[2001] KECA 110 (KLR)
The Court of Appeal held that the trial judge exercised his discretion properly in sentencing the appellant to seven years' imprisonment for manslaughter. There was no evidence that the judge acted on a wrong principle, overlooked any material factor, or imposed an illegal or manifestly excessive sentence. The mere...
Source-derived case information.
- Citation
- [2001] KECA 110 (KLR)
- Parties
- Appellant: Alex Abuga Omache; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 152 of 2000
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- appeal dismissed
- Legal Topics
- Manslaughter, Sentencing Principles, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Abuga Omache
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of seven years' imprisonment for manslaughter was manifestly excessive or based on a wrong principle.
- 2 Whether the Court of Appeal should interfere with the trial judge's discretion in sentencing.
Ratio Decidendi
The Court of Appeal held that the trial judge exercised his discretion properly in sentencing the appellant to seven years' imprisonment for manslaughter. There was no evidence that the judge acted on a wrong principle, overlooked any material factor, or imposed an illegal or manifestly excessive sentence. The mere fact that the appellate court might have imposed a lesser sentence is not a ground for interference. The appeal against sentence was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU CORAM: CHUNGA, CJ, LAKHA & OWUOR, JJ.A. CRIMINAL APPEAL NO. 152 OF 2000 BETWEEN
ALEX ABUGA OMACHE ..................................... APPELLANT
AND
REPUBLIC .................,,....................................... RESPONDENT
(Appeal from the conviction & sentence of the High Court of Kenya at Kisii (Waweru J) dated 8th February, 2000 in H.C.CR.C. NO. 3 OF 2000) ****************
JUDGMENT OF THE COURT
In this case the appellant, ALEX ABUGA OMACHE, was convicted of manslaughter contrary to Section 202 as read with Section 205 of the Penal Codeby the superior court at Kisii (Waweru, J.) on 8 February 2000. He was sentenced to seven years' imprisonment. He appeals to this Court against sentence only.
The appellant and the deceased were brothers. They owned parcels of land that bordered each other. A dispute arose between them over a portion of land at their common boundary. They quarrelled and in the process started fighting. The appellant cut the deceased with a panga. The deceased received multiple cuts on the abdomen and the chest. He died on the way to hospital.
The appellant had pleaded guilty to the charge that on 3 August 1999 at Charachani sub-location in Nyamira District of Nyanza Province he unlawfully killed oneZACHARIAH MATUNDA.
We have carefully considered all the circumstances of this case. This was yet another needless killing of one brother by another. It is all the more pitiable because they were the only two sons in the family. But this Court will not condone the needless killings of human beings by people who should learn to control their tempers. The learned trial Judge passed this sentence of seven years' imprisonment as he was entitled to do and we cannot say that he acted upon any wrong principle in so doing. It may be that had this Court been trying the appellant, it might have passed a less severe sentence but that by itself is not a ground for interference and this Court will not normally interfere with the discretion exercised by a trial Judge in the matter of sentence unless it is evident that the Judge had acted upon some wrong principle or overlooked some material factor. In the present case the learned Judge has done neither. Nor is the sentence illegal, unlawful or excessive. Upon an appeal alleging undue severity of sentence, a Court of Appeal cannot properly interfere with the discretion of the trial Judge unless having regard to all the facts the sentence imposed is so severe (which in the present case it is not) as to amount to a miscarriage of justice.
The appeal is dismissed.
Dated and delivered at Kisumu this 22nd day of March, 2001.
B. CHUNGA
---------------
CHIEF JUSTICE
A. A. LAKHA
---------------
JUDGE OF APPEAL
E. OWUOR
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR