1.The appellant was charged with the offence of Robbery with Violence contrary to section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that on the 26th day of March 2022 at Shimo Estate in Makueni Sub-County, the appellant robbed off Caroline Mwikali Nyalo her mobile phone make Tecno T349 brown in colour valued at kshs 1,300/=, ksh 2,000/= and at the said robbery used actual violence by strangling her with a scarf and wounded the said Caroline Mwikali Nyalo her left eye using his fist.
2.In the alternative he was charged with handling stolen property c/s 322(1)(2) of the Penal Code . It was alleged that on the 26th day of March 2022 at Shimo Estate in Makueni Sub-County, otherwise than in the course of stealing, he dishonestly retained one mobile phone make Tecno T349 brown in colour valued at kshs 1,300/=, the property of Caroline Mwikali Nyalo knowing or having reason to believe it to be stolen.
3.Plea was taken on 29th March 2022 and the appellant pleadid not guilty. He told the court that the complainant and others beat him up and he needed medical attention. That prayer was granted and he was also assigned a counsel on pro bono.
4.When the case came up for hearing on 30/05/2022, the prosecutor informed court that the complainant had expressed intention to withdraw her complaint through a letter that she had written, and that the state had no objection.
5.The letter seemed to indicate that the complainant and the accused had discussed and the accused had accepted to compensate the complainant, on which basis the complainant sought to withdraw the complainant.
6.The learned trial court formed the view that the letter amounted to an admission by the accused and directed him to plead to the charge afresh. The charge was read to him and he pleaded guilty. The facts were read to him and he pleaded guilty as well. he was convicted on his own plea of guilty
7.After considering the pre-sentence report the court on 16th June 2022 sentenced to five (5) years imprisonment and I year probation post imprisonment ‘to benefit from counseling’.
8.Aggrieved by that decision, the appellant filed this appeal on the following grounds;
9.The appeal was canvassed through written submissions.
The Appellant’s Submissions
10.The appellant filed his submission and listed new grounds as follows;
11.He submits that he had no prepared intention of committing the robbery and was only tempted to do so by an impulse decision which he regrets. That it was ignorance and an urge to possess what he could not afford that led to such temptation.
12.He has urged this court to consider his compensation to the complainant and submits that his family and complainant’s family have reconciled.
13.He submits that he is a first offender and has urged the court to consider that such offenders are always ignorant of what they are doing. That when he robbed the complainant of her property, he was not aware that it was an offence and was under the influence of alcohol.
14.It is also his submission that he is remorseful, regrets his actions and will never repeat in his lifetime.
Submissions by the State
15.The State, through Prosecution Counsel Victor Kazungu, submits that the appellant was given an opportunity to mitigate through his Advocate and upon consideration of the same and the nature of the offence; the court passed the five years’ prison sentence and probation for one year in order for the appellant to benefit from counseling.
16.The State has identified the following as the issues for determination.
17.On issue (a), he submits that the offence of robbery with violence attracts a death sentence and that the trial court considered all the relevant factors in deciding the appropriate sentence in the circumstances of this case. That a non-custodial sentence would have exposed the community to the risk of robbery and the court took into account the need to arrest the rampant cases of robbery within its territorial jurisdiction.
18.Referring to guideline 7.19(5) of the Sentencing Policy Guidelines, he submits that a court of law should take into account the protection of the community in deciding whether to impose a custodial sentence or not. That our courts have previously taken into account the need to protect the property of the public in imposing custodial sentence as opposed to non-custodial sentence. He relies on the case of Benson Nkaramata Sakita –vs- R  eKLR where it was held that;
19.On issue (b), he submits that the sentence meted out is legal, proper and safe. That the offence attracts a death sentence but the appellant was sentenced to five years in jail. He relies on the case of Kirako Ole Kiserian –vs- Republic  eKLR where the court held that;
20.He has also relied on the case of SKM –vs- R (2021) eKLR where the court stated that;
21.In conclusion, he submits that the appellant has failed to establish that he deserves the reliefs sought.
Analysis and Determination
22.The offence of robbery with violence is contained in Sections 295 and 296(2) of the Penal Code as follows;
23.Section 354(3) provides for what the court may do on appeal.
24.In this case is there any ground to reduce or alter the nature of the sentence?
25.From the record, it is evident that the appellant was given an opportunity to mitigate and he did so through his Advocate.
26.The learned trial l magistrate sought a pre-sentence report. The report painted the offender in good light and recommended a Community Service Order to be served at Kithuki Chief’s Office.
27.I have perused the report and it is evident that the Probation Officer did not consider the seriousness of the offence. There is no indication of the work available for the offender to perform should he be placed on community service, there is no evidence in the report of an identified supervisor. It is noteworthy that the officer provided the recommendation for a community service order yet the court did not request for such a report. It is no wonder that the trial court did not take the recommendation by the PACS officer. Section 3 of the CSO Act provides:
28.It is evident that it is upon the court that is considering a Community Service Order that seeks a CSO report. The recommendation cannot just come from the Community Service Officer suo motu because the officer does not know the sentence the court is going to mete out.
29.That besides it is evident that the trial magistrate considered the mitigation of the appellant, the nature of the offence and the pre-sentence report.
30.In the report the appellant introduces the angle of a relationship between him and the complainant, a fact that is denied, and which was not brought up during the trial during which the excuse was that the offence was committed on an impulse. It cannot be an excuse to cause physical injury and forcefully take away another person’s personal property.
31.The trial court took into consideration the circumstances of the case; that the complainant wanted to withdraw the complainant, that the appellant pleaded guilty and that he was a first offender. In those circumstances the court exercised his discretion and did not impose the sentence of death as provided for by law but imposed a 5year imprisonment sentence and one-year probation supervision for purposes of receiving counseling.
32.Robbery with violence is s serious offence. The circumstances indicate that the complainant was attacked, and strangled with her scarf and money and a phone taken from her. Offences such as robbery with violence pose and create an environment of fear and insecurity within the society. It is laudable that the appellant accepted that he did wrong and went on to compensate the complainant (as he alleges as there is no such evidence on record.
33.However, there was nothing wrong with the imprisonment sentence that was meted out by the learned trial magistrate to send out the message that such acts will not be tolerated. Kenyans anywhere must be able to move around without fear. Everyone is suffering in different degrees in these harsh economic times and we ought to find ways to fend for ourselves that do not include violating the rights of others or taking away what it is that those others have also worked for.
34.The appeal is not merited. The same is dismissed.