[2010] KEHC 3341 (KLR)
The court found that the trial court erred by not considering the 4 ½ years the appellant spent in remand custody prior to sentencing, as required by law. The judge also considered the appellant's deteriorating health, his status as a first offender, and the fact that he had already served a substantial period in...
Source-derived case information.
- Citation
- [2010] KEHC 3341 (KLR)
- Parties
- Appellant: Charles Khisa Wanjala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 58 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence reduced
- Legal Topics
- Sentencing Principles, Remand Period Credit, Manslaughter, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Khisa Wanjala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the appellant spent in remand when sentencing.
- 2 Whether the thirty-year sentence imposed on a first offender convicted of manslaughter was harsh or excessive.
Ratio Decidendi
The court found that the trial court erred by not considering the 4 ½ years the appellant spent in remand custody prior to sentencing, as required by law. The judge also considered the appellant's deteriorating health, his status as a first offender, and the fact that he had already served a substantial period in custody. The court held that the thirty-year sentence was harsh for a first offender convicted of manslaughter, especially given the mitigating circumstances. Accordingly, the sentence was substituted with a ten-year term of imprisonment, inclusive of the remand period, with the sentence to run from the date of arrest, 25/11/2002.
Court Disposition
appeal allowed in part; sentence reduced
Orders
- The sentence of thirty years imprisonment is set aside and substituted with ten years imprisonment inclusive of the remand period.
- The sentence shall run from 25/11/2002.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Criminal Appeal 58 of 2007
CHARLES KHISA WANJALA.......................................................APPELLANT
~VRS~
REPUBLIC...................................................................................RESPONDENT
JUDGMENT
The Appellant Charles Khisa Wanjala was convicted by Bungoma Principal Magistrate of the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code. He was sentenced to serve thirty years imprisonment. In his petition of appeal, the Appellant does not challenge conviction. He has mitigated for a lenient sentence on grounds that he is sickly of tuberculosis which has greatly weakened his health at the age of 55 years. He is the sole bred winner in his family of eight. It is the Appellant’s plea that the four (4) years he has spent in custody be considered because the trial court disregarded it.
The state conceded to the appeal and agreed that the trial court did not take into consideration the four year remand period spent by the Appellant during the trial. Mrs. Leting submitted that although the maximum sentence is life imprisonment, the sentence imposed of 30 years is too harsh.
The Appellant was arraigned in court on 27/10/2003. He had been arrested on 25/11/2002 and the record does not show where the appellant was for about one year before he was arraigned in court. The arresting officer is very clear in his testimony that he arrested the Appellant on 25/11/2002. The court record shows that the plea was taken a year later. I suppose the Appellant was first charged with murder in the High Court and the State later reduced the charge and arraigned him before the magistrate’s court. The accused was convicted and sentenced on 20/6/2007 which was after 4 ½ years of incarceration in prison remand. I agree with the state this period ought to have been considered in accordance with the provisions of the law. The sentence of thirty years for a first offender was harsh though not excessive. The Appellant has now served a prison term of about three (3) years plus the 4 ½ years remand period amounting to seven and half (7 ½ years). His health has deteriorated in prison and he now looks very frail. I hereby find the appeal merited and allow it accordingly. The sentence of thirty (30) years is substituted with ten (10) years imprisonment (inclusive of the remand period.) The time starts to run from the 25/11/2002.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed in open court this 23rd day of March 2010.
In the presence of the Appellant and the state counsel Mr. Onderi