Koech v Republic (Criminal Appeal E170 of 2022) [2026] KECA 1348 (KLR) (10 July 2026) (Judgment)

Koech v Republic (Criminal Appeal E170 of 2022) [2026] KECA 1348 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1348 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E170 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Patrick Kipchumba Koech Appellant and Republic Respondent (n appeal from the judgment of the High Court of Kenya at Eldoret (D. Kemei, J.) delivered on 14th November 2018 in HCCRA No. 1 of 2014) Judgment 1.This appeal is on sentence only. It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. [See Bernard Kimani Gacheru vs. Republic [2002] KECA 94 (KLR)] 2.The appellant, Patrick Kipchumba Koech, was charged with the offence of grievous harm contrary to section 234 of the Penal Code. The particulars of the offence were that on 30th September 2011, at Kapkayo Shopping Centre, Chemoibon Location, Keiyo South District, within Rift Valley, the appellant unlawfully did grievous harm to Richard Kibiwott Ng’etich. 3.The appellant was arraigned before the trial court on 3rd October 2011 to answer to the charges levelled against him in Eldoret Chief Magistrate’s Court, Criminal Case No. 3504 of 2011. He pleaded ‘not guilty’. After a full trial, the appellant was convicted as charged and sentenced to 30 years’ imprisonment. 4.Aggrieved by those findings, the appellant appealed in Eldoret High Court, Criminal Appeal No. 1 of 2014. Kemei, J., in his judgment delivered on 14th November 2019, dismissed his appeal on conviction and sentence. 5.It is those findings that have implored this appeal. The appellant filed his notice of appeal dated 23rd November 2018. He also filed his undated memorandum and grounds of appeal that raised 5 grounds disputing the findings of the High Court. We have taken the liberty to summarize those grounds as follows: that the prosecution failed to prove the offence of grievous harm to the required standard of proof; that the conviction was unsafe as the prosecution’s evidence was insufficient, circumstantial and unreliable; and that his alibi defence was ignored. For those reasons, the appellant prayed that his appeal be allowed by quashing the conviction and setting aside the sentence so that he is set at liberty. 6.The appeal was heard on 29th April 2026. The appellant, present and representing himself, stated that he did not file written submissions and wished to acquiesce his right to do so. He thus argued the appeal orally. The appellant informed the Court that he wished to abandon his appeal on conviction. On sentence, he beseeched this Court to reconsider his sentence as the two courts below failed to consider the period he had spent in custody when imposing the sentence. 7.The respondent was represented by Principal Prosecution Counsel, Mr. Okaka. He relied on his written submissions and list and bundle of authorities, both dated 7th April 2026, to submit that the appeal was without merit and was for dismissal. He conceded that the trial court ought to have considered the period the appellant had spent in custody. Finally, in his view, the sentence was lawful as the appellant was not remorseful. Furthermore, the aggravating circumstances, that is to say, that the injuries inflicted on the complainant were serious in their nature, justified the sentence meted out to the appellant. 8.We have considered the parties’ submissions, examined the record of appeal and analyzed the law. At the risk of belaboring, the appellant is appealing on the sentence only. We are alive to our duty as an appellate Court on a second appeal in the circumstances. 9.The appellant was sentenced to 30 years’ imprisonment. During mitigation, the prosecution informed the trial court that the appellant was a first offender. On his part, the appellant informed the trial court that he was married with two children and had been in custody for 27 months. He prayed for a non-custodial sentence. In passing the sentence, the court noted that the appellant was not remorseful. Furthermore, he had inflicted serious injuries on the complainant that had the effect of paralyzing his right hand side. 10.On its part, the High Court found that the complainant’s evidence, as corroborated by the doctor, regarding his injuries, was that the complainant sustained a depressed skull fracture and was bleeding on the left side of the head. Additionally, the complainant’s hand was paralyzed and had pain on the right lower limb. The court further considered that the appellant attacked the complainant without any justification or evidence of provocation. It is those reasons that led the High Court to uphold the sentence. 11.This Court has considered the findings of the two courts below as well as the concession by the respondent. From the record, the appellant was arraigned in court on 3rd November 2011. He was sentenced on 23rd December 2013. During this period, the appellant was in remand. 12.Section 333 (2) of the Criminal Procedure Code obliges a court passing a sentence to take into account the period a convicted person spent in custody. In this case, it is apparent that the trial court did not take that into account. Furthermore, the first appellate court failed to take this into consideration when reevaluating the evidence on sentence. The respondent has also conceded that the appellant ought to have benefitted from that provision. 13.We note that the appellant was not remorseful for committing the offence he was charged with. Furthermore, the injuries inflicted on the complainant were grievous in their nature. We therefore see no reason to interfere with the sentence meted out. Accordingly, the appeal is devoid merit and it is hereby dismissed. However, we direct the prison authorities to compute the appellant’s sentence from the date he was arraigned in court, that is to say, 3rd November 2011. It is so ordered.DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb.…………...…...............………..JUDGE OF APPEALW. KORIR………………..…..............JUDGE OF APPEALL. M. NDOLO…………..............………..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR