[2010] KECA 350 (KLR)
The Court of Appeal held that sentencing is within the discretion of the trial court and will only be interfered with on appeal if it is shown that the trial court acted on wrong principles or the sentence is manifestly excessive. In this case, the trial judge considered all relevant factors, including the...
Source-derived case information.
- Citation
- [2010] KECA 350 (KLR)
- Parties
- Appellant: Kilonzo Kithunga; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 186 of 2009
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence After Conviction for Manslaughter
- Outcome
- appeal dismissed
- Judges
- ARM Visram
- Legal Topics
- Manslaughter, Sentencing Discretion, Appeal on Sentence, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kilonzo Kithunga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence After Conviction for Manslaughter
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for manslaughter was manifestly excessive.
- 2 Whether the trial court erred in considering the probation officer's adverse report in sentencing.
Ratio Decidendi
The Court of Appeal held that sentencing is within the discretion of the trial court and will only be interfered with on appeal if it is shown that the trial court acted on wrong principles or the sentence is manifestly excessive. In this case, the trial judge considered all relevant factors, including the appellant's violent history as documented in the probation officer's report, and the circumstances of the offence, namely that the appellant killed his own son over a trivial matter. The appellate court found no error in the exercise of sentencing discretion and concluded that the sentence imposed was not excessive in the circumstances. The appeal was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CRIMINAL APPEAL NO. 186 OF 2009
BETWEEN
KILONZO KITHUNGA……………………..…………………………. APPELLANT
AND
REPUBLIC ……………………………..........……………………. RESPONDENT
(Being an appeal from a conviction and sentence of the High
Court of Kenya at Machakos (Lenaola J.) dated 10th
December 2008
in
H.C.CR.C NO. 96 OF 2008
******************
JUDGMENT OF THE COURT
The appellant was convicted of the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code, having initially been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Before he was sentenced, the trial Judge (Lenaola J.), requested for and was given a probation officer’s report on the appellant which was adverse to him. In the report the probation officer noted that the appellant is known to have a violent temperament, had threatened family members with death, and had on several occasions attempted to shoot one of his sons known as Nzomo, with an arrow.
The trial Judge upon reading the probation officer’s report and his recommendation that the appellant’s was not a fit case for probation, decided to sentence him to an imprisonment term of 10 years.
In his appeal he challenges the sentence and complains that it is too severe. He pleaded with us to consider reducing it on the grounds that he is an old man, and that he accidentally killed Peter Mwalima Kilonzo, who was his son.
We have considered the appellant’s appeal. Sentence is a matter for the discretion of the court and as an appellate court, we can only interfere with it if satisfied that the trial court failed to take into account a relevant factor or took into account an irrelevant factor or that when all circumstances are taken into account, the sentence is manifestly excessive. We are not satisfied that the trial Judge erred in any way. The appellant killed his own son, merely for the simple reason that he cut his trees. It is also clear that the trial Judge took into account the appellant’s past conduct which he gathered from the probation officer’s report.
In the circumstances, we do not consider there is any basis for interfering with the sentence imposed on the appellant. Accordingly we dismiss his appeal. Order accordingly.
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
ANALSHIR VISRAM
…………………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR