[2006] KEHC 1830 (KLR)
The court found that the trial magistrate erred in law by imposing different sentences on the appellant and his co-accused without providing any justification or reasons for the disparity. The appellant, a first offender, received a significantly harsher sentence (five years imprisonment and five years police...
Source-derived case information.
- Citation
- [2006] KEHC 1830 (KLR)
- Parties
- Appellant: Timothy Mugodo Kisang; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 36 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- AI Tullu
- Legal Topics
- Sentencing Disparity, Robbery Offences, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Mugodo Kisang
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in law by imposing different sentences on co-accused persons convicted of the same offence without justification.
- 2 Whether the sentence imposed on the appellant was excessive and unjustified compared to the co-accused.
Ratio Decidendi
The court found that the trial magistrate erred in law by imposing different sentences on the appellant and his co-accused without providing any justification or reasons for the disparity. The appellant, a first offender, received a significantly harsher sentence (five years imprisonment and five years police supervision) compared to his co-accused, who were sentenced to probation for three years. The absence of any aggravating factors or bad record for the appellant made the disparity unjustifiable. Applying the principle from Marando v Republic, the court held that such sentencing disparity is wrong in principle unless justified by good reason. Consequently, the court allowed the appeal...
Court Disposition
appeal_allowed
Orders
- The appeal against sentence is allowed.
- The sentence of five years imprisonment and five years police supervision is set aside.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Criminal Appeal 36 of 2005
(An Appeal from the judgment of S.M. Shitubi Senior Resident Magistrate Kapsabet
SRM.CR.NO.1390 OF 2000)
TIMOTHY MUGODO KISANG:............................................................................................. APPLICANT
VERSUS
REPUBLIC:........................................................................................................................ RESPONDENT
JUDGMENT
The Appellant was charged together with two others on 16th May,2001 with the offence of robbery contrary to section 296(1) of the Penal Code. Upon the conclusion of the trial, the Trial Magistrate convicted the three accused and sentenced them as follows:-
1st Accused – Probation for 3 years
2nd Accused – Probation for 3 years
3rd Accused – 5 years imprisonment and thereafter 5 years police supervision.
The sentence was on 20th September, 2004. The Appellant then filed this appeal against conviction and sentence.
At the hearing, the Respondent placed it on record at the outset that the appeal was not opposed as far as sentencewas concerned. The Respondent however, supported conviction. Due to this concession Counsel for the Appellant in effect accepted the concession and submissions were made only in respect of the appeal against sentence. It was common ground that the Learned Magistrate did not give any specific reasons for the disparity of sentencing. No justification was given for the different sentences.
In MARANDO –V- THE REPUBLIC 1980 KLR 114, The Court of Appeal held:-
“ The appeal against sentence causes us much concern. When two ormore people are convicted of the same offence, it is wrong in principle toimpose different sentences except for good reason. For instance, one manmay have a bad record, but that is not the case here. The appellant is afirst offender. The Judge gave no reason for sentencing the appellant tofour years, and his co-accused to one day’s imprisonment....”
In the light of this legal principle, I agree with counsel that the Learned Magistrate erred in law when meting out different sentences, without expressing the reasons for the disparity or justification thereof.
The Appellant has been in custody since 20th September,2004 serving sentence. This is a period of over one year and eight months (1 year, 8 months). It is certainly a heavier punishment than probation for three years, which the Co-accused are still serving.
In the circumstances, I do hereby allow the appeal, set aside the sentence of 5 years imprisonment and 5 years police supervision and substitute it with probation for 3 years. In view of having served part of the sentence given by the Trial Court (to the extent of 1 year and 8 months), I hereby order that the sentence of probation for 3 years be and is hereby suspended.
The Appellant shall be set to liberty and released forthwith unless otherwise lawfully held.
DATED AND DELIVERED ON THIS 6TH DAY OF JULY,2006 AT ELDORET
M.K.IBRAHIM
JUDGE
2:30PM:
Ibrahim J
C/C - Chelang’a
Mr. Kipkosgei for the Appellant
Ms. Oundo for the Respondent
Judgment in their presence.
M.K. IBRAHIM
JUDGE