[2019] KEHC 4471 (KLR)
The court confirmed the conviction of the appellant, finding that the evidence and proceedings in the lower court were sound and that the appellant's conviction was proper. However, unlike the co-accused whose sentence was reduced on appeal, the court found that the appellant was the principal offender who inflicted...
Source-derived case information.
- Citation
- [2019] KEHC 4471 (KLR)
- Parties
- Appellant: Fred Tendwa Lumala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 52 of 2016
- Procedural Posture
- Criminal Appeal / Ruling on Appeal Against Conviction and Sentence
- Outcome
- conviction confirmed; sentence varied and enhanced
- Judges
- J Wakiaga
- Legal Topics
- Sentencing Principles, Appeal Against Sentence, Conviction Confirmation, Enhanced Sentencing, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Tendwa Lumala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the conviction of the appellant should be upheld based on the evidence and proceedings from the lower court.
- 2 Whether the sentence imposed on the appellant should be substituted or enhanced in light of the appellant's role in the offence.
Ratio Decidendi
The court confirmed the conviction of the appellant, finding that the evidence and proceedings in the lower court were sound and that the appellant's conviction was proper. However, unlike the co-accused whose sentence was reduced on appeal, the court found that the appellant was the principal offender who inflicted the fatal blow on the deceased in count one. The court considered this an aggravating factor warranting an enhanced sentence. The court substituted the death sentence with a term of thirty years imprisonment for count one, and imposed sentences of twenty years for counts two and three, and fifteen years for count four, all to run concurrently from 20th November 2012. The court...
Court Disposition
conviction confirmed; sentence varied and enhanced
Orders
- Conviction is confirmed.
- Death sentence on count one is substituted with thirty (30) years imprisonment.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
HCCRA NO 52 OF 2016
FRED TENDWA LUMALA .................................................APPELLANT
VERSUS
REPUBLIC...........................................................................RESPONDENT
(From the original Conviction and Sentence in the Criminal Case no 4969 of 2012 of the Principal Magistrate’s court at Eldoret H. Barraza – (PM)
R U L I N G
When the Appeal came up for hearing, my attention was drawn to the fact that the Appellant Co-accused at the Lower court had filed an Appeal Criminal Appeal No 81 of 2017 which was heard by Majanja- J and judgement therein delivered on 3rd day of June 2019, in which he affirmed the conviction but allowed the Appeal on sentence by setting aside the death sentence which he reduced to the following terms: -
COUNT 1 Twenty (20) years imprisonment
COUNT 2 Twenty (20) years imprisonment
COUNT 3 Twenty (20) years imprisonment
COUNT 4 Fifteen (15) years imprisonment
This appeal arising out of the same proceedings and same evidence is therefore to be treated as was in CRA NO 81/2017. I therefore confirm the conviction. On the sentence, I have been persuaded by the learned prosecutor that it is the Appellant before me who inflicted the fatal blow upon the deceased in count one and should therefore be given enhanced sentence and I agree with the said submissions. Not only did the Appellant take away the life of the complainant’s husband they proceeded to take away the intimate property by gang raping her. Which should be taken into account on sentence.
In respect of this appellant I therefore substitute the sentence on count one with an imprisonment period of (30) thirty years.
The death sentence is substituted with the following sentence to run concurrently from 20th November,2012.
a) COUNT 1 Thirty (30) years
b) COUNT 2 Twenty (20) years
c) COUNT 3 Twenty (20) years
d) COUNT 4 Fifteen (15) years
And it is ordered.
The Appellant has a right of appeal.
DATED, SIGNED and Delivered at ELDORET the 10th day of September,2019.
.........................................
J. WAKIAGA
JUDGE
10. 9.2019