[2022] KEHC 13803 (KLR)

Owino v Republic (Criminal Appeal E005 of 2022) [2022] KEHC 13803 (KLR) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13803 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E005 of 2022

RE Aburili, J

October 14, 2022

Between

Brian Otieno Owino

Appellant

and

Republic

Respondent

(An Appeal from Judgment, Conviction and sentence delivered on 12. 12. 2021 in Chief Magistrate’s court at Siaya in Criminal Case No. 201 of 2020 by Hon. M.O. Wambani, Chief Magistrate)

Judgment

1. The appellant herein is Brian Otieno Owino. He was charged, convicted and sentenced to serve thirty years imprisonment for the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. This was after a full trial. Sentence was passed on 8/2/2022.

2. Aggrieved by the said conviction and sentence, the appellant filed this appeal on 15/2/2022 stating as follows:1. I pleaded not guilty to the charge.2. I am appealing against sentence only.3. I am only 22 years old and have a young family.4. I have attacked by the deceased when I was from the Market at around 8. 00 pm.5. Incarceration of 30 years imprisonment will ruin my life and my child completely.6. The sentence awarded by the trial court is excessive in the circumstances.7. I acted in self defence when I committed the offence.8. My mitigation was not considered by the trial court.

3. The appellant prayed that his appeal against sentence be allowed and the sentence imposed on him be quashed and sentence be reduced.

4. As the appeal is not against conviction, on account that the aspect of alleged self defence and an attack as alleged, by the deceased on the appellant was the reason he was charged with manslaughter, this court proceeds to determine the question of whether the sentence imposed on the appellant was excessive in the circumstances and whether the trial court considered the appellant’s mitigation before sentencing him.

5. The Respondent through the Office of the Director of Public Prosecutions (ODPP) Siaya opposed the appeal against sentence. Counsel, Mr. Kakoi submitted that the sentence imposed was proper although there was some provocation.

6. That however, the accused used excessive force in the circumstances by stabbing the deceased four times. That the victim was aged only 18 years. Asked by the court, the appellant stated that he was 18 years.

7. Should this court therefore interfere with the sentence imposed by the trial court, sentencing being a matter of judicial discretion?

8. In Mokela Vs the State (135/11[2011 ZASCA 166, the Supreme Court of South Africa stated as follows on sentencing:“It is well established that sentencing remains preeminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court.”

9. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be observed.

10. In Ogolla S/O Owuor Vs[1954] EACA 270, the then Court of Appeal for Eastern Africa held that:“The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors.”

11. In Shadrack Kipkoech Kogo Vs RepublicEld CRA 253/2003, the Court of Appeal stated that:“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere, it must be shown that in passing the sentence, the sentencing court look into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered with.”

12. What the above decisions speak to is that an appellate court should be slow to interfere with the sentence passed by a trial court and will only interfere it if it is established that the sentence was illegal or that in sentencing, the trial court failed to take into account relevant factors or took into account irrelevant ones or that it applied the wrong legal principles. In addition, the appellate court can interfere with sentence if it finds that the sentence was harsh or manifestly excessive in the circumstances of the case.

13. In Benson Ochieng & Another Vs Republic[2018] eKLR cited by this court in Benjamin Ochieng Owuor v Republic [2020] eKLR the Court restated that:“Re-phrasing the Sentencing Guidelines, there are four sets of factors a Court looks at in determining the appropriate custodial sentence after determining the correct entry point (which, as stated above, I have determined to be fifteen years imprisonment). These are the following:a.Circumstances Surrounding the Commission of the Offence: The factors here include:i.Was the Offender armed" The more dangerous the weapon, the higher the culpability and hence the higher the sentence.ii.Was the offender armed with a gun"iii.Was the gun an assault weapon such as AK47"iv.Did the offender use excessive, flagrant or gratuitous force"v.Was the offender part of an organized gang"vi.Were there multiple victims"vii.Did the offender repeatedly assault or attack the same victim"b.Circumstances Surrounding the Offender: The factors here include the following:i.The criminal history of the offender: being a first offender is a mitigating factor;ii.The remorse of the Applicant as expressed at the time of conviction;iii.The remorse of the Applicant presently;iv.Demonstrable evidence that the Applicant has reformed while in prison;v.Demonstrable capacity for rehabilitation;vi.Potential for re-integration with the community;vii.The personal situation of the Offender including the Applicant’s family situation; health; disability; or mental illness or impaired function of the mind.c.Circumstances Surrounding the Victim: The factors to be considered here include:i.The impact of the offence on the victims (if known or knowable);ii.Whether the victim got injured, and if so the extent of the injury;iii.Whether there were serious psychological effects on the victim;iv.The views of the victim(s) regarding the appropriate sentence;v.Whether the victim was a member of a vulnerable group such as children; women; Persons with disabilities; or the elderly;vi.Whether the victim was targeted because of the special public service they offer or their position in the public service; andvii.Whether there been commitment on the part of the offender (Applicant) to repair the harm as evidenced through reconciliation, restitution or genuine attempts to reach out to the victims of the crime.”

14. In this case, I have considered the circumstances in which the offences were committed and the sentences meted. In the instant appeal, the appellant denied committing the offence. The Prosecution availed witnesses who testified on the circumstances under which the deceased Alphonse Ochieng Odhiambo was unlawfully killed. The court was persuaded by that evidence to be watertight and proved the elements of Manslaughter, beyond reasonable doubts and convicted the appellant.

15. The deceased was stabbed four times. One stab was on the parietal side of the head 10cm long, 1 on the left hand 8cm, once laceration about 5cm on the anterior neck, 1 on the chest at the heart and lungs – 5th rib. The left lung collapsed from the stab injury.

16. From the evidence on record, the appellant had subdued the victim who was on the ground as the appellant stabbed him severally. It is also noted that the appellant had on the previous day cut the deceased with a spade when the latter went to ask the appellant why he was backbiting him (deceased) to the effect that the deceased had been misappropriating funeral cash collections.

17. There was no evidence that the deceased was armed. Instead, it is the appellant and his friend who were armed with dangerous weapons when they attacked the deceased.

18. Before sentencing the appellant to serve 30 years imprisonment, the trial court called for the Victim Impact Statement which was not forthcoming despite adjourning the matter on three occasions.

19. The appellant was given the opportunity to mitigate which he did saying he was paying fees for his sister. He also stated that he had a family to take care of and prayed for a non-custodial sentence.

20. The appellant was a first offender, but he did not show any remorse for the unlawful killing of the deceased. He has not shown any such remorse here on appeal against sentence, to persuade this court that he feels really bad or regrets unlawfully killing the deceased.

21. The trial magistrate in her sentencing remarks took into account the fact that the appellant was a first offender, that he had mitigated, which mitigations were considered and the circumstances under which the offence was committed.

22. Upon conviction under Section 205 of the Penal Code for Manslaughter, the offender can be sentenced to serve up to life imprisonment.

23. In this case, the trial court sentenced the appellant to serve 30 years in prison. There is nothing unlawful about that sentence which is far much below the maximum sentence of life imprisonment.

24. The appropriate sentence to be meted out being entirely an exercise in the discretion of the trial court, this court finds that no irrelevant factor was taken into account by the trial court in sentencing the appellant and the appellant never told this court anything to the contrary.

25. The fact that had I been in the learned trial magistrate’s position, I might have imposed a slightly lesser sentence than that given by the trial court is not a basis on which this court can interfere with that sentence.

26. I find that the sentence imposed on the appellant by the trial court was lawful and took into account all the relevant factors and there is nothing I can do about it. I further find that sentence of 30 years imprisonment was merited in the circumstances of this case. (See James Gichuru Ndungu Vs Republic [2010] eKLR (Court of Appeal).

27. Having found that no ground has been laid upon which to interfere with the lawful lenient sentence imposed on the appellant by the trial court, the question is what other order can this court make?

28. Although the appellant did not ask this court to invoke the provisions of Section 333(2) of the Criminal Procedure Code to take into account the period that he was held in custody pending trial, I find it necessary to consider that provision.

29. The appellant was arrested on 10/5/2020 the same date of the offence. He took plea on 20/5/2020 which was ten days later and was granted bond of Kshs. Kshs. 300,000/= with one surety which he pleaded for reduction. The court reduced it to cash bail of Kshs. 100,000/= in the alternative.

30. The trial court record shows that an invoice for Kshs. 100,000/= cash bail was raised. However, there is no evidence that the appellant paid to court the said amount meaning he remained in custody until he was sentenced.

31. For the above reason, I hereby make the following final orders:1. The appeal against sentence is found to be devoid of merit and is hereby dismissed.2. The 30 years imprisonment imposed on the appellant shall be calculated from 10. 5.2022 the date he was arrested as per the charge sheet.

32. I so order.

33. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 14THDAY OF OCTOBER 2022R.E. ABURILIJUDGE