[2019] KEHC 1438 (KLR)
The appellate court found that while the trial court considered some mitigating factors, it failed to account for the period the appellant had already spent in custody, as mandated by section 333(2) of the Criminal Procedure Code. The court determined that this omission rendered the sentence manifestly excessive....
Source-derived case information.
- Citation
- [2019] KEHC 1438 (KLR)
- Parties
- Appellant: David Kang’ethe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 134 of 2017
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- sentence reduced on appeal
- Legal Topics
- Sentencing Principles, Mitigating Factors, Custodial Sentences, Rape Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kang’ethe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was manifestly excessive in light of the appellant being a first offender and other mitigating factors.
- 2 Whether the trial court failed to consider the period the appellant spent in custody as required by section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The appellate court found that while the trial court considered some mitigating factors, it failed to account for the period the appellant had already spent in custody, as mandated by section 333(2) of the Criminal Procedure Code. The court determined that this omission rendered the sentence manifestly excessive. After weighing both mitigating and aggravating factors, including the appellant's status as a first offender, his remorse, health condition, and the seriousness of the offence, the court concluded that a reduction of the custodial sentence was warranted. The sentence was therefore reduced from ten years to five years' imprisonment.
Court Disposition
sentence reduced on appeal
Orders
- The appellant's sentence is reduced to five years' imprisonment, to be served from the date of conviction.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAROK
CRIMINAL APPEAL NO. 134 OF 2017
DAVID KANG’ETHE................................................APPELLANT
VERSUS
REPUBLIC..............................................................RESPONDENT
(Being an appeal from the judgement, conviction and sentence of Hon. H. Ng’ang’a, SRM,
dated 18th October 2017, in the Chief Magistrate’s Court at Narok,
in Criminal Case No. 26 of 2017, Republic v David Kang’ethe)
JUDGEMENT
1. The appellant was convicted and sentenced to ten years’ imprisonment in respect of the offence of rape (being count 1) and assault (being count 2) and was sentence to ten years’ imprisonment in count 1 and 2 years’ imprisonment in count 2, which sentences were ordered to run concurrently.
2. He only has appealed against sentence. In his petition of appeal, the appellant has raised five grounds of appeal. He has faulted the trial court for imposing a manifestly excessive sentence in view of the fact that he was a first offender and now he is remorseful. Additionally, he has urged the court that he is a young man with a bright future, who supports his extended family. He now has developed high blood pressure while in prison and has therefore urged the court to impose a non-custodial sentence.
3. The trial court found that the rape was beastly. It took into account the mitigating factors, but never took into account the period he had been in custody, which is a mandatory requirement under section 333 (2) of the Criminal Procedure Code (Cap 75) laws of Kenya. The period he has been in custody is a mitigating factor.
4. After taking into account both the mitigating and aggravating factors, I hereby reduce the sentence to five years’ imprisonment, which he now has to serve.
Judgement signed, dated and delivered in open court at Narok this 4th day of December, 2019 in the presence of the Appellant and Mr. Omwega for the Respondent.
J. M. Bwonwong’a
Judge
4/12/2019