[2022] KEHC 1641 (KLR)
The court found that the appellant, having pleaded guilty and served a substantial period in custody, should be treated equally with his co-accused whose sentence was previously reduced to the period served. The principles of proportionality and equality before the law require that similarly situated offenders...
Source-derived case information.
- Citation
- [2022] KEHC 1641 (KLR)
- Parties
- Appellant: Charles Kimutai Koech; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 020 of 2020
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to period served; appellant to be set free unless otherwise lawfully held
- Judges
- AN Ongeri
- Legal Topics
- Sentencing Principles, Equality Before Law, Preparation to Commit Felony, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kimutai Koech
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 10 years imprisonment imposed on the appellant was excessive and disproportionate.
- 2 Whether the appellant is entitled to equal treatment as his co-accused whose sentence was reduced to time served.
- 3 Whether the period already served by the appellant is sufficient punishment for the offence of preparation to commit a felony.
Ratio Decidendi
The court found that the appellant, having pleaded guilty and served a substantial period in custody, should be treated equally with his co-accused whose sentence was previously reduced to the period served. The principles of proportionality and equality before the law require that similarly situated offenders receive similar sentences. The court exercised its appellate powers under section 354(3)(b) of the Criminal Procedure Code to reduce the appellant's sentence to the period already served, holding that this period was sufficient punishment for the offence of preparation to commit a felony. The order was also extended to the appellant's co-accused who were jointly charged.
Court Disposition
sentence reduced to period served; appellant to be set free unless otherwise lawfully held
Orders
- The appellant's sentence is reduced to the period already served.
- The appellant is to be set free forthwith unless lawfully held for any other reason.
Full Case Text
Judgment text and source record
29 paragraphs
HIGH COURT OF KENYA
AT KERICHO
CRIMINAL APPEAL NO. E 020 OF 2020
CHARLES KIMUTAI KOECH...................................................................APPELLANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
(Being an appeal from the sentence of 10 years imprisonment
by Hon. J. Ndururi (PM)in Kericho CMCC No.2753 of 2016
delivered on 15/8/2016)
JUDGMENT
1. The Appellant CHARLES KIMUTAI KOECH was charged with four (4) others with the offence of preparation to commit a felony Contrary to Section 308 (1) of the Penal Code.
2. The Appellant and the four (4) Co-Accused pleaded guilty to the charge and they were each sentenced to ten (10) years imprisonment.
3. They appealed against the sentence but the appeal was summarily dismissed.
4. The Appellants appealed to the Court of Appeal against the summarily dismissal order and the dismissal order was set aside.
5. This Court allowed an appeal by ROBERT ONKOBA and reduced his sentence to the period served from 15/8/2016 to 22/3/2021 when the Judgment was delivered by this Court.
6. I have considered the submissions by the appellant herein Charles Kimutai Koech and I find that they are similar to those submitted by his Co-Appellant.
7. The Appellant was joined in this appeal by Gilbert Kiruiand Kelvin Kiptoo who were jointly charged with the Appellant herein and Robert Onkoba who was discharged by this Court on 22/3/2021.
8. The Law requires that parties be treated equally before the law, article 27 (1) of the Constitution of Kenya, 2010 states as follows: "Every person is equal before the law and has the right to equal protection and equal benefit of the law."
9. In the celebrated case of REPUBLIC VS. THOMAS PATRICK GILBERT CHOLMONDELEY [2009] eKLRthe court took cognizance of the principles in sentencing to wit "(a) Principle of Proportionality- This principle requires that the sentence imposed should reflect the seriousness of the offence and (b) Principle of Equality before the law -The said principle requires that sentencing decisions should treat offenders equally, irrespective of their wealth, race, their colour, sex, employment or family status."(Emphasis added)
10. I have considered the fact that the Appellant pleaded guilty to the charge and saved the Court’s time for conducting the trial.
11. I also find that the period the Appellant has been in custody is sufficient to teach him a vital lesson that crime does not pay.
12. The High Court is clothed with powers conferred to it as a court of appeal, that is to wit, the power to increase, reduce or alter the nature of a sentence vide section 354 3 (b) of the Criminal Procedure Code which states as follows;
Powers of the High Court
…. "(b)in an appeal against sentence, to increase or reduce the sentence or alter the nature of the sentence"
13. I accordingly reduce his sentence to the period already served and I accordingly order that the Appellant be set free forthwith unless lawfully held for any other reason.
14. This order to apply to Gilbert Kirui and Kelvin Kiptoo who were jointly charged with the Appellant herein.
DELIVERED, DATED AND SIGNED AT KERICHO THIS 4TH DAY OF MARCH, 2022.
A. N. ONGERI
JUDGE