[2020] KEHC 778 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NO. 11 OF 2012

SAMMY NGAWASA LONG’ORI............................APPELLANT

-VERSUS-

REPUBLIC.......................................................RESPONDENT

(Being an Appeal from the sentence of the Honourable Senior Principal Magistrate, Hon. M. O. Wambani delivered on 19th of December 2011 in Criminal Case No. 1158 of 2002. )

JUDGMENT

1. The Appellant was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars being that on the 13th day of June 2002 at Corner Mbaya area along Rumuruti – Maralal road in Rumuruti in Laikipia District of the Rift Valley Province jointly with others not before Court while armed with dangerous weapons namely AK 47 assault rifles robbed Remi Doome Rink of her cash US Dollars 600, one binocular valued at Kshs. 24,000/=, a pair of reading glasses valued at Kshs. 16,000/= and a banana bag valued at Kshs.44,000/= all valued at Kshs. 93,600/= and at or immediately before or immediately after the time of such a robbry used personal violence to the said Remi Doome Rink.

2. The alternative charge was the offence of handling stolen goods contrary to Section 322(2) of the Penal Code. The particulars being that the appellant on the 22nd day of June 2002 in Maralal township in Samburu District of the Rift Valley Province, otherwise than in the course of stealing dishonestly handled a pair of binoculars, a pair of reading glasses, one travellers cheque S.No. 06G887812 and a leather banana bag knowing or having reason to believe them to have been stolen.

3. The appellant denied both the main and alternative charge. The prosecution called 6 witnesses to prove their case while the defence gave sworn testimony and never availed a witness. By a judgment delivered on 19th December 2011 the trial court found the appellant guilty of the main charge, convicted and sentenced him to death.

4. The appellant being aggrieved and dissatisfied by the judgment, acting in person filed a petition of appeal dated 25th January 2012 challenging both the conviction and the sentence. On 29th July 2020 when he appeared before Court he withdrawel his appeal against conviction and opted to proceed with the appeal against sentence.

APPELLANT’S SUBMISSION.

5. The appellant submitted that he was initially sentenced to serve death sentence which was later reduced to life imprisonment.

6. In mitigation, the appellant stated that he was remorselful and asked for forgiveness from the Court. He prayed to the Court to be linient to him and reduce his life sentence to a term he will be able to serve and thereafter go and see his family. He stated he has been in prison since 2002 and while in prison, he has reformed and trained as a teacher and obtained a certificate from Mount Kenya University in corroboration with UNESCO and has bee teaching in prison.

7. The appellant stated that he is a family man with a wife and 4 children and his family members are ready to accept him back in the society. He said he was arrested when he was 34 years old at the time of arrest and he is now 52 years old. He added that the victims were foreigners and would not be affected by his release.

RESPONDENT’S SUBMISSION.

8. State counsel Ms. Rita Rotich submitted to the Court should take into account the aggreviating circumstances during resentencing. She stated that the appellant has not made any effort to have restitution and the offence involved physical violence to the victim leading to trauma and injuries. She submitted that the sentenced passed was intended to deter the appellant in engaging in crimes.

ANALYSIS AND DETERMINATION

9. The appellant’s appeal is premised on the Supreme Court’s decision in the Francis Karioko Muruatetu & Another v Republic [2017] eKLR. Where the Supreme Court declared mandatory nature of sentence unconstitutional. The Supreme Court held that mandatory sentences deprive Courts of their legitimate jurisdiction to exercise discretion to individualize an appropriate sentence depending on circumstances of each case and mitigating circumstances raised.

10. The Court of Appeal in the case Thomas Mwambu Wenyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the Court held the following on sentencing:-

“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

11. I have considered the accused’s mitigation, I also note that he has taken advantage of imprisonment to learn skills which will enable him earn a living if released and also be of benefit to the community around him. I note that he has served 20 years in prison. He is now aged 52 years and he left behind a wife and 4 children at the time of arrest and in my view having trained as a teached, he is likely to be more of benefit to the society and his family being out of prison. I also take note of the circumstances of this case and appreciate the fact that there was need to impose deterrent sentence; however I am of the view that the 20 years the appellant has served should be sufficient in the circumstances.

12. FINAL ORDERS

1. Appeal on conviction marked as withdrawn

2. Appeal on sentence is allowed

3. Sentence is hereby reduced to sentence already served.

Judgment dated, read and delivered at Nakuru via zoom This 9th December, 2020

RACHEL NGETICH

JUDGE

In the Presence of:

Court Assistant – Jeniffer

State Counsel – Rita

Accused in person