[2018] KEHC 2499 (KLR)
The High Court found that the trial magistrate erred by imposing a sentence of forty years' imprisonment on each count without justification, especially given the appellant's plea of guilty and the absence of aggravating factors. The comment regarding the appellant's lack of remorse was deemed unwarranted and...
Source-derived case information.
- Citation
- [2018] KEHC 2499 (KLR)
- Parties
- Appellant: Job Wekesa Bwayo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 68 of 2016
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal on sentence allowed; sentences reduced.
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Robbery With Violence, Rape, Plea of Guilty, Mitigation, Statutory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Job Wekesa Bwayo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh and excessive in the circumstances.
- 2 Whether the trial court considered irrelevant factors or failed to consider relevant factors in sentencing the appellant.
- 3 Whether the statutory minimum sentence should have been imposed for the offences of rape and robbery with violence.
Ratio Decidendi
The High Court found that the trial magistrate erred by imposing a sentence of forty years' imprisonment on each count without justification, especially given the appellant's plea of guilty and the absence of aggravating factors. The comment regarding the appellant's lack of remorse was deemed unwarranted and prejudicial. The court held that the statutory minimum sentence should have been imposed for the offence of rape, and a similar sentence was appropriate for robbery with violence in the circumstances. The sentences were therefore reduced to ten years' imprisonment on each count, to run concurrently from the date of conviction.
Court Disposition
Appeal on sentence allowed; sentences reduced.
Orders
- The sentence on each count is substituted with a sentence of ten (10) years' imprisonment on each count to run concurrently.
- The sentences are to run from the date of conviction, 30th April 2013.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
CORAM: D. S. MAJANJA J.
CRIMINAL APPEAL NO. 68 OF 2016
BETWEEN
JOB WEKESA BWAYO.........................................APPELLANT
AND
REPUBLIC............................................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. J. Macharia– PM
dated 30th April 2013at the Senior Resident Magistrate’s Court
at Kerokain Criminal Case No. 204 of 2013)
JUDGMENT
1. The appellant was convicted on his own plea of guilty on two counts as follows. The first count was for robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on 12th March 2013 at Keroka Township in Masaba North District of Nyamira County, the appellant and his co-accused robbed JMM cash Kshs. 11,700/-, Samsung mobile phone valued at Kshs. 3,500 all valued at Kshs. 17,300/- and before or after such robbery used actual violence on the said JMM. The second charge was of rape contrary to section 3 (1) (a) (b) (3) of the Sexual Offences Act. It was alleged that on the same day, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of JMM without her consent.
2. The appellant was sentenced to serve forty (40) years imprisonment on each count with both sentence to run concurrently.He now appeals against the sentence only. He complains that the sentence was harsh and excessive in the circumstances.
3. The general principles upon which the first appellate court acts are now well settled. It has jurisdiction to interfere with a sentence imposed by the trial court if it is satisfied that in arriving at the sentence, the trial court did not take into account a relevant factor or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive (see Wanjema v Republic[1971] EA 493).
4. When called upon to offer his mitigation, the appellant stated as follows; “I have nothing to say but the court to decide my case as it sees fit.” Before imposing the sentence, the trial magistrate noted as follows, “I have considered the circumstances of the case. I have also considered that the accused has admitted the charges. He does not look remorseful at all. The offence he is facing is serious.”
5. I note that the mandatory minimum sentence for the offence of rape is 10 years’ imprisonment. I do not see why the trial magistrate increased it by 30 years given that he said nothing but admitted the charge.The comment that “He doesnot look remorseful at all” was unwarranted and in the circumstances prejudicial to the appellant. I therefore reduce the sentence to the statutory minimum of 10 years’ imprisonment. Likewise, I reduce the sentence of robbery with violence to ten years in view of the plea of guilty.
6. In reducing the sentence, I have taken into account the fate of the appellant’s co-accused. The 1st accused pleaded guilty and being a child was sentenced to 3 years at a Borstal Institution while the case against the 3rd accused was dismissed after witnesses failed to turn up and exhibits could not be produced at the trial.
7. For the reasons I have set out, I therefore allow the appeal on sentence only and substitute the sentence on each count with a sentence of ten (10) years imprisonment on each count to run concurrently and the sentences to run from the date of conviction, i.e, 30th April 2013.
DATEDand DELIVEREDat KISIIthis 9thday of NOVEMBER 2018.
D.S MAJANJA
JUDGE
Appellant in person.
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.