[2022] KEHC 13463 (KLR)

Kiprotich v Republic (Criminal Appeal 12 of 2020) [2022] KEHC 13463 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13463 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 12 of 2020

RN Nyakundi, J

October 5, 2022

Between

Vincent Kiprotich

Appellant

and

Republic

Respondent

(An appeal against the original conviction and sentence from the judgment of Hon. J. Orwa (SPM) in Kapsabet Criminal Case No. 1848 of 2018 dated 24th December, 2019)

Judgment

1. The appellant together with an accomplice were charged with the offence of robbery with violence contrary to section 295(1) read together with section 296(2) of the Penal Code. The particulars of the charge being that on the May 10, 2018 at Kaiboi village in Kaiboi sublocation in Nandi County, they jointly robbed Calistas Kibet of his mobile phone and used actual violence after time of such robbery. He also faced an alternative charge of handling stolen property contrary to section 322 of the Penal Code.

2. The trial court upon hearing the case to its logical conclusion found the appellant guilty and sentenced him to 10 years imprisonment. Being dissatisfied with the decision of the court the appellant lodged the present appeal against the conviction.

Appellant’s Case 3. The appellant filed written submissions on March 20, 2021 and supplementary written submissions on October 1, 2021. Citing section 333 of the Criminal Procedure Code the appellant submitted that when a person is sentenced to imprisonment the sentence should commence from the date of arrest. He further relied on section 38 of the penal code to buttress his point. He submitted that it is his inherent right to benefit from this provision of the law.

4. The appellant cited article 50 of the Constitution of Kenya 2010 and submitted that the complainant was not adversely hurt by the incident. He stated that he is a reformed person and has learned a lot in prison. Citing Patrick Gilbert Cholmondeley v Republic (2009) eKLR he asked the court to grant him leniency.

5. He reiterated that he has been rehabilitated and has reformed. He produced a certificate in theological studies and asked the court to consider the same in granting him a non-custodial sentence. He maintained that he was a first offender and was influenced by alcohol at the time of the offence. He concluded by asking that the court admit him to probation.

Respondents’ Case 6. Learned counsel for the respondent, Mark K. Mugun filed submissions dated August 1, 2022. It was his case that The appellant seems to want the sentence to commence from the date of arrest. He further wishes for the sentence to be reviewed for being too harsh and that he had reformed during his time in incarceration. He submitted that a conviction under section 296(2) of the Penal Code attracts a death sentence where the offender was in the company of another such as this case. The appellant was sentenced to serve 10 years imprisonment which, in light of the mandatory nature of the sentence prescribed under section 296 (2), was too lenient. He prays that this Honourable Court does not disturb the sentence.

7. Upon considering the appeal, the submissions and the proceedings, I have identified the following issue for determination;

Determination 8. Section 296(2) of thePenal Code provides;(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

9. In the case ofS vs. Mchunu and AnotherAR24/11) [2012] ZAKZPHC 6, Kwa Zulu Natal High Court held that:“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. The purpose behind a sentence was set out in S v Scott-Crossley2008 (1) SACR 223 (SCA) at para 35:‘Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones.’The judgment continues:‘. . . [i]t is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.’

10. In addition the court in S vs. Toms 1990 (2) SA 802 (A) at 806(h)-807(b), the South African Court of Appeal (Corbett, CJ) held that:“the infliction of punishment is a matter for the discretion of the trial court. Mandatory sentences reduce the court’s normal sentencing function to the level of a rubberstamp. The imposition of mandatory sentences by the legislature has always been considered an undesirable intrusion upon the sentencing function of the court. A provision which reduces the court to a mere rubberstamp, is wholly repugnant.”

11. With regards to the existence of substantial and compelling circumstances the court notes that the appellant had no previous conviction, he expressed remorse, there was no use of a dangerous weapon during the commission of the offence, that the victim suffered minor injuries, he is capable of being rehabilitated and the complainant’s mobile phone was recovered in the course of investigation.

12. In light of the jurisprudential developments in Francis Karioko Muruatetu, (2017) eKLR and the sentencing policy judiciary guidelines I am persuaded to interfere with the sentence of Ten years imposed by the trial court on the basis of the substantial and compelling circumstances and have it substituted with a Four (4) years custodial sentence. This departure is justified further in giving credit to the appellant under section 333(2) of theCriminal Procedure Code.

13. In the premises, the appeal on conviction fails save for the variation on sentence as outlined above. Orders accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGE