1. Denuel Mokua Nyanyundo - alias Denuel Mukua Nyanyundo was charged with 2 counts for the offense of stealing contrary to section 268 as read with section 275 of the Penal Code and computer fraud contrary to section 26(1) (c) of the computer misuse and cybercrimes Act No. 5 of 2018 before the Chief Magistrate’s Court at Makueni in Cr. No. 154 of 2025.
2. On the stealing charge contrary to section 268 as read with section 275 of the penal code the particulars were that on 30th March, 2025 in Wote Location, Makueni Subcounty within Makueni County Stole mobile phone make Redmi note 14 valued at Kshs. 26,500 the property of Nancy Nyambura Muraya.
3. On the 2nd count regarding Computer Fraud contrary to section 20(1) (c) of the computer misuse and cybercrimes Act No.5 of 2018, the particulars were that on 30th March, 2025, same time and place, using unauthorised access means fraudulently transferred Kshs. 137,812 from money market fund client code 123802M registered under Nancy Nyambura Muraya to his Mpesa account 0707210344 registered under him thereby gaining the said amount fraudulently
4. He was convicted on his own plea of guilty and sentenced on 3/4/2025 to serve three (3) years imprisonment for each count without an option of fine
5. Aggrieved he filed this appeal on the following grounds: -
a) Excessive, Harsh and Hard Sentences;
The sentence imposed on the appellant was manifestly hard, excessively harsh, punitive and failed to consider the appellant’s mitigation, personal circumstances and the principles of rehabilitation under Kenyan Law.
The trial court did not give sufficient weight to the fact that the appellant pleaded guilty, saving judicial time and showing remorse (Section 216 of the CPC)
b) Lack of option for fine
The sentences herein did not provide for an alternative fine and hence making the mandatory sentences unjustly severe.
The appellant submits that the court should exercise discretion under article 165(3) of the constitution to vary the sentence.
c) Precedents on Sentencing
Kenyan courts have held that mandatory minimum sentences may be reviewed for proportionality.
The appellant relies in the case of Isaya Otieno V Republic [2018] KEHC 1854 (KLR) where the court reduced a similar sentence.
d) Mitigating Factors
The trial court failed to consider that the appellant is a first - time offender with no prior criminal record.
The appellant pleaded guilty, demonstrating remorse and co-operation.
The appellant is a young man and an orphan.
The appellant being a clinician might lose his job.
The appellant has shown genuine remorse and is willing to reform .
1. Mr. Kazungu for the DPP did not oppose the appeal.
2. The only issue for determination is the sentence.
3. I sought a Social Inquiry Report about him from PACs.
4. On the day it was presented the Probation officer informed the court that the victim of the offence was in court and wanted to address the court.
5. Nancy Nyambura Muraya told the court that she had been compensated at the tune of Ksh 120,000 and wished that the appellant could get a non-custodial sentence.
6. I have perused the report.
7. At the time of the committing the offense the appellant was residing within Makueni County Referral Hospital staff quarters where he had been a clinical officer since 2021. He was in a relationship with the victim and they were residing together in the same facility. At that time the victim was an intern at the same hospital. That the appellant had been suffering from betting addiction and would always sacrifice all his savings to bet believing that he would hit a big one day. The appellant conceded to taking the victim’s phone and transferring the money from her phone to his phone to ODI BET believing that the money would multiply and he would be able to refund her money. That did not happen and that’s how he ended up here.
8. The victim was shocked by the appellant’s action of stealing from her as she had struggled to save the money for over a year and wondered how the appellant managed to access her mobile pin number and to transfer the amount without her permission. She was of the view that the appellant had breached her trust.
9. She did however receive compensation of Kenya shillings 120,000 through her impersonal number from the appellant’s guardian.
10. The appellant’s extended family and the local administration was shocked to learn that the appellant was in prison as he was respected as a doctor and highly valued by the local community in this village Bigogo village Mwabosire sub location, Sengera location.
11. The appellant and the victim have reconciled and the victim has forgiven him.
12. So, what sentence should this Appellant get?
13. Section 348 of the Criminal Procedure Code states;
No appeal on plea of guilty, nor in petty cases
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
14. This court is only allowed to interfere with the sentence as to its extent or its legality.
15. S. 268 of the Penal Code provides for the offence of stealing and s. 275 provides the sentence. It states;
275. 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.
16. For the offence of Computer Fraud, the Computer Misuse and Cybercrimes Cap. 79C states:
26. Computer fraud
1, (1) A person who, with fraudulent or dishonest intent—(a)unlawfully gains;
(b)occasions unlawful loss to another person; or
(c)obtains an economic benefit for oneself or for another person, through any of the means described in subsection (2), commits an offence and is liable, on conviction, to a fine not exceeding twenty million shillings or imprisonment term for a term not exceeding ten years, or to both.
