[2018] KEHC 2056 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL APPEAL NO. 12 OF 2016

ELIJAH GICHOMBE KIMANI.............APPELLANT

-VERSUS-

REPUBLIC............................................RESPONDENT

(Appeal from the Conviction and Sentence in decision before Hon. Okuche in CR. Case No. 1721 of 2015)

JUDGEMENT

Before me is a first appeal against sentence of the trial court passed on 12/4/2016.

BACKGROUND

The appellant was indicted before the lower court with the offence of Manslaughter contrary to section 202 as read with section 205 of the Penal Code. The brief facts which the appellant pleaded guilty to were: That on 28/8/2015 at about 10. 00pm he was having alcoholic drinks at Waruthini Bar. In the course of the drinking, a dispute arose regarding the paying of drinks for each other that resulted in the accused snatching some money from Peter Munene. This incident was reported to the deceased by Peter Munene. As the events progressed, the appellant got out of the bar and started to confront both Peter Munene and the deceased on the issue. This did escalate into a fight. The facts show that the accused overpowered the two by assaulting the deceased on the head occasioning fatal injuries. The appellant having pleaded guilty to these facts was sentenced to ten (10) years.

Being aggrieved with the sentence he has appealed to this court relying on the following grounds.

(a) That he is remorseful and that the court should take into account the circumstances in which the offence was committed.

(b) That he is the main breadwinner being depended upon by the sickly mother and young siblings.

In sentencing the appellant, the trial court stated as follows: “I have considered the mitigation of the accused however, I have into consideration that an innocent life was carelessly taken away.”

On Appeal

I have considered the submissions by the appellant and the respondent’s counsel on this matter on sentence of ten years. The offence of manslaughter defined under section 202 of the Penal Code carries a maximum penalty of life imprisonment. The admitted facts reveal that the death was as a result of a fight which broke out between the accused, the deceased and another victim not before court. The trial court considering all the facts noted that the offence was a serious one because it involved the death of a human being.

In dealing with the question whether the sentence of ten years imposed by the learned magistrate was appropriate, the court of Appeal has set the test for review or interference of the sentence based on the following guiding principles set out in the case of Ogolla v S/O Owuor v Republic 1954 EACA 270where the court stated that:

“The court does not alter sentence unless the trial Judge has acted upon wrong principles or overlooked same material factors. To this, we could add a record criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case. Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that some of these, the sentence itself is so excessive and therefore an error of principle must be interfered (Sayeka v Republic 198 eKLR).”

One of the most important features of our sentencing system is the provisions for appellate review of sentence particularly those emerging from the subordinate courts. The dominant characteristics of the appeal process involves the exercise of discretion to be performed upon assessment of the facts and decision of the trial court with a view to establish the following: Existence of an error, acting on wrong principles, allowing extraneous or irrelevant matters or failing to take into account relevant facts and in doing so arrived at a wrong sentence.

However it has been emphasized that the jurisdiction of the appellate courts in reviewing sentences on appeal does not necessarily mean solely that it has the power to impose a different sentence than that of the trial court. For the proposition in law on exercise of appellate jurisdiction on this issue the court in Barbaro v the Queen 2014 HCAobserved as follows:

“The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some ‘substantial wrong has in fact occurred’ in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an ‘available range’ of sentences, stating the bounds of an ‘available range’ of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall”

Due to the importance of sentencing in our criminal justice system, the judiciary developed a tool namely: sentencing policy guidelines 2016 to assist judicial officers as quick reference in making decisions at various levels of adjudication in criminal cases on sentences.

Within the framework of the policy are objectives taken into account in a manner meant to achieve the overall objectives in sentencing. They include: deterrence, rehabilitation, denunciation, punishment, and to reform the offender. The other elements in the policy deals with mandatory minimum sentences and principles on parity or proportionate of sentences. It will be necessary for effective sentences to reflect the application of these objectives and principles. If there is disconnect on the type of sentence imposed by our courts in the various offences it might be suggestive that all the factors which are said to be present in those cases have not been applied in line with the above principles.

It follows from the observations of the facts of this case and the law an appellate jurisdiction the court can only interfere or review a decision of the subordinate court upon precise findings as illustrated in the Ogola and Barbaro case Supra

In the instant appeal, I am guided by the above principles and do take into account the following factors: The appellant in this case pleaded guilty to the charge. As indicated in the pre-sentence report the appellant’s previous character and conduct within the community has been good. He also regrets the offence and the circumstances it occurred are very clear from the facts presented by the prosecution at the trial court. The appellant was indicted of the offence on 24/9/2015. He was later to plead guilty on 12/7/2016. Appellant was entitled to a normal discount by virtue of the provisions in section 333(1) of the Criminal Procedure Code in cognizance of the period he was held in custody. That was not the case as seen from the record of the learned trial magistrate. The chronology of events on 28/8/2015 as prescribed by the prosecution paint a picture of brawl which broke out in the bar. As the events unfolded it escalated into a full blown fight between the appellant and the deceased. The negation of culpability on grounds of intoxication on the part of the appellant cannot be wished away as a mitigating factor in this offence. However, it is necessary for this to be evaluated on a case by case basis.

In principle, there is nothing wrong with the sentence of ten years passed by the learned trial magistrate against the appellant. However for the reasons advanced above the mitigating factors outweigh the identified aggravated factors present in this appeal. Taking all the relevant factors into account the sentence imposed was manifestly hash, severe and excessive. It would be appropriate in my view to interfere with the sentence and substitute it with an imprisonment term of 5 years with effect from 12/7/2016.

Accordingly, the appeal is hereby partially allowed in terms of the period of imprisonment to be served by the appellant.

Dated, Signed and Delivered in open court at Kajiado this 26th July, 2018.

............................

R. NYAKUNDI

JUDGE

Representation

Mr. Meroka for the Director of Public Prosecutions

The appellant present in person