[2021] KEHC 9106 (KLR)
The High Court found that the trial court erred in law by failing to consider the period the appellant had spent in pre-trial custody as required by section 333(2) of the Criminal Procedure Code. Additionally, the trial court failed to consider that the stolen bag had been recovered, which should have mitigated the...
Source-derived case information.
- Citation
- [2021] KEHC 9106 (KLR)
- Parties
- Appellant: Evans Chebii; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 70 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Sentencing Principles, Pre Trial Custody Credit, First Offender Mitigation, Recovery of Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Chebii
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in failing to consider the pre-trial custody period when sentencing the appellant.
- 2 Whether the recovery of the stolen property should have impacted the sentence imposed on the appellant.
- 3 Whether the trial court erred in ordering the release of the exhibit before the expiry of the appeal period.
Ratio Decidendi
The High Court found that the trial court erred in law by failing to consider the period the appellant had spent in pre-trial custody as required by section 333(2) of the Criminal Procedure Code. Additionally, the trial court failed to consider that the stolen bag had been recovered, which should have mitigated the sentence. The court also noted that the premature release of the exhibit before the expiry of the appeal period was an error of law. Given that the appellant had already served over one year in custody and considering the above errors, the High Court determined that the interests of justice had been served and allowed the appeal, ordering the appellant's release unless held on...
Court Disposition
appeal allowed
Orders
- The appellant is set free unless held on other lawful warrants.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
CRIMINAL APPEAL NO 70 OF 2019
EVANS CHEBII.............................................................................................APPELLANT
VERSUS
REPUBLIC.................................................................................................RESPONDENT
(Being an appeal from the original sentence of Hon P.C. Biwott, SPM, dated 4th December 2019
in Criminal Case No 801 of2019 in the Senior Principal Magistrate’s Court
at Kabarnet, Republic v Evans Chebii)
JUDGMENT
In his petition to this court the appellant has appealed against his sentence of three years’ imprisonment in respect of the offence of stealing contrary to section 268 of the Penal Code (Cap 63) Laws of Kenya.
In his mitigation in this court, the appellant has submitted as follows. He is a first offender and he pleaded guilty. He is the bread winner of his family which consists of his wife and two children. The children are staying with his old grandmother, who cannot provide for them.
The appellant has urged the court to impose a sentence of a reasonable fine, so that he can go home to take care of his family. He has in the alternative prayed for a non-custodial sentence.
The has also stated that he is remorseful and has promised to stop drinking alcohol and be a good citizen.
Mr. Mong’are, counsel for the respondent left the matter of sentence to the court to decide.
In sentencing the appellant, the trial court took into account that he was a first offender and that he was remorseful. The court then proceeded to sentence the appellant to three years’ imprisonment.
In addition to the foregoing, the court ordered the recovered bag of the victim returned to him.
This is a first appeal and I am required as a first appeal court to independently re-assess the issue of sentence and make my own findings. I have done so. As a result, I find that the trial court did not consider the period the appellant had been in custody from 26/10/2019 to 4/12/2019, which translates to a period of slightly one month. He was mandatorily required to take that pre-trial custody period into account by section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya. In this regard, the trial court failed to do so.
In addition to the foregoing, the trial court also failed to take into account that the stolen bag of the victim had been recovered.
Due to these errors of law, this court is entitled to interfere with the sentencing discretion of the trial court in that regard.
I find that the appellant has now been in custody for over one year.
It is important to point out that the trial court should not have ordered for the release of the exhibit produced before it until the period allowed for appeal has expired. In ordering for the release of recovered bag to the complainant before the expiry of the appeal period the trial court committed an error of law. The reason for this is that in the event the appeal is allowed on account of being defective, a re-trial may not be ordered. Additionally, the exhibits may be connected with the issues that are raised in the first appeal court that require the physical viewing of those exhibits. The absence of those exhibits may impede the hearing and determination of the appeal.
I find that the interests of justice have been served for the period the appellant has been in custody.
In the premises, the appellant’s appeal succeeds with the result that he ordered set free unless he is held on other lawful warrants.
Judgment dated, signed and delivered in open court at Kabarnet this 9th day of February 2021.
J M BWONWONG’A
JUDGE
In the presence of:
Mr. Kemboi Court Assistant.
Appellant present in person.
Mr. Mong’are for the Respondent.