17. The learned trial court exercised its discretion and sentenced him to three years’ imprisonment on each count to run concurrently.
18. These sentences are legal.
19. Regarding their extent; perhaps for the first count this would appear excessive due to the fact that that is the maximum sentence. But for the second count one could argue that it was lenient.
20. However, the appellant was a first offender, he pleaded guilty to the charge, and though the money was not recovered, it was recoverable, considering the relationship between the appellant and the victim, and there was breach of trust that needed to be restored. Had the trial court sought a pre-sentence report, the further fact of the appellant’s addiction to betting would have emerged and the need to address that as part of the sentence would have arisen. That is the point of the Sentencing Policy Guidelines.
21. Paragraph 2.3.15 of the SPGs 2023 states:
In deciding whether to impose a custodial or a non-custodial sentence, the following factors should be considered:
i. Gravity of the offence:
In the absence of aggravating circumstances, or any other circumstance that renders a non-custodial sentence unsuitable, a sentence of imprisonment should be avoided with respect to sentences that have been adjudged as deserving less than three (3) years.
ii. Criminal history of the offender: Taking into account the seriousness of the offence, first offenders should be considered for non-custodial sentences except where the seriousness of the offence crosses the custody threshold as set out in paragraph 2.3.13 above. When dealing with repeat offenders, consideration should be given to the nature of the previous behaviour and the time that has elapsed between the previous conviction and the current offence. For adult offenders with previous convictions that relate to offences committed when the offender was a child, these should be disregarded unless the circumstances of the case demand that they be taken into account owing to the similarity or frequency of the behaviour, or the seriousness of the previous offence(s). In any event, previous convictions should not be taken into consideration unless they are either admitted or proved. iii. Children in conflict with the law: …
. iv. Conduct of the offender:
non-custodial sentences are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
v. Protection of the community :
Where there is evidence that the offender is likely to pose a threat to the community, a custodial sentence may be more appropriate. The probation officer`s report should inform the court of the risk posed by the offender to the community 48 in order to inform sentencing. vi. Offender’s responsibility to third parties: Where committing an offender to a custodial sentence is likely to unduly prejudice others, particularly vulnerable persons who depend on them, a court should consider if, in light of the nature and seriousness of the offence, the objectives of sentencing can be met with a non-custodial sentence or a suspended sentence (see paragraph 2.11 of these Guidelines). The court should enquire into the offender’s personal circumstances and, where appropriate, seek the assistance of a pre-sentence report.
22. Evidently this was one of those cases that a non-custodial sentence would have been suitable.
23. Addiction to betting and gambling is a fact in the public domain and the damage it is causing is going unattended to, yet the law does not address it the same way it addresses addiction to alcohol. Betting, Lotteries and Gaming Act Cap. 131 does not provide for the treatment/ rehabilitation of addiction unlike the Alcoholic Drinks Control Act Cap 121 which contains provisions for the rehabilitation of persons addicted to alcohol in the following ways:
i. Section 4 provides for a relevant agency whose roles will include
(b)promote national treatment and rehabilitation programmes;
(ea)provide support and assistance in the establishment of treatment and rehabilitation programmes that shall recognize alcoholism as a disease;
ii. Section 5 provides for the establishment of the Alcoholic Drinks Control Fund. At s 5(4) The Fund shall be used for meeting the capital and recurrent expenditure relating to inter alia —
(a)research, documentation and dissemination of information on alcoholic drinks;
(b)promoting national cessation and rehabilitation programs
iii. S. 33 provides for circumstances under which a person can (a)be ordered by the convicting Magistrate to undergo at his own cost, such rehabilitation programme as may be appropriate in a public health institution ;
24. It is also noteworthy that the National Authority for the Campaign Against Alcohol and Drug Abuse Act Cap. 122 is also not helpful as the same addresses alcohol and substance use and abuse disorders.
25. The need to hold those who trade in gambling of all forms accountable has grown with the growing of this problem and it is high time the law was amended appropriately
26. That stated the appellant’s counsel Mr. Onyancha urged the court to grant the applicant a non-custodial sentence.
27. I have carefully considered the report on the appellant. He is remorseful, the money has been refunded. I am persuaded that a conditional non-custodial sentence would suffice. The following orders issue:
i. The Sentence of three year’s imprisonment is set aside and substituted with a conditional probation supervision order for 2 years with effect from the date of this order.
ii. In addition, the appellant is to attend addiction treatment at his own cost for at least three months in an institution of his choice.
iii. The PACs Officer to ensure that the offender has taken up the treatment and that he completes the same. In default the PACs officer to inform the court for appropriate action.
iv. The appellant to report to the PACs officer as and when required but at least once every month in the first four months.
v. Mention before the Deputy Registrar after the first month to confirm progress on 3rd July 2025, and any further date with the consultation of the Probation officer .
