- The applicants in this matter were charged and tried together in Milimani Chief Magistrates court Criminal Case No. E539 of 2022 with the offence of attempts of extortion contrary to Section 300 (1) (a) (ii) (iv) (2) as read with Section 389 of the Penal Code which offence attracts an imprisonment term of 14 years.
- The applicants were convicted and sentenced to a 4 -year jail term.
- The applicants have approached this court seeking a reduction of sentence relying on Section 333 (2) of the Criminal Procedure Code. At the hearing of the applications the applicants sought through counsel to have miscellaneous criminal application No.1258 consolidated with E1257 of 2024 and heard together. The applications were accordingly consolidated and proceeded under file No.E571 of 2024 which was opened in respect of the two applications.
- The two applicants contend that the learned Honorable Court did not take into account the period of spent in custody during trial.
- The two applicants further rely on the provisions of Articles 23 (1)(3), 25 (c), 27, 28 and 50 of the Constitution of Kenya.
- In their submissions, the two applicants have urged the court to consider that they mitigated before the trial magistrate but the learned trial court did not attach any weight to their mitigation.
- The two have further urged this court to consider that they have learned from their 1 year 7 months stint in prison thus they have reformed and become better citizens.
- The applicants have beseeched this court to consider giving them an unconditional discharge or a non- custodial sentence.
- It is their argument that the period of 8 months that is left should be deducted from the sentence so that they are immediately set free.
- The court has reviewed the lower court file in order to determine whether the trial court in sentencing the two applicants took into consideration the period of detention during trial.
- The trial court in its sentencing notes recorded on 7th December 2023 stated the following:
- “ I have taken into account the mitigation and the aggravating circumstances in this matter .
- In addition, I have taken into account Section 333 (2) of the Criminal Procedure Code and observed that the accused persons have been in custody for a period of over two years. Therefore, the accused are hereby convicted and sentenced to serve 4 years imprisonment”
- It follows therefore from a reading of the above quoted excerpt of the record that the trial court was alive to the period spent in custody during trial and went ahead to impose the 4- year prison term.
- In an attempt to appreciate the rationale behind the 4- year period of imprisonment, I have gone through the record of the lower court and established that the two applicants together with 3 others were charged with the offence of Attempts at extortion contrary to Section 300 (1) (a) (ii) (iv) (2) as read with Section 389 of the Penal Code. The particulars of the charge being that with intent to extort money from Abdul Aziz, they threatened to solicit Ksh. 3 million from the said Abdul Aziz by causing his son Naveed Abdul Aziz to make a false phone call that he had been involved in a road traffic accident along Kiambu road near Quick Mart Supermarket.
- Firstly, this court has noted that the evidence on record revealed that the applicants and their accomplices were a merciless gang of extortionists which employed not only threats but also violence upon its victims.
- The complainant’s evidence in the matter depicts the gang as a very dangerous lot of people that should never be allowed to operate in the midst of a civilized society. The gang was callous in the matter they went about extorting money.
- It is not news in this country anymore that extortionists have kidnapped innocent persons, demanded ransom from their kin and in some very disturbing and gruesome incidents ended up killing their abductees if their demands are not met. This is a matter that this court takes judicial notice of under Section 60 of the Evidence Act.
- It would be a great travesty of justice to allow persons of the caliber of the applicants’ court to freely roam about our streets. The trial court was very lenient with them in sentencing.
- The victim of kidnap and his relatives should forever remain grateful to the police officers who came to their aid swiftly and rescued the victim Naveed Abdul Aziz from the hands of his captors. The intervention by the officers was, to say the least, very commendable and timely.
- It must have been a very traumatizing moment for the victim and the family.
- The applicants have basically urged this court to have mercy on them. Unfortunately, this is not one of those cases where mercy can easily flow in favor of the applicants given the circumstances surrounding the commission of the offence.
- The applicants ought to serve the full term of imprisonment, if not for anything else, to remind them that crime does not pay and they must never allow their greed to ever lead them down that road once they leave prison. Indeed, considering that the offence attracts a prison term of 14 years, the sentence imposed by the learned Honorable magistrate was manifestly lenient considering that the applicants and their co-accused did not only threaten to use violence but also physically assaulted the abductee.
- Having established that the lower court took into account the period they had spent in custody during trial this court finds that their applications are not merited and are hereby dismissed.
- Let the two continue serving the remaining period for purposes of deterrence and rehabilitation. The action by the two applicants and their accomplices was barbaric and deeply traumatizing to the victim.
- It is so ordered.