John Nzomo Muthumbi v Republic

e. this Honourable Court invokes the provisions of Section 333 (2) of the Criminal Procedure Code and takes into account the period that I have been in custody. e. That, this honourable court to further issues orders that the sentences that that the appellant is serving run in concurrency basis as a further consideration for lenience of a sentence advocated in our noble constitution. 2. The applicant together with two others not parties to this appeal were charged with two Counts. On Count 1, they were charged with Burglary contrary to Section 306 (a) of the Penal Code. In Count 11, they were charged with stealing contrary to Section 268 as read with Section 275 of the Penal Code. In the alternative they were charged with handling stolen goods contrary to Section 322(2) of the Penal Code. 3. The applicant together with his co-accused persons were arraigned in court on 13th June 2023 to plead to the charges. Before the charges were read to them, the trial court explained to them the gravity of the sentences. All the accused persons including the applicant pleaded guilty to both counts 4. The facts were that on 9/6/2023 at around 0500 hours, the Complainant, Jonathan Mutunga went to open his shop at Soweto market. When he opened the front door and on entry, he noticed the iron sheet had been cut and a person gained entry. He did an inspection and noted the following items were stolen:2 bags of rice measuring 25 Kgs10 kgs of rice packed in 1kg bag10 litres of cooking oil1 bale of maize flour4 bottles of sodaA sub hoofer Vitron valued at Kshs.15,000/=Packets of sweets 5. He alerted the village elder who directed him to Kyevaluki police post where investigations commenced. The applicant was arrested and on interrogation, he acknowledged the ofience with other people. He named the 3rd Accused. The applicant then led the police to his home where he had hidden the items in a hole. The OCS Kakuyuni led the recovery of:20 kg of sugar19 kg of wheat flour40 kg of maize flour9 carrier bags9 1/2 pieces of bar soap4 predator drinks5 packets of Ngomba chewing gumI packet of diclofenac5 pieces of toss soap12 packets of glucose5 packets of PK chewing gum14 pieces of net wire washing powder28kg of rice10 packets of sweets1 dozen backing powder16 pieces of steel woo5 pieces of baby care jellypiece of Valon jelly3 pieces of Kaza jelly18 packets of Eden tea leaves11 pieces of drinking chocolate12 packets of Kensalt17 packets of Tuzo milkAll value Kshs.22,675/=Pexb.1 6. The applicant led the police to the 2nd accused’s village at Kithangaini which is within Kathiani SubCounty. Items were recovered from the 2nd accused as follows:1 kg of maize flour1/4 piece of bar soap.1 kg of sugar6 packets of tea leaves2 sunlight hand wash soap10 packets of sweets2 packets of Royco2 packets of glucoseI black radio-ST 5400All valued at Kshs.2,980/= - Pexb.2 7. The police went to the home of 3rd accused and recovered the following:1 black sub hoofer VitronElectrical extensionsAll valued at Kshs.4,000/= - Pexb.3. 8. The facts were read out to them and they all admitted that the facts were true. The applicant and his co-accused persons were convicted on their own pleas of guilty. The trial court then sentenced the applicant to serve for Count I: 9 years imprisonment and Count II: 3 years imprisonment. The sentences were to run concurrently. 9. The applicant filed the instant application basically inviting this court to exercise its unlimited original jurisdiction to hear and determine the application and review the consecutive sentences of nine (9) and three (3) years imprisonment and order the same to run concurrently based on Article 165 (3) (a), (7) of the constitution of Kenya, 2010. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6963/eng@2026-05-19 2

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10. The prosecution opposes the application on the ground that under Section 348 of the Criminal Procedure Code the applicant can only challenge the severity of the sentence having been convicted on his own plea of guilt. 11. The prosecution argue that the applicant is barred from seeking review of sentence from this court. Reliance is placed on Section 364 (5) of the Criminal Procedure Code which provides that: “ When an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the instant of the party who could have appealed” 12. Upon considering the application and the parties’ submissions on record, the issue that comes up for determination is what would be the appropriate sentence. However, I cannot do that without examining the charges and the sentence passed despite the plea of guilty whose process the applicant is not challenging. 13. First, it is clear that the applicant was not represented. He was charged in Count I under Section 306(a) of the Penal Code which states: 306. Breaking into building and committing felony Any person who— a. breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or b. breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years. 14. The charge sheet under Count I speaks about jointly breaking and entering the shop (Highway shop) of Jonathan Mithunga with intent to steal therein. The record shows the applicant then led the police to his home where he had hidden the items in a hole. Later, the applicant again led the police to the 2nd accused’s village at Kithangaini which is within Kathiani Sub-County and some items were recovered from the 2nd accused. The police were also led to the home of 3rd accused and recovered more items. 15. In Count II, the applicant was charged under Section 268 as read with Section 275 of the penal code which states: 268 (1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property. 275 provides for General punishment for theft: Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6963/eng@2026-05-19 3

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16. The charge under Count II speaks about jointly stealing goods as per the attached inventories respectively all valued at Kshs.30,000/= the property of Jonathan Muthinga. 17. In the alternative charge, the applicant was charged with handling stolen goods contrary to Section 322 (1)(2) of the penal code which states: 322. Handling stolen goods (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 with hard labour for a term not exceeding fourteen years. 18. The particulars of the alternative charge were that the applicant jointly otherwise than in the cause of stealing, dishonestly retained goods as per the attached inventories respectively knowing or having reasons to believe them to be stolen goods. 19. Article 50(2) (p) provides for the right of an accused person to the benefit of the least severe of the prescribed punishments for an ofience, the justice of each case can be achieved by the prosecution looking at the facts as presented by the investigating officer keenly and establishing whether those facts support a severe or a less severe charge, always keeping in mind that more often than not the person facing the charge is a lay person without the benefit of legal counsel. See Kyalo v Republic (Criminal Appeal E005 of 2023) [2023] KEHC 22596 (KLR) (22 September 2023) (Judgment) 20. In my humble view the prosecution established by facts the charges of breaking and stealing as against the applicant herein. However, as noted herein above, the maximum prescribed sentence for the ofience the applicant was charged with in Count 1 is 7 years and therefore the 9 years imposed on the applicant for the said charge can be said to be unlawful, severe and excessive. The same has to be disturbed by this court. Therefore, I proceed to alter the trial court’s sentence of nine (9) years in Count I and thereof substitute the same with a sentence of five (5) years imprisonment. 21. The sentence of 3 years imposed on Count 11 is found to be lawful and proper and this court will uphold the same. 22. In conclusion, I find that the appeal is merited, albeit partly only in respect to sentence for burglary which is substituted as aforestated. 23. The sentences are to run concurrently from the date of arrest of the Applicant which is on 11/06/2023. 24. Orders accordingly. File closed. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 19TH MAY 2026 NOEL ADAGI JUDGE VIRTUALLY ON TEAMS AT MACHAKOS THIS 19TH MAY 2026 In the presence of: In person....................................... for Applicant Ms. Agatha................................. for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6963/eng@2026-05-19 4

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Milly................................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6963/eng@2026-05-19 5

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