Dated, signed and delivered virtually this 3rd June 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant
Appellant
Kazungu for Appellant
Mr. Onyancha for appellant
2. On the stealing charge contrary to section 268 as read with section 275 of the penal code the particulars were that on 30th March, 2025 in Wote Location, Makueni Subcounty within Makueni County Stole mobile phone make Redmi note 14 valued at Kshs. 26,500 the property of Nancy Nyambura Muraya.
3. On the 2nd count regarding Computer Fraud contrary to section 20(1) (c) of the computer misuse and cybercrimes Act No.5 of 2018, the particulars were that on 30th March, 2025, same time and place, using unauthorised access means fraudulently transferred Kshs. 137,812 from money market fund client code 123802M registered under Nancy Nyambura Muraya to his Mpesa account 0707210344 registered under him thereby gaining the said amount fraudulently
4. He was convicted on his own plea of guilty and sentenced on 3/4/2025 to serve three (3) years imprisonment for each count without an option of fine
5. Aggrieved he filed this appeal on the following grounds: -
a) Excessive, Harsh and Hard Sentences;
The sentence imposed on the appellant was manifestly hard, excessively harsh, punitive and failed to consider the appellant’s mitigation, personal circumstances and the principles of rehabilitation under Kenyan Law.
The trial court did not give sufficient weight to the fact that the appellant pleaded guilty, saving judicial time and showing remorse (Section 216 of the CPC)
b) Lack of option for fine
The sentences herein did not provide for an alternative fine and hence making the mandatory sentences unjustly severe.
The appellant submits that the court should exercise discretion under article 165(3) of the constitution to vary the sentence.
c) Precedents on Sentencing
Kenyan courts have held that mandatory minimum sentences may be reviewed for proportionality.
The appellant relies in the case of Isaya Otieno V Republic [2018] KEHC 1854 (KLR) where the court reduced a similar sentence.
d) Mitigating Factors
The trial court failed to consider that the appellant is a first - time offender with no prior criminal record.
The appellant pleaded guilty, demonstrating remorse and co-operation.
The appellant is a young man and an orphan.
The appellant being a clinician might lose his job.
The appellant has shown genuine remorse and is willing to reform .
1. Mr. Kazungu for the DPP did not oppose the appeal.
2. The only issue for determination is the sentence.
3. I sought a Social Inquiry Report about him from PACs.
4. On the day it was presented the Probation officer informed the court that the victim of the offence was in court and wanted to address the court.
5. Nancy Nyambura Muraya told the court that she had been compensated at the tune of Ksh 120,000 and wished that the appellant could get a non-custodial sentence.
6. I have perused the report.
7. At the time of the committing the offense the appellant was residing within Makueni County Referral Hospital staff quarters where he had been a clinical officer since 2021. He was in a relationship with the victim and they were residing together in the same facility. At that time the victim was an intern at the same hospital. That the appellant had been suffering from betting addiction and would always sacrifice all his savings to bet believing that he would hit a big one day. The appellant conceded to taking the victim’s phone and transferring the money from her phone to his phone to ODI BET believing that the money would multiply and he would be able to refund her money. That did not happen and that’s how he ended up here.
8. The victim was shocked by the appellant’s action of stealing from her as she had struggled to save the money for over a year and wondered how the appellant managed to access her mobile pin number and to transfer the amount without her permission. She was of the view that the appellant had breached her trust.
9. She did however receive compensation of Kenya shillings 120,000 through her impersonal number from the appellant’s guardian.
10. The appellant’s extended family and the local administration was shocked to learn that the appellant was in prison as he was respected as a doctor and highly valued by the local community in this village Bigogo village Mwabosire sub location, Sengera location.
11. The appellant and the victim have reconciled and the victim has forgiven him.
12. So, what sentence should this Appellant get?
13. Section 348 of the Criminal Procedure Code states;
No appeal on plea of guilty, nor in petty cases
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
14. This court is only allowed to interfere with the sentence as to its extent or its legality.
15. S. 268 of the Penal Code provides for the offence of stealing and s. 275 provides the sentence. It states;
275. 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.
16. For the offence of Computer Fraud, the Computer Misuse and Cybercrimes Cap. 79C states:
26. Computer fraud
1, (1) A person who, with fraudulent or dishonest intent—(a)unlawfully gains;
(b)occasions unlawful loss to another person; or
(c)obtains an economic benefit for oneself or for another person, through any of the means described in subsection (2), commits an offence and is liable, on conviction, to a fine not exceeding twenty million shillings or imprisonment term for a term not exceeding ten years, or to both.
17. The learned trial court exercised its discretion and sentenced him to three years’ imprisonment on each count to run concurrently.
