[2023] KEHC 25302 (KLR)

Ebwangany v Republic (Criminal Appeal E005 of 2023) [2023] KEHC 25302 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25302 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E005 of 2023

AC Mrima, J

November 16, 2023

Between

John Nilimo Ebwangany

Appellant

and

Republic

Respondent

(Appeal arising out of the sentence of Hon. C. M. Kesse, (Senior Resident Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. 1409 of 2020 delivered on 3rd September, 2020)

Judgment

Introduction: 1. The Appellant herein, John Milimo Ebwangany, was charged before the Chief Magistrates Court at Kitale in Criminal Case No. 1409 of 2020 (hereinafter referred to as ‘the criminal case’) with the offence of Grievous Harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on 31st August, 2020 at Mugeiyot village, Kobos Sub-Location in Kwanza Sub-county within Trans-Nzoia County, the Appellant did grievous harm to Daniel Kipyego Biwot.

2. The Appellant admitted both the offence and the facts of the case thereby being convicted on his own plea of guilty. He was then sentenced to a prison term of 20 years.

The Appeal : 3. The Appellant was utterly aggrieved by the conviction and sentence. He sought leave to appeal out of time vide High Court Misc. Criminal Application No. E137 of 2021 which leave was granted on 16th January, 2023.

4. In his Petition of Appeal dated 19th January 2023, the Appellant challenged both the conviction and sentence.

5. Later, when the appeal came up for directions, the Appellant withdrew the appeal against conviction and pursued the one against the sentence.

6. He decried the severity of the sentence contending that it was quite harsh given the nature of the offence and faulted the trial Court of failing to adhere to the sentencing guidelines. He sought a non-custodial sentence.

7. The State left the matter to the discretion of the Court.

Analysis: 8. This is an appeal against sentence.

9. The High Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

10. This Court has considered this matter with caution and care. The trial Court conducted the sentencing proceedings. The Appellant tendered mitigations. The Court then sentenced the Appellant to 20 years imprisonment.

11. Sentencing is a crucial part in the criminal process and the administration of justice. It is also discretionary. In exercising the discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR.

12. This Court takes the position that even though sentencing remains discretionary on the Court and that the Court is not obliged to call for a Pre-sentence report, such a report, depending on the circumstances of a case, may greatly aid the Court in meeting the aims of sentencing. (See the Francis Karioko Muruatetu & another v Republic case (supra).

13. The Probation of Offenders Act as amended by Act Number 18 of 2018 defines ‘pre-sentence inquiry reports’ as follows: -Pre-sentence inquiry reports” means ‘the reports on accused persons or offenders prepared by probation officers under this Act or any other law in force for purposes of criminal justice administration.

14. The significance of pre-sentence report, as can be discerned from The Probation and After Care Guidelines for Social Investigations and Pre-sentence Reports, cannot be gainsaid. It serves the following purpose;Pre-sentence reports provide advisory information to the Courts with a view to the court making sentencing verdicts, including decisions on alternative measures to imprisonment.The investigations are conducted with the aim of collating verifiable information and for writing various assessment reports including pre-sentence reports.In sentencing decision making, social investigations help in:• Formulating plausible theoretical explanations of the criminal behaviour of an offender• Understanding the personality of the offender beyond the crime committed• Developing a basis for intervention/rehabilitation• Identifying resources required to effect change Identify and arrange for partnership with organizations which can aid the process of eventual rehabilitation• Gain knowledge of the culture and resources available in the local communities• Propose cogent measures necessary to address the identified ‘needs’ and forestall any risk of reoffending, including through an appropriate sentence.

15. In Consolidated Petition No. 97, 88 of 2021 and 90 of 2021 and 57 of 2021, Adan Maka Thulu -vs- Director of Public Prosecutions and, Kazungu Kalama Jojwa -vs- The Director of Public Prosecutions, the Court spoke to sentencing in the following manner:"…. As was held in Poonoo -vs- Republic, SCA 38 of 2010, sentencing an offender is not the mechanical application of letters and numbers in a formulaic table. It is the human deliberation of what is just punishment.…the fifth principle is that a citizen …… has a right to put in plea on mitigation to show that the imposition of the …..sentence is not warranted in his case. If the Court in considering all the facts and circumstances of the case comes to the conclusion that indeed is the case, the court would be perfectly entitled to read down the sentence …..."

16. It was on the basis of the foregoing that this Court called for a Pre-Sentence Report with a view of ascertaining whether the sentence ought to be interfered with.

17. This Court has considered the Pre-Sentence Report.

18. The Appellant was a first offender. He was remorseful. He had worked at the victim’s home stead as a herd’s boy for a long time. He blamed himself on indulging in alcohol where he easily lost his tempers after an argument. He pleaded for leniency.

19. The Court is well abreast of the principles on sentencing and the 2016 Judiciary of Kenya Sentencing Policy Guidelines. As stated by the Supreme Court of Kenya in Francis Karioko Muruatetu & another v Republic [2017] eKLR, despite their importance, the guidelines do not replace judicial discretion. This is what the Apex Court stated: -(72)We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process.

20. The purpose of sentencing is expounded in page 15, paragraph 4. 1 of the Sentencing Policy Guidelines as follows: -Sentences are imposed to meet the following objectives:1. Retribution: To punish the offender for his/her criminal conduct in a just manner.2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5. Community protection: To protect the community by incapacitating the offender.6. Denunciation: To communicate the community’s condemnation of the criminal conduct.

21. In sentencing, the Court considers various mitigating factors. Some include: -(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.

22. In this case, by considering the totality of the above coupled with the need to strike a balance between the Appellant, the victim and the community, this Court finds that the Appellant needs to undergo a rehabilitation program. That can be achieved while the Appellant is incarcerated. As such, he is not deserving of a non-custodial sentence.

23. However, this Court finds that the period of incarceration, considering the manner in which the offence was committed ought to be interfered with more so given that the Appellant was remorseful and pleaded guilty to the charge, to be too long. The sentence is, therefore, quite harsh in the circumstances of this case.

24. Consequently, the following orders do hereby issue: -a.The appeal against the conviction is marked as withdrawn.b.The appeal against the sentence is allowed. The sentence of 20 years’ imprisonment is hereby reviewed to 7 years’ imprisonment. Sentence to run as from 2nd September, 2020 when the accused was first arraigned before Court.c.File is hereby marked as closed.

25. Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -John Milimo Ebwangany,the Appellant in person.Miss Kiptoo, Learned Prosecution Counselinstructed by the Office of the Director of Public Prosecutions for theRespondent.Chemosop/Duke– Court Assistants.