Skip to content
JudgmentSAMUEL MWITHIGA WANJIKU VS The Republic3 min read

SAMUEL MWITHIGA WANJIKU VS The Republic

High Court at Mombasa High Court · · Wendy Micheni

(ORIGINATING FROM CRIMINAL CASE NUMBER E1171 0F 2024 IN THE CHIEF MAGISTRATE’S COURT AT MOMBASA (HON. D. ODHIAMBO S.R.M)

  1. The Applicant was found guilty on his own plea on the offence of Intentionally withholding payment delivered erroneously contrary to Section 35 of the Computer Misuse and Cybercrimes Act, 2018 and sentenced to 7 years imprisonment on 17th July 2024.
  2. A sentence review report dated 16th October 2024 by Stephen Muthoka intimated that the Applicant was willing to compensate the complainant who did not accept of agree to any terms. He however took responsibility of the offence and his actions of retaining the money he received and using it for personal things. He had been in custody for three months at the time of the interview and he had resolved to live according to societal expectation. He noted that the sentence imposed by the trial court was excessive and harsh and the same can be reviewed.
  3. According to the officer when the victim was interviewed and informed that this was about the money she turned violent and disconnected the call warning that she should never be called about it again. She added that it was not upon her to discuss court matters but the court should deal with it as it was.
  4. The report recommended that as to orders of compensation, the Honourable Court can issue orders it may deem fit as the complainants remained uncooperative and unwilling to be engaged on the same and the whole matter in its entirety. Following the claimant’s attitude orders as to compensate would prove hard supervise for compliance during the non – custodial supervision.

Analysis and Determination

5. Article 50 of the Constitution of Kenya provides for the rights of an accused person as follows: -

(2) Every accused person has the right to a fair trial, which included the right-

(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law. (emphasis mine)

6. This Court’s powers to review sentences are premised on Article 165 of the Constitution and Section 362 of the Criminal Procedure Code which provides as follows: -

Article 1651.

        1. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial, or quasi-judicial function, but not over a superior court.

Criminal Procedure Code362.

362. Power of the High Court to Call for Records

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court. (Emphasis mine)

7. Section 364 of the Criminal Procedure Code outlines the powers of the High Court under Article 165 of the Constitution and Section 362 of the Criminal Procedure Code and states how the powers are to be exercised. In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence. In the case of any other order other than an order of acquittal, alter or reverse the order.

8. I have considered the Sentence Review Report I find that the Applicant has served sufficient punishment. I set aside the sentence by the trial court and substitute the same with two (2) years probation sentence under the supervision of the County Probation office of Mombasa and compensation of the electronic payment of Kshs 200,000/-.     The   investigating officer to assist in tracing the complainant.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 31st DAY OF October 2024

    SAMUEL MWITHIGA WANJIKU VS The Republic SAMUEL MWITHIGA WANJIKU VS The Republic