18. These sentences are legal.
19. Regarding their extent; perhaps for the first count this would appear excessive due to the fact that that is the maximum sentence. But for the second count one could argue that it was lenient.
20. However, the appellant was a first offender, he pleaded guilty to the charge, and though the money was not recovered, it was recoverable, considering the relationship between the appellant and the victim, and there was breach of trust that needed to be restored. Had the trial court sought a pre-sentence report, the further fact of the appellant’s addiction to betting would have emerged and the need to address that as part of the sentence would have arisen. That is the point of the Sentencing Policy Guidelines.
21. Paragraph 2.3.15 of the SPGs 2023 states:
In deciding whether to impose a custodial or a non-custodial sentence, the following factors should be considered:
i. Gravity of the offence:
In the absence of aggravating circumstances, or any other circumstance that renders a non-custodial sentence unsuitable, a sentence of imprisonment should be avoided with respect to sentences that have been adjudged as deserving less than three (3) years.
ii. Criminal history of the offender: Taking into account the seriousness of the offence, first offenders should be considered for non-custodial sentences except where the seriousness of the offence crosses the custody threshold as set out in paragraph 2.3.13 above. When dealing with repeat offenders, consideration should be given to the nature of the previous behaviour and the time that has elapsed between the previous conviction and the current offence. For adult offenders with previous convictions that relate to offences committed when the offender was a child, these should be disregarded unless the circumstances of the case demand that they be taken into account owing to the similarity or frequency of the behaviour, or the seriousness of the previous offence(s). In any event, previous convictions should not be taken into consideration unless they are either admitted or proved. iii. Children in conflict with the law: …
. iv. Conduct of the offender:
non-custodial sentences are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
v. Protection of the community :
Where there is evidence that the offender is likely to pose a threat to the community, a custodial sentence may be more appropriate. The probation officer`s report should inform the court of the risk posed by the offender to the community 48 in order to inform sentencing. vi. Offender’s responsibility to third parties: Where committing an offender to a custodial sentence is likely to unduly prejudice others, particularly vulnerable persons who depend on them, a court should consider if, in light of the nature and seriousness of the offence, the objectives of sentencing can be met with a non-custodial sentence or a suspended sentence (see paragraph 2.11 of these Guidelines). The court should enquire into the offender’s personal circumstances and, where appropriate, seek the assistance of a pre-sentence report.
22. Evidently this was one of those cases that a non-custodial sentence would have been suitable.
23. Addiction to betting and gambling is a fact in the public domain and the damage it is causing is going unattended to, yet the law does not address it the same way it addresses addiction to alcohol. Betting, Lotteries and Gaming Act Cap. 131 does not provide for the treatment/ rehabilitation of addiction unlike the Alcoholic Drinks Control Act Cap 121 which contains provisions for the rehabilitation of persons addicted to alcohol in the following ways:
i. Section 4 provides for a relevant agency whose roles will include
(b)promote national treatment and rehabilitation programmes;
(ea)provide support and assistance in the establishment of treatment and rehabilitation programmes that shall recognize alcoholism as a disease;
ii. Section 5 provides for the establishment of the Alcoholic Drinks Control Fund. At s 5(4) The Fund shall be used for meeting the capital and recurrent expenditure relating to inter alia —
(a)research, documentation and dissemination of information on alcoholic drinks;
(b)promoting national cessation and rehabilitation programs
iii. S. 33 provides for circumstances under which a person can (a)be ordered by the convicting Magistrate to undergo at his own cost, such rehabilitation programme as may be appropriate in a public health institution ;
24. It is also noteworthy that the National Authority for the Campaign Against Alcohol and Drug Abuse Act Cap. 122 is also not helpful as the same addresses alcohol and substance use and abuse disorders.
25. The need to hold those who trade in gambling of all forms accountable has grown with the growing of this problem and it is high time the law was amended appropriately
26. That stated the appellant’s counsel Mr. Onyancha urged the court to grant the applicant a non-custodial sentence.
27. I have carefully considered the report on the appellant. He is remorseful, the money has been refunded. I am persuaded that a conditional non-custodial sentence would suffice. The following orders issue:
i. The Sentence of three year’s imprisonment is set aside and substituted with a conditional probation supervision order for 2 years with effect from the date of this order.
ii. In addition, the appellant is to attend addiction treatment at his own cost for at least three months in an institution of his choice.
iii. The PACs Officer to ensure that the offender has taken up the treatment and that he completes the same. In default the PACs officer to inform the court for appropriate action.
iv. The appellant to report to the PACs officer as and when required but at least once every month in the first four months.
v. Mention before the Deputy Registrar after the first month to confirm progress on 3rd July 2025, and any further date with the consultation of the Probation officer .
Dated, signed and delivered virtually this 3rd June 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant
Appellant
Kazungu for Appellant
Mr. Onyancha for appellant