[2018] KEHC 3356 (KLR)
The appellate court found that the trial court had properly exercised its discretion in sentencing, having considered all relevant factors including the Pre-Sentence Report. The maximum sentence for threatening to kill is life imprisonment, and the sentence of seven years was not harsh or excessive given the...
Source-derived case information.
- Citation
- [2018] KEHC 3356 (KLR)
- Parties
- Appellant: Peter Odhiambo Misira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 22 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- AC Mrima
- Legal Topics
- Sentencing Principles, Threats to Kill, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Odhiambo Misira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for threatening to kill was harsh and excessive.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The appellate court found that the trial court had properly exercised its discretion in sentencing, having considered all relevant factors including the Pre-Sentence Report. The maximum sentence for threatening to kill is life imprisonment, and the sentence of seven years was not harsh or excessive given the circumstances, including the relationship between the appellant and the victim. Therefore, there was no basis for appellate interference with the sentence imposed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of seven years imprisonment is upheld.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MIGORI
CRIMINAL APPEAL NO. 22 OF 2017
PETER ODHIAMBO MISIRA............................APPELLANT
-VERSUS-
REPUBLIC..........................................................RESPONDENT
(Being an appeal on sentence arising from the conviction and sentence
by Hon. R. Odenyo,Senior Principal Magistrate in Migori
Chief Magistrate’sCriminal Cases No. 363 of 2015
delivered on 28/07/2017)
JUDGMENT
1. The Appellant herein,Peter Odhiambo Misira,was charged with the offence of threatening to kill contrary to Section 223(1) of the Penal Code. He denied the offence and a trial was held where he was found guilty as charged, convicted and sentenced to a term of seven years in prison after the court considered a Pre-Sentence Report whose contents were not favourable for a non-custodial sentence.
2. The Appellant appealed against the sentence claiming that the sentence was very harsh and prayed that he be considered for either an acquittal or a non-custodial sentence.
3. The Court in the case of Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.
4. I have considered all the issues in this matter and note that the sentencing court took into account all the relevant issues including calling for a Pre-Sentence Report. The maximum sentence on conviction for the offence of threatening to kill is life imprisonment. Looking at the circumstances of this case and the position of the victim who is a wife to the Appellant, the family members and the community at large, the sentence of 7 years in prison cannot be described as harsh in any manner whatsoever.
5. The appeal is hence unmeritorious and is hereby dismissed.
6. As I come to the end of this judgment I must apologize to the parties for the late delivery of this decision which was caused by this Court’s engagement in the hearing and determination of election petition appeals in the month of July and the August recess which followed soon thereafter.
7. Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 4th day of October, 2018.
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of: -
Peter Odhiambo Misira the Appellant in person.
Joseph Kimanthi Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.
Evelyne Nyauke– Court Assistant