Janson Malakha v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 19 OF 2017 JANSON MALAKHA...............................APPELLANT VERSUS REPUBLIC...................................................RESPONDENT (From the original conviction and sentence in criminal case No. 626 of 2016 of the Chief Magistrate’s Court at Busia by Hon. Washika Wachira– Senior Resident Magistrate) JUDGMENT 1. The appellant, JANSON MALAKHA, was convicted of the offence of handling stolen property contrary to section 322(2) of the Penal Code. 2. The particulars of the offence were that on 15 th March 2016 at SIEMBERERO village, SIEMBERERO Sub location within KAKAMEGA County, otherwise than in the course of stealing, dishonestly assisted in the disposal of one motor cycle registration number KMCX 062N knowing it to have been stolen. 3. He was convicted after trial and sentenced to pay a fine of Kshs. 60,000/= or in default to serve four years imprisonment. 4. He now appeals against the sentence which he claims was harsh and excessive. 5. The state conceded the appeal through Mr. Owiti, the learned counsel. 6. The facts of the prosecution case were briefly as follows: The complainant and the first accused were known to each other. The latter went to the complainant and requested to use his motor cycle to ferry some timber. It would appear he was duped. The motor cycle and the first accused disappeared. Later, when he was arrested, he led to the recovery of the motor cycle in the house of the appellant. The tyres had been removed. The appellant was arrested. 7. Section 322(2) of the Penal Code provides as follows: A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years 8. An appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of NILSSON vs. REPUBLIC [1970] E.A. 599, as follows: The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.

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