7.As regards the Criminal Case No 315 of 2021, the CSO order must be canceled in that file so that the trial court orders the appellant to serve the balance of the sentence in that case. The sentence of four (4) years will run from the date the appellant was sentenced on July 13, 2021. The appeal succeeds to that extent.
DELIVERED, DATED AND SIGNED AT MIGORI THIS 15TH DAY OF DECEMBER, 2022.R. WENDOHJUDGEJudgment delivered in the presence ofMr. Maatwa, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant