[2010] KECA 347 (KLR)
The Court of Appeal held that the trial judge exercised his sentencing discretion properly, having considered all relevant factors including the appellant's intoxication, first offender status, and time spent in custody. The sentence of seven years imprisonment was not manifestly harsh or excessive in the...
Source-derived case information.
- Citation
- [2010] KECA 347 (KLR)
- Parties
- Appellant: Justin Kipkosgei Kibiton; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 302 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- ARM Visram
- Legal Topics
- Manslaughter, Sentencing Discretion, Appeal on Sentence, Intoxication, First Offender, Causation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justin Kipkosgei Kibiton
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for manslaughter was manifestly harsh or excessive.
- 2 Whether the trial judge exercised discretion properly in sentencing the appellant.
- 3 Whether intoxication and the appellant's status as a first offender warranted a reduction of sentence.
Ratio Decidendi
The Court of Appeal held that the trial judge exercised his sentencing discretion properly, having considered all relevant factors including the appellant's intoxication, first offender status, and time spent in custody. The sentence of seven years imprisonment was not manifestly harsh or excessive in the circumstances. The fact that the deceased died from a secondary infection was immaterial, as the infection was a direct result of the stab wound inflicted by the appellant. There was no basis for the appellate court to substitute its discretion for that of the trial judge, and thus the appeal against sentence was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal as to sentence is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CRIMINAL APPEAL NO. 302 OF 2008
JUSTIN KIPKOSGEI KIBITON …………….............................…………… APPELLANT
AND
REPUBLIC …………………………………………..........................…… RESPONDENT
(Appeal from a sentence and conviction of the High Court of Kenya at Nairobi
(Apondi, J) dated 30th April, 2008
In
H.C.CR.C. NO. 31 OF 2006)
***********************
JUDGMENT OF THE COURT
The appellant was, after the trial, convicted of manslaughter, rather than murder of which he had been charged and on which he had been tried. He did not plead guilty to any charge. He was sentenced to seven years imprisonment. The appellant now pleads with us that we reduce the sentence largely on the basis that he was drunk and became irrational. The appellant was convicted of manslaughter simply because the Judge thought he was drunk. In sentencing him the Judge took into account all the relevant factors; he took into account the fact that the appellant was a first offender and the period for which he had been in custody awaiting his trial. Sentence is simply an exercise in discretion by a trial court and an appeal court can only interfere if in arriving at the sentence the trial court has failed to take into account a relevant factor or has taken into account an irrelevant factor, or looked at with regard to the surrounding circumstances the sentence is manifestly harsh and excessive. None of these factors are available to the appellant in this case. That the deceased died from secondary infection can really be neither here nor there. The secondary infection was caused by the stab-wound inflicted by the appellant and she died within a year and a day. It would be wrong for us to substitute the exercise of discretion by the Judge with our own discretion. There is no basis upon which we can interfere and we accordingly order that the appeal as to sentence be and is hereby dismissed.
Dated and delivered at Nairobi this 24th day of March, 2010.
R.S.C. OMOLO
………………………..
JUDGE OF APPEAL
S.E.O. BOSIRE
………………………….
JUDGE OF APPEAL
ALNASHIR VISRAM
…………………………….
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR.