[2021] KEHC 9625 (KLR)
The High Court found that the trial court imposed the statutory minimum sentence of five years' imprisonment for attempted rape without considering the Supreme Court's guidance in Francis Muruatetu & Another v. Republic, which held that courts are not strictly bound by statutory minimum sentences. Additionally, the...
Source-derived case information.
- Citation
- [2021] KEHC 9625 (KLR)
- Parties
- Appellant: Barnabas Taalam; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 38 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Sentencing Principles, Sexual Offences, Statutory Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barnabas Taalam
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years' imprisonment for attempted rape was excessive in light of the Supreme Court decision in Francis Muruatetu & Another v. Republic.
- 2 Whether the trial court properly considered the period the appellant spent in pre-trial custody as required by section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The High Court found that the trial court imposed the statutory minimum sentence of five years' imprisonment for attempted rape without considering the Supreme Court's guidance in Francis Muruatetu & Another v. Republic, which held that courts are not strictly bound by statutory minimum sentences. Additionally, the trial court failed to properly account for the period the appellant spent in pre-trial custody as mandated by section 333(2) of the Criminal Procedure Code. Given that the appellant had already served over three years in prison and three months in pre-trial custody, the High Court determined that the sentence was manifestly excessive. The sentence was therefore reduced to the...
Court Disposition
appeal_allowed
Orders
- The sentence imposed is reduced to the period already served.
- The appellant is to be released forthwith unless held on other lawful warrants.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
CRIMINAL APPEAL NO 38 OF 2019
BARNABAS TAALAM....................................................................................APPELLANT
VERSUS
REPUBLIC.....................................................................................................RESPONDENT
(Being an appeal from the original sentence of Hon S.O. TEMU, PM, dated 20th December 2017
in S.O. Criminal Case No 25 of 2017 in the Senior Principal Magistrate’s Court
at Kabarnet, Republic v Barnabas Taalam)
JUDGMENT
In his petition to this court the appellant has challenged both his conviction and sentence of five years’ imprisonment in respect of the offence of attempted rape contrary to section 4 of the Sexual Offences Act No. 3 of 2006.
During oral hearing in this court the appellant appeared to have abandoned his appeal against conviction. He only submitted on sentence; in respect of which he urged the court to release him since he was due to be released in two months’ time; having served most of his term of imprisonment. Additionally, he urged the court to take into account the period he has been in custody in considering his appeal as regards sentence.
Mr. Mong’are for the respondent supported the sentence arguing that it was not excessive in the circumstances of the case.
I have considered the submissions of the appellant. As a first appeal court I am required to re-evaluate the sentence imposed and make my own findings in that regard.
I find that in sentencing the appellant the trial court imposed the prescribed statutory minimum sentence of imprisonment of five years. Following the Supreme Court decision in Francis Muruatetu & Another V. Republic [2017] e-KLR,courts are no longer bound to sentence an accused to the minimum prescribed statutory sentence.
Furthermore, I find that the appellant was in pre-trial remand custody from 25/9/2017 to 20/12/2017,which translates to about three months.The appellant has also been in prison custody since 20/12/2017 to date,which translates to slightly over three years. The court is bound to take these periods into account as mandatorily required of it by section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.
In the light of the foregoing, I find that the sentence imposed is manifestly excessive.
In the premises, the appellant’s appeal succeeds with the result that the sentence imposed is reduced to that he has served and is hereby ordered released forthwith unless held on other lawful warrants.
Judgment dated, signed and delivered in open court at Kabarnet this 27th day of January 2021.
J M BWONWONG’A
JUDGE
In the presence of:
Mr. Kemboi Court Assistant.
Appellant present in person.
Mr. Mong’are for Respondent.