[2022] KEHC 2513 (KLR)
The court found that the trial magistrate erred by failing to consider the period the appellant spent in pre-trial custody, which is a mandatory requirement under section 333(2) of the Criminal Procedure Code. The court acknowledged the appellant's mitigation but held that the seriousness of the offences, including...
Source-derived case information.
- Citation
- [2022] KEHC 2513 (KLR)
- Parties
- Appellant: Willy Wafula Wanjala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 8 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Legal Topics
- Robbery With Violence, Sentencing Principles, Pre Trial Custody Credit, Mitigation, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willy Wafula Wanjala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the appellant spent in pre-trial custody when sentencing.
- 2 Whether the sentence imposed was excessive in light of the appellant's mitigation and circumstances.
Ratio Decidendi
The court found that the trial magistrate erred by failing to consider the period the appellant spent in pre-trial custody, which is a mandatory requirement under section 333(2) of the Criminal Procedure Code. The court acknowledged the appellant's mitigation but held that the seriousness of the offences, including multiple victims and aggravating circumstances, justified a substantial custodial sentence. The court therefore reduced the sentence by the period already served in pre-trial and imprisonment custody (about six years), ordering that the appellant serve the remainder of the 30-year sentence (24 years) from the date of the judgment.
Court Disposition
appeal_partially_allowed
Orders
- The appeal succeeds to the extent that the period spent in pre-trial and imprisonment custody (about six years) is deducted from the original sentence.
- The appellant is to serve 24 years' imprisonment from the date of this judgment.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. 8 OF 2018
WILLY WAFULA WANJALA…………………………APPELLANT
VERSUS
REPUBLIC…………………………..……….………RESPONDENT
(Being an appeal from the judgement and sentence of Hon. D.O. Onyango, SPM, dated 15th January, 2018 in the SPM’s Court at Kimilili, in Criminal No.105 of 2016, Republic vs Willy Wafula Wanjala and David Wekesa Wamukota)
JUDGEMENT
In his amended petition of appeal which bears the court registry stamp of 29th July 2021, the appellant has appealed against his sentence of thirty (30) years imprisonment in respect of the offences of robbery with violence contrary to section 296 (2) of the Penal Code (Cap 63) Laws of Kenya.
In this court the appellant has raised nine grounds of appeal in his petition of appeal.
In ground 1 the appellant has faulted the trial magistrate for sentencing him without taking into account the period he had been in pre-trial custody. The appellant was arrested on 12th January 2016 and was taken to court on 20/1/2016.
The appellant was convicted on six counts of capital robbery and was sentenced to 30 years imprisonment on each count. The sentences were ordered to run concurrently.
In sentencing the appellant, the trial magistrate did not take into account the appellant had been in pre-custody that is from 12th January 2016 to the date he was sentenced; which was on 15/1/2018. This worked out to a period of about three years. I find that the failure to take into account that period was a violation of the mandatory requirement of section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya. I find that ground 1 succeeds and I hereby uphold it.
In grounds 2, the appellant has pleaded for mercy and leniency; which is then followed by ground 3 in which he has pleaded for leniency since he has a child of tender years.
In the rest of the grounds the appellant has in effect offered his mitigation which is as follows. He was a first offender. He is remorseful and repentant. He has now reformed.
Mr. Oyiembo for the Respondent supported the sentence and submitted that it was lenient.
I have considered the mitigation of the appellant and the opposition to it by counsel for the Respondent.
I find that the circumstances in which the offences were committed were serious. Six victims were robbed at that time and one of the victims was raped and the money taken from them was not recovered.
In the circumstances I find that the appellant is only entitled to the reduction of the sentence for the period he was in pre-trial sentence which is three years plus the imprisonment period from 15/1/2018 to date which works out to three years.
It therefore follows that the appellant has now been in both pre-trial custody and imprisonment custody for a period of about six (6) years.
The appellant’s appeal succeeds with the result that he will now serve 24 years which will sentence will begin to run from the date of this judgement.
Judgement dated, signed and delivered in open court at Nairobi through video conference this 25th day of January 2022.
J M BWONWONGA
JUDGE
In the presence of: -
Mr. Kinyua: Court Assistant
The appellant
Ms Mukangu for the Respondent