Newspapers reports on the anti-corruption case involving former Nominated Senator, Joy Gwendo insinuated that she was only fined KShs 660,000 after fraudulently acquiring KShs 1,731,732.
The truth of the matter is that Gwendo was ordered by the High Court to first comply with her plea bargain that is to deposit Ksh.1,731,732 into the Accounts of the Interested Party. She complied with the court order fully by paying the said amount.
The High Court sentence only dwelt on other pending issues, that is, that the accused Issued bad cheques (Count 3 and 4) and abuse of office (Count 5) The offenses attracts a penalty of fine or when in default serve an imprisonment term, hence the sentence read as:-
a) Ksh.30,000/= in default to serve 3 months in jail , for Count 3.
b) Ksh.30,000/= in default to serve 3 months in jail, in respect of Count 4.
c) Kshs.600,000/= in default to serve 1 year in jail in respect of count 5. Sentences to run consecutively.
Below is a background of the judgement
ACEC NAIROBI REVISION NO.19 OF 2018
HON. JOY GWENDO ………………………………………….. APPLICANT
The Applicant herein was arraigned before the Nairobi Chief Magistrate’s Court on 22nd January 2018 facing five counts ranging from stealing (Count 1), Forgery (Count 2), Issuing bad cheques (Count 3 and 4) and abuse of office (Count 5).
On 11th July 2018, the Applicant and the Prosecution entered into a plea bargaining agreement in accordance with Section 137A-O of the Criminal Procedure Code. Pursuant to the entry of the said agreement, the prosecution withdrew charges relating to stealing (Count 1) and forgery (Count 2) in fulfilment of the conditions set out in the Agreement. That as a consequence of the entry of the said agreement, the charges of stealing and forgery relating to counts 1 and 2 were dropped.
In the plea agreement, it was agreed that the sentence to be imposed upon conviction on her plea of guilty was within the sole discretion of the court and that during sentencing, the prosecutor would recommend a non-custodial sentence. Further, it was a condition that failure by the accused to comply with the terms and conditions of her plea agreement will permit the republic to fully prosecute the accused on all criminal charges that may be brought against her.
The applicant took plea to the three remaining counts on 6th August 2018 and pleaded guilty to the charges, promising to pay the amount due to the interested party as a result of issuing the bad cheques.
By 7th December 2018, the applicant informed the court that she had not made payment as directed. The Applicant was classified as a dishonest person and sentenced to serve 6 months imprisonment in respect of each of the 3rd and 4thcounts which sentences were to run concurrently and 2 years imprisonment in respect to count V.
The Applicant filed a revision Application in the High Court and was ordered to deposit Ksh.1,731,732/= into the Accounts of the Interested Party herein; she complied with the court order fully paying the amounts in the plea agreement. She was released on a cash bail of Ksh.400,000/= pending the hearing and determination of the revision Application before the High Court.
Further, despite having compensated the victims herein, The High Court heard and determined the revision application and sentenced the Applicant In accordance with the terms of the Plea Agreement in which the applicant herein (accused) was entitled to a non- custodial sentence. Since both offences attract a penalty of fine in default of serve an imprisonment term, the court exercised its supervisory powers of revision under Article 165 (6) & (7), and Section 362 of the CPC to mete out the sentence as hereunder.
Kindly take note that The Act provides for a maximum fine of Ksh.50,000/= in default to serve 6 months imprisonment in Counts 3 and 4, and Kshs.1,000,000/= in default to serve 10 years imprisonment in Count 5.
Hon. R. Aganyo, HSC