[2005] KEHC 2121 (KLR)
The court found that the original sentence of ten years imprisonment was excessive given the circumstances of the case. The appellant did not know the deceased, there was no evidence of a grudge or premeditation, and the fatal attack was random and occurred while the appellant was intoxicated. The court accepted...
Source-derived case information.
- Citation
- [2005] KEHC 2121 (KLR)
- Parties
- Appellant: Joseph Cheruiyot Chelule; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 368 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Legal Topics
- Manslaughter, Sentencing Principles, Intoxication, Mens Rea, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Cheruiyot Chelule
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of ten years imprisonment for manslaughter was excessive in the circumstances of the case.
- 2 Whether the appellant's intoxication and lack of prior intent should mitigate the sentence imposed.
Ratio Decidendi
The court found that the original sentence of ten years imprisonment was excessive given the circumstances of the case. The appellant did not know the deceased, there was no evidence of a grudge or premeditation, and the fatal attack was random and occurred while the appellant was intoxicated. The court accepted that the appellant lacked the requisite mens rea for a harsher sentence and had shown remorse and willingness to reform. Consequently, the court held that the appeal on sentence had merit and substituted the ten-year sentence with a five-year term, effective from the date of original conviction and sentencing.
Court Disposition
sentence varied
Orders
- The sentence of ten years imprisonment imposed by the trial magistrate is set aside.
- The appellant is sentenced to serve five years imprisonment, effective from 24th July, 2003.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 368 of 2003
[From original conviction and sentence of criminal case no.1383 of 2002 of the
Senior Resident Magistrate’s Court at Molo – R.K. KIRUI – SRM]
JOSEPH CHERUIYOT CHELULE……...…….APPELLANT
VERSUS
REPUBLIC……………………………………RESPONDENT
JUDGMENT
The appellant, Josphat Cheruiyot Chelule, was charged with the offence of manslaughter contrary to section 202of the Penal Code. The particulars of the offence were that on the 27th of January, 2001 at Mwae village, Nyota Farm, Nakuru District, the appellant jointly with others not before court unlawfully killed Kipketer Arap Baraka (hereafter referred to as the deceased). The appellant pleaded not guilty to the charge. After a full trial, the appellant was convicted as charged. He was sentences to serve ten years imprisonment. The appellant was aggrieved by his sentencing and duly filed an appeal to this court.
In his petition of appeal, the appellant faulted the trial magistrate for sentencing him to too harsh a custodial sentence considering the fact that the appellant had been injured during the incident that led to the death of the deceased. The appellant urged the court to reconsider the circumstances of the case, especially the fact that the appellant was intoxicated when he committed the offence and according reduce the custodial sentence of ten years imposed on him. At the hearing of the appeal, the appellant basically reiterated his grounds of appeal. He told the court that he was remorseful and further that he had learnt from his mistake. He had also learned a trade (i.e carpentry) while in prison and was therefore ready to be a useful member of the society. He urged the court to consider reducing the sentence of ten years imposed on him to an appropriate lower sentence. Mr. Koech, on behalf of the State, left the issue of sentencing to the court.
I have carefully considered the circumstances under which the deceased met his death. The appellant told the lower court that he did not know the deceased prior to fatally injuring him. From the evidence adduced by the witnesses in the trial court and also the appellant’s own evidence, it is evident that there was no grudge or any reason for the appellant to have killed the deceased. The fatal attack appears to have been random and unpremeditated especially considering the fact that the appellant at the time was intoxicated. I agree with the appellant that the sentence meted on him was harsh in the circumstances of the case. The appellant lacked the requisite mens rea to attract such a harsh sentence. Since the appellant has all along admitted having unintentionally killed the deceased, and had not sought to appeal against his conviction, it is my view that the appellant’s appeal on sentence has merit.
In the circumstances therefore, the sentence of ten years imprisonment imposed by the trial magistrate is hereby set aside and substituted by an appropriate sentence of this court. The appellant is sentenced to serve five years imprisonment. The said imprisonment term ordered shall take effect from the 24th of July, 2003 when the appellant was convicted and sentenced by the trial magistrate.
It is so ordered.
DATED at NAKURUthis 29th day of July, 2005.
L. KIMARU
JUDGE