[2023] KEHC 439 (KLR)
The court found that the sentence of 20 years imprisonment for defilement was not excessive and was appropriate given the seriousness of the offence and the circumstances. The appellant's mitigation, remorse, and rehabilitation were considered, but did not warrant a reduction or substitution of the custodial...
Source-derived case information.
- Citation
- [2023] KEHC 439 (KLR)
- Parties
- Appellant: Nicholas Kipkosgei Kirwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 142 of 2018
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal dismissed save for crediting remand period under section 333(2) of the Criminal Procedure Code.
- Judges
- RN Nyakundi
- Legal Topics
- Defilement, Sentencing Policy, Mitigation, Remand Credit, Sexual Offences, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Kipkosgei Kirwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 20 years imprisonment for defilement was excessively harsh and unjust in the circumstances.
- 2 Whether the appellant's mitigation and status as a first offender warranted a lesser or non-custodial sentence.
- 3 Whether the period spent in remand custody should be credited under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the sentence of 20 years imprisonment for defilement was not excessive and was appropriate given the seriousness of the offence and the circumstances. The appellant's mitigation, remorse, and rehabilitation were considered, but did not warrant a reduction or substitution of the custodial sentence. However, the court held that the period spent in remand custody must be credited in accordance with section 333(2) of the Criminal Procedure Code. The only modification was that the sentence would be deemed to have commenced from the date the appellant was first remanded, but otherwise, the appeal was dismissed in its entirety.
Court Disposition
Appeal dismissed save for crediting remand period under section 333(2) of the Criminal Procedure Code.
Orders
- The appeal against sentence is dismissed.
- The committal warrant shall be amended to reflect that the sentence commences from 5th April 2017, giving credit for time spent in remand custody.
Full Case Text
Judgment text and source record
21 paragraphs
Kirwa v Republic (Criminal Appeal 142 of 2018) [2023] KEHC 439 (KLR) (27 January 2023) (Judgment)
Neutral citation: [2023] KEHC 439 (KLR)
Republic of Kenya
In the High Court at Eldoret
Criminal Appeal 142 of 2018
RN Nyakundi, J
January 27, 2023
Between
Nicholas Kipkosgei Kirwa
Appellant
and
Republic
Respondent
(Being an appeal against sentence from the judgment delivered on 17th September 2018 by Hon D. Alego in KAPSABET CMCC 857 OF 2017)
Judgment
1. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8(3) of the sexual offences act. He was tried, found guilty and convicted to serve 20 years imprisonment by Hon D.A Alego on 17th September 2018.
2. Aggrieved with the sentence, the appellant filed the present appeal based on the following grounds;1. That, the imposed sentence is excessively harsh and unjust considering that, the appellant was first offender, he was a young man who needed a lesser sentence.2. That, the imposed sentence is excessive and does not go well with the provisions of the policy sentencing directives 2015 under paragraph 4:1. 3.That, the appellant is remorseful and regrets his actions. I le is repentant.4. That, the appellant worked tirelessly to support self and has potential if given another chance in life.5. That, the court considers my mitigation grounds and award a lesser sentence or substitute the remaining sentence with a non-custodial sentence or the court be pleased to order that the appellant serves in the Community Service Order.6. That, the court considers the provisions of section 333(2) of the Criminal Procedure Code to be factored in his sentence.
3. The appellants case is that he condemns his actions and is remorseful. He has embraced fully the rehabilitative work offered in prison and is fully engaged in tailoring. With the knowledge experience and information acquired in the above area, he believes that he is fully rehabilitated and ready to be productive in building the nation. He sought to have his sentence reduced to a custodial one or a community service order.
4. Upon considering the mitigation of the appellant, the aggravating circumstances surrounding the offence, the gravity of the offence and the sentence imposed by the trial court, the court is not satisfied that the appellant’s sentence warrants a review. The sentence is not in any way excessive and was commensurate to the offence committed. The only rider is the sentence to be reviewed in consonant with section 333(2) of the Criminal Procedure Code which gives credit to the period spent in remand custody. As a consequence the committal warrant be amended for the period of imprisonment to commence with effect from the 5th day of April 2017.
5. Save for that remedial action on sentence entire appeal be and is hereby dismissed.
DATED, SIGNED AND DELIVERED AT ELDORET THIS 27TH DAY OF JANUARY 2023. .................................R. NYAKUNDIJUDGE