Mwaninge v Republic (Criminal Revision E120 of 2024) [2025] KEHC 14442 (KLR) (27 February 2025) (Ruling) Neutral citation: [2025] KEHC 14442 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CRIMINAL REVISION E120 OF 2024 NIO ADAGI, J FEBRUARY 27, 2025 BETWEEN SAITOTI MWANINGE ............................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant was charged with the offence of Stealing by Servant contrary to Section 281 of the Penal Code. The particulars were that on the 24th day of June 2023 at Mitatini village in Joska location in Matungulu Sub-county within Machakos County, being a servant to Stephen Yego stole sixty goats, forty-five sheep and a cow all valued at Kshs.750,000/= the property of the said Stephen Yego which came into his possession by virtue of his employment. 2. The Applicant was arraigned in court on 29/6/2023 where he pleaded "not guilty ". It was stated that on 25/6/2023 the complainant saw the Applicant his employee taking his animals for grazing at 8.00a.m. These were 60 goats, 45 sheep and 18 cows. He continued with his work. At 6.00p.m the Applicant did not return home which was unusual because he was to return with the stock at 4.00 p.m. He was alerted by his wife that the Applicant and the stock were missing. They telephoned the Applicant but his number was off. They then went to the grazing ground and found 17 cows. They were told by the village elder that the cows were left behind and he found them at 9.00 p.m. They looked for the other animals in vain. Later, they were tipped the Applicant was seen in Kariobangi. He alerted the police and they went to Kariobangi where the Applicant was arrested and taken to Joska police station. The Applicant was interrogated and he could not account for the stolen animals. The Applicant was thus charged. 3. The trial court thus entered " a plea of not guilty" and set the matter for hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14442/eng@2025-02-27 1
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4. On 20/7/2023 the Applicant informed the trial court that he had accepted the charges. The record refiects that the gravity of the sentence was explained to the Applicant and the charges were read over to the Applicant and he answered "it is true ". 5. Once the facts were read over to the Applicant, he responded that the facts were true. He was thus convicted on his own plea of guilt. In mitigation, the Applicant stated that the he met robbers who tied him and took him to unknown place. He stated that he was the one who called the complainant. 6. The Applicant thereafter stated that "the facts were true ". The Applicant was convicted of the offence of stealing by' servant contrary to section 281 of the Penal Code and sentenced to 5 years imprisonment without an option of a fine. 7. The Applicant has filed a chamber summons dated 5th August 2024 seeking for orders that: a. application for revision and the court to invoke section 137 (2a) of the CPC; b. application under section 333(2) of the CPC for the time he spent in custody to be considered in the sentence; c. the Court to further invoke the provisions of Article 50 (2) (p) of the Constitution. d. the Court to tender mercy and justice and be able to review the downward while invoking the principles of natural justice. 8. The State opposed the application and submitted that the trial court properly followed the procedure on the plea of guilt and that the sentence was proper and legal. 9. I have perused the trial court’s proceedings, considered the application and the respective submissions filed by parties. 10. The Applicant is neither challenging the procedure of entering the plea of guilty nor the conviction by the trial court. What this court can gather is that the Applicant seeks for review of the sentence from the 5 years imprisonment to a lesser imprisonment period. 11. The Applicant has also not sought for non-custodial sentence in the application. 12. The Applicant was charged with the offence of stealing by servant contrary to Section 281 of the Penal Code whichprovides that: 'If the offender is a clerk or servant and the thing being stolen is the property of his employer or came into the possession of the offender on the account of his employer, he is liable to imprisonment for seven years ' 13. The offence the Applicant was charged with carries a maximum sentence of seven (7) years imprisonment. 14. This court finds that the sentence imposed by the trial court was for a term of five (5) years and it is found to be lawful and lenient. Furthermore, there is no evidence tendered by the Applicant in this instant application that the trial court acted upon some wrong principle of law and failed to take into account the proper provisions of the law when passing the sentence warranting this court's intervention. This court notes that the application för review was also not supported by any certificates /Courses undertaken and/or letters of recommendation from the prison authorities to demonstrate that the Applicant had now reformed and was also a model prisoner. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14442/eng@2025-02-27 2
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15. This court is thus not persuaded that it should interfere with the same, the Applicant having failed to live up to the trust bestowed upon him to protect the livestock of his employer. The Applicant ought to have remembered that he had two wives and young children who relied on him for food and education before he could commit the offence. The Applicant by his commission of the offence herein ruined the retirement investment the complaint had toiled for over the years and put the complainant to almost zero point. 16. For the foregoing reasons I find this Application for review dated 5th August 2024 is devoid of any merit and the same is hereby dismissed. 17. The Appellant’s conviction and sentence be and are hereby upheld save that the period the Applicant spent in remand pending his trial shall be accounted for and reduced from the 5 years imprisonment pursuant to the provisions of Section 333(2) of the Criminal Procedure Code. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 27TH FEBRUARY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 27TH FEBRUARY 2025 In the presence of :...................... for Appellant ...................... for Respondent ...................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14442/eng@2025-02-27 3
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