[2019] KEHC 8267 (KLR)
The court held that while the conviction for arson was proper, the sentence of five years' imprisonment was excessive in light of the fact that the offence arose from a family dispute, the parties had reconciled, and the complainant had forgiven the appellants. The Probation Service recommended a non-custodial...
Source-derived case information.
- Citation
- [2019] KEHC 8267 (KLR)
- Parties
- Appellant: Emmanuel Kipsat Cherop; Appellant: Raymond Kiplagat Cherop; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 87 & 88 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction affirmed, sentence reduced to time served, appellants released
- Judges
- DAS Majanja
- Legal Topics
- Arson, Sentencing Review, Non Custodial Sentence, Family Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Kipsat Cherop
Appellant
Raymond Kiplagat Cherop
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years' imprisonment for arson was appropriate in the circumstances of the case.
- 2 Whether the trial court should have considered a non-custodial sentence given the family context and reconciliation.
Ratio Decidendi
The court held that while the conviction for arson was proper, the sentence of five years' imprisonment was excessive in light of the fact that the offence arose from a family dispute, the parties had reconciled, and the complainant had forgiven the appellants. The Probation Service recommended a non-custodial sentence, and the community had already intervened to resolve the matter. Therefore, the trial court ought to have considered a non-custodial sentence. The High Court affirmed the conviction but quashed the custodial sentence, reducing it to time served, and ordered the immediate release of the appellants unless otherwise lawfully held.
Court Disposition
conviction affirmed, sentence reduced to time served, appellants released
Orders
- The conviction is affirmed.
- The sentence of five years' imprisonment is quashed and substituted with time served.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CORAM: D. S. MAJANJA J.
CRIMINAL APPEAL NO. 87 OF 2018
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 88 OF 2018
BETWEEN
EMMANUEL KIPSAT CHEROP............1ST APPELLANT
RAYMOND KIPLAGAT CHEROP........2ND APPELLANT
AND
REPUBLIC.................................................. RESPONDENT
(Being an appeal against the original conviction and sentence of Hon. H. M. Nyaberi, SPM dated 8th October 2018 at the Magistrates Court at Eldoret in Criminal Case No. 98 of 2017)
JUDGMENT
1. The appellants, EMMANUEL KIPSAT CHEROP and RAYMOND KIPLAGAT CHEROP were convicted of the offence of arson contrary to section 332(a) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the offence were that on 15th February, 2017 at about 9. 00 pm at Kwalel Village, Elgeyo Marakwet County, they willfully and unlawfully set fire to their four roomed iron sheet house valued at Kshs. 200,000/= the property of Priscah Jepkogei Kipsat.
2. At the hearing of the appeal, the appellant withdrew their appeal on the conviction and urged the court to revise the sentence of five years’ imprisonment imposed on them. I heard the plea of Priscah Jepkosgei, who is the 1st appellant’s wife and sister in law to the 2nd appellant, who prayed that they be released. I have also looked at the Probation Service Pre-sentencing report which recommended a non-custodial sentence.
3. I have looked at the sentencing notes and I note that the community had already intervened and had already brought the appellants and complainant together and that they had forgiven each other. Since the matter was a family issue, the trial court ought to have considered a non-custodial sentence.
4. Considering all the circumstances, I affirm the conviction but quash the sentence and reduce the same to time served. The appellants are set free unless otherwise lawfully held under a separate warrant.
DATED and DELIVERED at ELDORET this 23rd day of APRIL 2019.
D.S. MAJANJA
JUDGE
Appellant in person.
Ms Oduor, Prosecution Counsel, instructed by the Director of Public Prosecutions for the respondent.