[2022] KECA 1250 (KLR)
The Court of Appeal found that, given the conflicting evidence regarding the complainant's age, it was appropriate to consider the higher age of 16 in favour of the appellant. Additionally, the absence of aggravating circumstances and the mitigation presented justified a reduction of the sentence. The court held...
Source-derived case information.
- Citation
- [2022] KECA 1250 (KLR)
- Parties
- Appellant: Shem Nyangi Stephen; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 291 of 2019
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- Appeal on sentence allowed; sentence reduced to time served; appellant to be released forthwith unless otherwise lawfully held.
- Judges
- PO Kiage, F Tuiyott, JM Ngugi
- Legal Topics
- Sentencing Review, Mitigation of Sentence, Age of Complainant, Withdrawal of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shem Nyangi Stephen
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the sentence of 20 years imprisonment should be reduced in light of the complainant's age and absence of aggravating circumstances.
- 2 Whether the period already served by the appellant is sufficient punishment.
Ratio Decidendi
The Court of Appeal found that, given the conflicting evidence regarding the complainant's age, it was appropriate to consider the higher age of 16 in favour of the appellant. Additionally, the absence of aggravating circumstances and the mitigation presented justified a reduction of the sentence. The court held that the period already served by the appellant constituted sufficient punishment and therefore set aside the original 20-year sentence, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
Appeal on sentence allowed; sentence reduced to time served; appellant to be released forthwith unless otherwise lawfully held.
Orders
- The appeal on sentence is allowed.
- The 20-year term of imprisonment is set aside and substituted with a sentence of time already served.
Full Case Text
Judgment text and source record
21 paragraphs
Stephen v Republic (Criminal Appeal 291 of 2019) [2022] KECA 1250 (KLR) (10 November 2022) (Judgment)
Neutral citation: [2022] KECA 1250 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Appeal 291 of 2019
PO Kiage, F Tuiyott & JM Ngugi, JJA
November 10, 2022
Between
Shem Nyangi Stephen
Appellant
and
Republic
Respondent
(Being an Appeal from the Judgment of the High Court of Kenya at Kisii, (Majanja, J) dated 24th July, 2018 in HCCRA No 32 of 2017 Criminal Appeal 32 of 2017 )
Judgment
1. The appellant, who is in person, has indicated that he does not challenge conviction and therefore withdraws the appeal against conviction leaving this as an appeal against sentence only.
2. He was sentenced to 20 years imprisonment by the trial court which rendered its judgment, after listening to his mitigation, on November 18, 2016. The conviction and sentence were affirmed by the High Court in a judgment rendered on July 24, 2018.
3. Miss Odumba, learned counsel for the respondent does not oppose the withdrawal of the appeal against conviction, and on sentence, urges that given the circumstances of this case and in particular, the age of the complainant at the time, which, though appearing to be conflicting between 13 and 16, should really tilt in favour of the appellant as the age of 16, and considering further that there were no aggravating circumstances, then the sentence ought to be reviewed. She indeed adds that the period already served ought to be sufficient punishment for the appellant.
4. We agree, and in the result, order that the appeal on sentence be and is hereby allowed. We set aside the 20 year term of imprisonment and reduce it to the time already served. In the result, the appellant shall be set at liberty forthwith unless otherwise lawfully held.
5. The full reasons for our decision shall be rendered on March 17, 2023.
DATED AND DELIVERED AT KISII THIS 10TH DAY OF NOVEMBER, 2022. PO KIAGE………………………………JUDGE OF APPEALF TUIYOTT………………………………JUDGE OF APPEALJOEL NGUGI………………………………JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR