[2017] KEHC 8977 (KLR)
The court found that the appellant had already served a period in custody, including remand and post-conviction imprisonment, amounting to nearly seven years, which was equivalent to or exceeded the sentence imposed for simple robbery. The appellant's remorse and efforts at rehabilitation were also considered. In...
Source-derived case information.
- Citation
- [2017] KEHC 8977 (KLR)
- Parties
- Appellant: Nicholas Okelo Bungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 257 of 2011
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal allowed; sentence deemed served; appellant to be released unless otherwise lawfully held
- Legal Topics
- Robbery With Violence, Sentencing, Mitigation, Remission of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Okelo Bungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed on the appellant for the offence of simple robbery was excessive or warranted reduction.
- 2 Whether the period spent in remand custody prior to conviction should be considered in determining the sufficiency of the sentence.
Ratio Decidendi
The court found that the appellant had already served a period in custody, including remand and post-conviction imprisonment, amounting to nearly seven years, which was equivalent to or exceeded the sentence imposed for simple robbery. The appellant's remorse and efforts at rehabilitation were also considered. In light of these factors, the court held that the sentence already served was sufficient and that continued incarceration was not justified. The court therefore ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed; sentence deemed served; appellant to be released unless otherwise lawfully held
Orders
- The appellant is to be forthwith set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 257 OF 2011
NICHOLAS OKELO BUNGU................................................APPELLANT
VERSUS
REPUBLIC.........................................................................RESPONDENT
Being an appeal from the original conviction and sentence in the
ChiefMagistrate’s Courtat Makadara Cr. Case No. 4448 of 2010
deliveredby Hon. M. Muya, CM on 30th September, 2011).
JUDGEMENT
The Appellant was charged with the offence of robbery with violence contrary to Section 296(2) of the penal Code. It was alleged that on 20th July, 2010, at Botela Estate in Nairobi within Nairobi area Province jointly with another not before court, being armed with a dangerous weapon namely, pistol robbed Joyce Ndunge Jamin cash Kshs. 5,200/=, mobile phone Nokia 1130 valued at Kshs. 3,000/= and a handbag valued at Kshs. 150/= all total value Kshs. 8,350/= and at or immediately before or immediately after such robbery, threatened to use actual violence to the said Joyce Ndunge Jamin.
The Appellant was found guilty of the lesser offence of simple robbery contrary to section 296(1) of the Penal Code and convicted accordingly. He was sentenced to serve seven years imprisonment. He preferred this appeal on sentence alone. In his mitigation, he submitted that he was remorseful and had since learnt the value of being a law abiding citizen. In addition, he urged the court to release him so that he could be more useful to the society having trained as a mason in the prison. Learned State Counsel, Miss Kimiri did not oppose the appeal. She noted that before his conviction, the Appellant had been in remand for one year which is equivalent to the balance of the sentence.
I have accordingly considered the appeal and the respective submissions. The Appellant having been sentenced on 30th September, 2011 means that he has served five years and about ten months. Record shows that he took plea on 18th November, 2010 which adds up to a custodial period of close to seven years. The Appellant having pleaded for leniency, and being remorseful for what he did, it is only justiciable that the court sets him free. I accordingly hold that he has served sufficient sentence. I order that he be forthwith set free unless otherwise lawfully held.
Dated and Delivered at Nairobi this 15th Day of June, 2017.
G.W. NGENYE-MACHARIA
JUDGE
In the presence of;
1. Appellant present in person.
2. Ms. Kimiri for the Respondent.