[2019] KEHC 7711 (KLR)
The High Court found that while the sentencing court considered relevant issues and obtained a Pre-Sentence Report, it erred by failing to account for the period the appellants had already spent on death row since 13/10/2010. The court held that this period should have been deducted from the 20-year sentence imposed...
Source-derived case information.
- Citation
- [2019] KEHC 7711 (KLR)
- Parties
- Appellant: Kennedy Otieno Dalmas; Appellant: Dan Oluoch Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 6 of 2019
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence After Re Sentencing
- Outcome
- Appeal allowed in part; sentence commencement date adjusted.
- Judges
- AC Mrima
- Legal Topics
- Robbery With Violence, Sentencing Principles, Resentencing, Death Penalty Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Otieno Dalmas
Appellant
Dan Oluoch Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence After Re Sentencing
Legal Issues
- 1 Whether the sentencing court erred by not considering the period the appellants spent on death row when re-sentencing.
- 2 Whether the sentence of 20 years' imprisonment was harsh and excessive in the circumstances.
Ratio Decidendi
The High Court found that while the sentencing court considered relevant issues and obtained a Pre-Sentence Report, it erred by failing to account for the period the appellants had already spent on death row since 13/10/2010. The court held that this period should have been deducted from the 20-year sentence imposed during re-sentencing. Consequently, the order that the sentences run from 22/01/2019 was set aside, and it was ordered that the 20-year sentences run from 13/10/2010, the date of the original sentencing. This adjustment ensures that the time already served is properly credited, in line with established sentencing principles and recent jurisprudence.
Court Disposition
Appeal allowed in part; sentence commencement date adjusted.
Orders
- The order that the sentences of 20 years' imprisonment shall start running from 22/01/2019 is set aside.
- The sentences of 20 years' imprisonment shall instead run from 13/10/2010, the date of original sentencing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. 6 OF 2019
1. KENNEDY OTIENO DALMAS
2. DAN OLUOCH OTIENO.................................APPELLANTS
-VERSUS-
REPUBLIC............................................................RESPONDENT
(Being an appeal on sentence arising from the conviction and sentence by Hon. R. Odenyo, Senior Principal Magistrate in Migori Chief Magistrate’s Criminal Cases No. 670 of 2019 delivered on 22/01/2019)
JUDGMENT
1. The Appellants herein were charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. They denied the offence and a trial was held where they were found guilty as charged, convicted and sentenced to suffer death. Their appeals to the High Court and the Court of Appeal were both unsuccessful.
2. Following the decision of the Supreme Court in Francis Karioko Muruatetu& Another v. Republic (2017) eKLRthe Appellants petitioned this Court for sentence re-hearing and the Petition was allowed. They were referred to the trial court for re-sentencing which was undertaken by Hon. Odenyo, SPM on 22/01/2019. The trial court received submissions and a Pre-Sentence Report and eventually sentenced each of the Appellants to 20 years’ imprisonment from the said 22/01/2019.
3. The Appellants were aggrieved by the sentences and appealed against the sentences claiming that the sentences were very harsh and did not take into account the period from 13/10/2010 where the Appellants have been on death row. They prayed that the sentences be reviewed accordingly. Mr. Kimanthi, Senior Principal Prosecution Counsel conceded that indeed the period from the time the Appellants were convicted ought to have been taken into account in the re-sentencing.
4. The Court in the case of Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.
5. I have considered all the issues in this matter and noted that the sentencing court took into account all the relevant issues including calling for a Pre-Sentence Report. I however find that the court, with tremendous respect, erred in not taking into account the period the Appellants were held on death row. To that end, the appeal succeeds and the order that the sentences of 20 years’ imprisonment shall start running from 22/01/2019 is hereby set-aside. It is hereby ordered that the sentences of 20 years’ imprisonment shall instead run from 13/10/2010 when the Appellants were first sentenced before the trial court.
6. Orders accordingly.
DELIVERED, DATEDandSIGNEDatMIGORI this 14th day of May 2019.
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of: -
Kennedy Otieno Dalmas and Dan Oluoch Otieno the Appellants in person.
Mr. Kimanthi Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.
Evelyne Nyauke – Court Assistant