[2010] KEHC 2422 (KLR)
The court held that the appellant, having pleaded guilty, could not challenge her conviction in light of section 348 of the Criminal Procedure Code. However, the trial court erred by not considering the nearly five years the appellant spent in remand custody before conviction. Taking into account the total period of...
Source-derived case information.
- Citation
- [2010] KEHC 2422 (KLR)
- Parties
- Appellant: Alice Nekesa Wanyonyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 111 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part
- Legal Topics
- Manslaughter, Plea of Guilty, Sentencing Principles, Remand Period, Mitigation, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alice Nekesa Wanyonyi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant can challenge the conviction after pleading guilty.
- 2 Whether the trial court erred in failing to consider the remand period in sentencing.
- 3 Whether the sentence imposed was excessive given the appellant's circumstances.
Ratio Decidendi
The court held that the appellant, having pleaded guilty, could not challenge her conviction in light of section 348 of the Criminal Procedure Code. However, the trial court erred by not considering the nearly five years the appellant spent in remand custody before conviction. Taking into account the total period of incarceration, the court found the original seven-year sentence excessive. The sentence was substituted with six years' imprisonment to run from the date of first remand, effectively resulting in the appellant's immediate release, given the time already served and her personal circumstances as the sole surviving parent of minor children.
Court Disposition
appeal allowed in part
Orders
- The seven (7) years imprisonment is set aside and substituted with six (6) years imprisonment to run from 4th November, 2004.
- The appellant is deemed to have fully served the sentence and is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Criminal Appeal 111 of 2008
ALICE NEKESA WANYONYI.........................................APPELLANT
~VRS~
REPUBLIC....................................................................RESPONDENT
(Appeal arising from BGM CM CR. NO.1960 of 2008)
JUDGMENT
Alice Nekesa Wanyonyi herein referred to as the Appellant was convicted by Bungoma Senior Resident Magistrate of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and sentenced to serve seven (7) years imprisonment.
Inher petition of appeal, the Appellant challenges both conviction and sentence.The Appellant was convicted on her own plea of guilty on 23. 10. 2008. The provisions of section 348 of the Criminal Procedure Code bars the Appellant from challenging conviction.It is not in dispute that the Appellant does not raise any issues on how the plea was taken.I agree with the state that the conviction should be left undisturbed.I therefore uphold it accordingly.
On sentence, the court handed in seven (7) years imprisonment to the Appellant.The offence took place on the 3/11/2004 and the arrest was effected immediately.By the time she was convicted, the Appellant had stayed in custody awaiting trial for murder for a period of four (4) years and ten (10) months.The charge was reduced to manslaughter on 22/10/2008. The trial court seems not to have taken into consideration this remand period.The deceased was her husband.In mitigation, the Appellant said that she had been married to the deceased for 27 years and the two had nine surviving children out of eleven (11).Being the only living parent, the court ought to have given a more lenient sentence to enable the Appellant to go home and look after the children who are still under the age of majority.
The Appellant has now served about one and half years.Added to the period in custody of about five years, the period of incarceration translates to six and half (6 ½) years.All the above considered, I set aside the seven (7) years imprisonment and substitute it with six (6) years imprisonment to run from the 4th November, 2004. In effect, the Appellant has fully served and is hereby set at liberty unless otherwise lawfully held.
Dated and delivered on the 17th day of June, 2010
F. N. MUCHEMI
JUDGE.
in the presence of:-
The Appellant
The State Counsel Mrs. Leting.
F. N. MUCHEMI
JUDGE.