[2011] KEHC 377 (KLR)
The court held that once the appellant withdrew his appeal in its entirety, he lost the foundation to address the court on any matter relating to his trial, including the commencement date of his sentence. The court further affirmed that, as a matter of law and established practice, any sentence imposed upon a...
Source-derived case information.
- Citation
- [2011] KEHC 377 (KLR)
- Parties
- Appellant: Boniface Silimo Kakwera; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 617 of 2006
- Procedural Posture
- Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Commencement Date
- Outcome
- Appeal withdrawn; application regarding commencement date of sentence dismissed.
- Legal Topics
- Robbery With Violence, Sentencing Principles, Appeal Withdrawal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Silimo Kakwera
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Commencement Date
Legal Issues
- 1 Whether the appellant can make submissions on the commencement date of sentence after withdrawing the appeal.
- 2 Whether the sentence should commence from the date of arraignment or the date of pronouncement.
Ratio Decidendi
The court held that once the appellant withdrew his appeal in its entirety, he lost the foundation to address the court on any matter relating to his trial, including the commencement date of his sentence. The court further affirmed that, as a matter of law and established practice, any sentence imposed upon a convicted person commences on the date it is pronounced by the trial court, not the date of arraignment. The court found no justification for the appellant's request to have his sentence commence from the date he was first taken to court and declined to interfere with the sentence as pronounced by the trial magistrate.
Court Disposition
Appeal withdrawn; application regarding commencement date of sentence dismissed.
Orders
- The plea to alter the commencement date of the sentence is dismissed.
- The sentence of seven years imprisonment shall be deemed to have commenced on 13th October, 2006, the date of pronouncement by the trial magistrate.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CRIMINAL APPEAL NO. 617 OF 2006
BONIFACE SILIMO KAKWERA…………........……...………….APPELLANT
VERSUS
REPUBLIC ……………………………………………………..RESPONDENT
RULING
On 2nd March, 2010 this appeal was consolidated with Criminal Appeal No. 616 of 2006. When the two appeals were called out for hearing on the said date, the learned counsel for the Republic put the two appellants on notice that the state will seek enhancement of the sentence imposed by the trial court. The two appellants had originally been charged with and tried for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code.
After a full trial they were found guilty and each sentenced to seven (7) years imprisonment. The 1st appellant Hussein Ahmed Hash withdrew his appeal but the learned counsel for the 2nd appellant asked for time to consult with her client.
When this appeal came before us on 4th October, 2011, the learned counsel for the appellant withdrew the appeal entirely but submitted that whereas the appellant was sentenced to (7) seven years imprisonment, the learned trial magistrate did not set the commencement date. It was her submission that the date the appellant was taken to court should have been the starting point.
The appellant having withdrawn the appeal in its entirety lacked the foundation upon which to address the court on any matter relating to his trial, including the commencement date of his sentence. Whatever the case, it is common knowledge that, any sentence imposed upon a convicted person commences on the date it is pronounced, and never on the date is someone arraigned in court. There is no justification why the appellant through counsel wants his sentence to start from the date he was first taken to court. We find no substance whatsoever in such a submission. It is our finding that the sentence of (7) seven years imprisonment commenced on 13th October, 2006 when the learned trial magistrate pronounced the same to the appellant. We decline therefore to interfere with the said sentence and the plea to that effect is hereby dismissed.
Orders accordingly.
Dated, signed and delivered at Nairobi this 1st day of September, 2011.
…………………………………………………………
A.MBOGHOLI MSAGHAF.A. OCHIENG
JUDGEJUDGE