[2022] KEHC 16225 (KLR)
The High Court found that the trial court erred by failing to consider the period the appellant had spent in pre-conviction custody as required by section 333(2) of the Criminal Procedure Code. This omission constituted a misdirection in principle, warranting appellate interference with the sentence. The court...
Source-derived case information.
- Citation
- [2022] KEHC 16225 (KLR)
- Parties
- Appellant: James Ndungu Kimani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 24 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- J Wakiaga
- Legal Topics
- Sentencing Principles, Robbery With Violence, Pre Conviction Detention, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ndungu Kimani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the appellant spent in pre-conviction custody when passing sentence.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The High Court found that the trial court erred by failing to consider the period the appellant had spent in pre-conviction custody as required by section 333(2) of the Criminal Procedure Code. This omission constituted a misdirection in principle, warranting appellate interference with the sentence. The court further noted that the prosecution had not filed a cross-appeal or given notice of intention to seek enhancement of the sentence, and thus could not seek a harsher sentence at this stage. Consequently, the High Court substituted the sentence with one of ten years' imprisonment to run from the date the appellant first appeared in court, March 13, 2018, thereby giving effect to the...
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The sentence of ten years' imprisonment is to run from March 13, 2018, the date the appellant first appeared in court.
Full Case Text
Judgment text and source record
24 paragraphs
Kimani v Republic (Criminal Appeal 24 of 2019) [2022] KEHC 16225 (KLR) (7 December 2022) (Judgment)
Neutral citation: [2022] KEHC 16225 (KLR)
Republic of Kenya
In the High Court at Murang'a
Criminal Appeal 24 of 2019
J Wakiaga, J
December 7, 2022
Between
James Ndungu Kimani
Appellant
and
Republic
Respondent
(Being an appeal from the original conviction and sentence in Kigumo SPM CR NO 313 of 2018 Hon.A MWANGI PM)
Judgment
1. The appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code, with an alternative charge of handling stolen goods contrary to section 322(1)(2) of the Penal Code.
2. He was tried convicted and sentenced to serve ten (10) years imprisonment and being dissatisfied with the said conviction and sentence, he filed this appeal and raised the following ground of appeal: a) the trial court failed to invoke section 333 of the CPC to take into account the period in custody.
3. When the appeal came up for hearing before me, the appellant submitted that he was only appealing against sentence and not conviction on the ground that the court did not take into account the pre conviction detention while passing the sentence herein and stated that he had been in custody since the year 2019.
4. On behalf of the state, it was contended that the sentence was very lenient and that to was not clear how the trial court arrived at the same and that the court should enhance the same.
5. In sentencing the appellant, the trial court stated that the circumstances of the offence were not so aggravated since the accused where not keen on harming the complainant.
6. It is also noted that the respondent did not file a cross appeal on sentence neither did they issue any notice and or warning to the appellant of the intention to enhance the sentence and therefore that right does not accrue to the same.
7. Sentence is at the discretion of the trial court which an appellant court can only interfere with if the same acted on wrong principle and having given the appellant an imprisonment term of ten years, the same was entitled to the right under section 333(2) of theCPC and having not accorded the appellant the said right, the sentence herein was passed based on wrong principles and is therefore amenable to be interfered with by the court of appeal.
8. I therefore find merit on the appeal herein on sentence, which I hereby substitute with a sentence of ten years with effect from March 13, 2018 when the appellant first appeared in court and it is ordered.
DATED SIGNED AND DELIVERED AT MURANGA THIS 7th DAY OF DECEMBER, 2022. J. WAKIAGAJUDGEIn the presence ofCourt Assistant C. MutahiMs Otieno ProsecutorAppellant in person