[2017] KEHC 731 (KLR)
The court found that although the appellant was properly convicted on his own unequivocal plea of guilty, the sentence of ten years imprisonment was excessive given the circumstances. The appellant was a first offender, had shown remorse, had already served over three and a half years in prison, and had mitigating...
Source-derived case information.
- Citation
- [2017] KEHC 731 (KLR)
- Parties
- Appellant: Katana Kitsan Gona; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 90 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on conviction dismissed; appeal on sentence allowed.
- Judges
- SJ Chitembwe, CC Kipkorir
- Legal Topics
- Unnatural Offence, Sentencing Principles, Plea of Guilty, Mitigation, First Offender, Remorse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katana Kitsan Gona
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for the offence of unnatural offence was harsh or excessive.
- 2 Whether the appellant's plea of guilty was unequivocal and valid.
- 3 Whether the period already served by the appellant constituted sufficient punishment.
Ratio Decidendi
The court found that although the appellant was properly convicted on his own unequivocal plea of guilty, the sentence of ten years imprisonment was excessive given the circumstances. The appellant was a first offender, had shown remorse, had already served over three and a half years in prison, and had mitigating personal circumstances. The maximum sentence for the offence is fourteen years, but the court exercised its discretion to set aside the ten-year sentence and substitute it with the period already served, holding that this was sufficient punishment in the circumstances.
Court Disposition
Appeal on conviction dismissed; appeal on sentence allowed.
Orders
- The sentence of ten years imprisonment is set aside and replaced with the period already served.
- The appellant shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL APPEAL NO. 90 OF 2013
KATANA KITSAN GONA............................APPELLANT
VERSUS
REPUBLIC .................................................RESPONDENT
JUDGEMENT
The appellant was charged with unnatural offence Contrary to Section 162(b) of the Penal Code. The particulars of the offence were that the appellant on the 25th of November 2013 at Dabaso village, Gede location within Kilifi County had carnal knowledge of a goat. The appellant pleaded guilty and was sentenced to serve ten (10) years imprisonment.
The grounds of appeal are that are:-
1. The appellant saved Judicial time by pleading guilty to the charge
2. The appellant has served a substantial part of the sentence
3. The appellant is a first offender
4. The sentence is harsh ad he is remorseful.
In his submission the appellant submit that he has learnt from his mistakes. The time he has spent in custody has taught him a lesson. He is a first offender and is very remorseful.
The state opposed the appeal. Mr. Fedha, prosecution counsel, submit that the appellant pleaded guilty. The facts were read over to the appellant. Exhibits were produced and the appellant was convicted on his own plea of guilty. The conviction is safe.
The record shows that the plea was taken on 27. 11. 2013. The appellant pleaded guilty. The file was taken to another magistrate on 28. 11. 2017 who had the charge read again to the appellant and he pleaded guilty. The facts were read over and the appellant pleaded guilty. The trial court allowed the appellant to mitigate. I do find that the plea is unequivocal and the appellant willingly pleaded guilty to the charge.
Basically the appellant is contending that the sentence is harsh or excessive. Under section 162(b) the punishment provided for the offence is fourteen years. That is the maximum sentence. The appellant told the court that he is a first offender. He is remorseful. He has a disabled wife at home and he takes care of her. The appellant was sentenced to serve ten (10) years in November, 2013. He has now served over 3 ½ years in prison. Taking the circumstances of the case and the fact that the appellant pleaded guilty, I do find that the period already served in prison is enough punishment. I do agree that the sentence is excessive. I do set aside the ten (10) years imprisonment and replace it with the period already served.
In the end, the appeal on conviction is disallowed. The appeal on sentence is allowed. The sentence is hereby set aside and replaced with the period already served. The appellant shall be set at liberty unless otherwise lawfully held.
Dated and signed at Marsabit this…… day of...….. 2017
SAID CHITEMBWE
JUDGE
Dated and Delivered at Malindi this 6th day of December, 2017
WELDON KORIR
JUDGE