[2013] KEHC 214 (KLR)
The High Court found that although the offence of robbery is serious and the maximum sentence is 14 years, the appellant was a first offender, pleaded guilty, and was remorseful. The trial magistrate considered mitigation but still imposed a sentence of seven years. The appellate court held that, in the...
Source-derived case information.
- Citation
- [2013] KEHC 214 (KLR)
- Parties
- Appellant: Nixon Cheruiyot; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 34 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Legal Topics
- Sentencing Principles, Plea of Guilty, First Offender, Mitigation, Robbery Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nixon Cheruiyot
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for robbery was harsh and excessive for a first offender who pleaded guilty.
- 2 Whether the trial magistrate properly considered the appellant's mitigation and status as a first offender.
Ratio Decidendi
The High Court found that although the offence of robbery is serious and the maximum sentence is 14 years, the appellant was a first offender, pleaded guilty, and was remorseful. The trial magistrate considered mitigation but still imposed a sentence of seven years. The appellate court held that, in the circumstances, a sentence of seven years was excessive for a first offender who pleaded guilty. The court exercised its discretion to interfere with the sentence, setting aside the seven-year term and substituting it with a five-year sentence, to run from the date of the original sentence.
Court Disposition
sentence varied
Orders
- The sentence of seven years imprisonment is set aside and substituted with a sentence of five years imprisonment.
- The sentence shall run from the date of sentence by the trial court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CRIMINAL APPEAL NO. 34 OF 2012
NIXON CHERUIYOT..............................................APPELLANT
VERSUS
REPUBLIC..........................................................RESPONDENT
(Being an appeal from the conviction and sentence made by the learned Senior Resident magistrate at Sotik court (Hon. M Okuche) in Sotik Senior Resident Magistrate's court criminal case No.1500 of 2012 on 15/05/2012)
JUDGMENT
NIXON CHERUIYOT, the appellant herein was convicted on his own plea of guilty for the offence of robbery contrary to Section 296 (1) of the Penal Code. The particulars of the offence, are that on 13/05/2012, at Cheboin Location in Bureti District within the Rift Valley Province robbed Geoffrey Kiprono Ng'eno of Kshs.20,450 and at the time of the robbery used actual violence to the said Geoffrey Kiprono Ng'eno. The appellant was thereafter sentenced to seven (7) years imprisonment. Being dissatisfied, the appellant filed this appeal in which he put forward the following grounds in his memorandum of appeal through the firm of Kipkorir Tele & Kitur Advocates:
The trial Magistrate erred in law and in fact by allowing the trial of the accused in a language he did not understand.
The appellant's constitutional rights were violated at the time of his arrest, and after his arrest by being subjected to mob injustice.
The trial Magistrate erred in law and in fact by not allowing the accused to choose, and be represented by, and Advocate or informing him of his right.
The trial Magistrate erred in law and in fact by not taking into consideration the appellant's instant plea of guilty, his health status and mitigation which ought to have tilted the decision for proper management.
The trial Magistrate erred in law and in fact by not considering the age factor of the appellant.
Without prejudice to the foregoing, the sentence passed against the appellant was harsh and excessive especially being a first offender.
When the appeal came up for hearing, Mr. Mutai learned Senior Principal Prosecuting Counsel urged this court to dismiss the appeal on the basis that the sentence meted out is neither harsh nor excessive. The appellant had initially sought to challenge both the conviction and sentence. But he abandoned the appeal against the conviction when he appeared for hearing. Therefore, the question before me is whether the sentence of seven (7) years imprisonment is harsh and excessive? The record shows that the appellant was sentenced to seven years (7) imprisonment. Before pronouncing the sentence, the record shows the trial Magistrate considered appellant's Mitigation but noted that the offence is serious. The appellant is said to be a first offender. The maximum sentence prescribed by law for such an offence is 14 years. I think a sentence of seven years (7) for a first offender who pleaded guilty and who is remorseful is abit high. I am minded in the circumstances of this appeal to interfere with the order on sentence. Consequently, I set aside the sentence of seven years and substitute it with a sentence of five years. The sentence to run from the date of sentence by the trial court.
Dated, Signed and delivered this 22nd day of November, 2013
J.K.SERGON
JUDGE
In open court in the presence of:
Appellant in person
In the absence of Director of Public Prosecution but with Notice
Mr. Korir- Court clerk