1. The Appellant was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on the 17th day of September, 2021 at around 1900hrs at Cheptigit Sub-location with Uasin Gishu County, while being armed with a dangerous and offensive weapon namely a knife, stole one motor cycle registration number KMFL 586H make Bajaj boxer black in colour worth Kshs.136,000/= from Patrick Kiplagat Koech, and immediately before the time of such stealing, threatened to use actual violence against Patrick Kiplagat Koech.
2. The Appellant pleaded not guilty to the said charge and the prosecution called four (4) witnesses to support its case.
3. By a judgment dated 26/08/2022, the trial court reached a determination whereby the appellant was sentenced to 30 years’ imprisonment. Initially, the appellant being aggrieved by the said judgement had filed an Appeal against both the conviction and sentence. Subsequently by way of an Amended Appeal brought under Section 350(v) of the Criminal Procedure Code and filed on 13th January 2025, the appellant stated that he was now appealing against the sentence only. In the said amended appeal, the appellant cited the following grounds;
1) That the imposed sentence is excessively harsh and unjust considering that he was convicted as a first offender
2) That he is a family man whose life is greatly affected by the imprisonment
3) That while in prison he has taken full advantage of the rehabilitative programs offered as is evident in the attached documents together with the prison report
4) That the court considers the provisions of Section 333(2) of the CPC and the same be factored in his sentence.
4. The appeal was canvassed by way of written submissions. The appellant’s main grounds were that the sentence of 30 years imposed by the trial court was manifestly excessive and goes beyond the life expectancy as was held in the case of Ali Abdallah Mwanza v Republic [2018] eKLR and that as per the provisions of Article 50(2)(q), the court should review the sentence to a lesser and lighter term.
5. The Appellant filed his submissions on 13/01/2025 which were primarily with regard to the issue of sentence. Regarding sentence, the Appellant submitted that he appreciates the fact that, sentencing is a judicial task to be undertaken by the judicial officials only. However, in the matter before Court, the circumstances of the case where not too grievous, no one lost his life or injured thus a lesser sentence for instance probation or suspended sentence was most appropriate.
6. The Appellant relied on the the Court of Appeal case of Thomas Mwambu Wenyi Vs Republic (2017) eKLR, the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Maharashtra at paragraph 70-71 which he submitted that the court should be guided by. The Appellant further submitted that the Judiciary Sentencing Guidelines lists the Objectives of sentencing which include but are not limited to the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the assailant to inflict harm. The Appellant submits that in the present case, a knife was allegedly used to threaten the victim but there were no injuries inflicted thus a lesser sentence was called for. In view of the foregoing, the Appellant submitted that a non-custodial sentence was the most suitable sentence.
7. The Appellant submitted further that he strongly condemns the action and regrets all that happened, that he is remorseful and asks for forgiveness from God, the complainant and to everyone who was involved in this mis-deeds and assures the court that this offence will never reoccur again if he is reintegrated back to the society. He maintained that before conviction and sentencing, he was the sole breadwinner for his family and thus begs for another chance in life. He added that while in the correctional facility he fully embraced the rehabilitative work offered in prison and that he has acquired the requisite knowledge and skills in spiritual studies and leadership which is essential to live as righteous life while out of prison. According to the Appellant with the knowledge, experience and information acquired in the above areas, he strongly believes that he is fully rehabilitated and ready to be productive in building the nation. He then urged this court find that the time served is enough and sufficient.
8. He further relied on the case of Douglas Muthaura Ntobiri v Republic (2018) eKLR where the court held that;
“Good working prison should be able to reform convicts. There is no legal research which leads to the conclusion that capital offenders cannot be reformed.”
9. He also relied on the case of Daniel Gichimu& Another v Rep. [2018] eKLR page 74 where it was held that;
“In the instant appeal, we find that both appellants stated in their mitigation before the trial court that they were first offenders, a fact not disputed by the prosecution. We also take note of the fact that the infliction of violence on PWI was minimal and the item robbed from her was also recovered. In our view, a sentence of fifteen years’ imprisonment would suffice in the circumstances. We therefore find it prudent to interfere with the sentence affirmed by the first appellate court, set it aside and substitute it with one of fifteen years' imprisonment to run from the date of the arrest of the appellants. To that extent only does the appeal succeeds.
10. On the application of Section 333(2), the appellant relied on the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR at page 63 where it was held that;
“...By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced...“Taking into account" the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody......It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.
11. In conclusion, the Appellant urged the Court to consider the period spent in custody since 21/09/2020 the date by Section 333(2) of the Criminal Procedure Code and the principles in the above cited case.
The Respondent’s Submissions
12. Regarding the sentence meted out, Counsel submitted that is trite law that sentencing is a discretion of the trial court and being so it must be done judiciously and that guidance on the subject can be derived from the Court of Appeal decision in the case of Eldoret Criminal Appeal No.253 of 2003 Shadrack Kipkoech Kogo v R. where it was held that:
“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R (1989 KLR 306)”
13. Counsel also cited the same Court in the case of Bernard Kimani Gacheru v Republic [2002] eKLR where it stated that:
"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist."
14. Counsel then cited Section 296(2) of the Penal Code and submitted that the punishment for the offence of robbery with violence is the death penalty but in this case, the court sentenced the Appellant to 30 years’ imprisonment. Counsel submitted that in meting out the sentence, the trial court considered the Appellant's mitigations and the aggravating factors. Counsel maintained that the court was lenient in sentencing in sentencing him favourably notwithstanding the fact that the Appellant was charged with a capital offence.
15. In conclusion, Counsel urged that the prosecution availed overwhelming, credible and admissible evidence proving each of the elements of the offence. Counsel submitted that the prosecution successfully proved beyond reasonable doubt and the court, after careful consideration of the prosecution evidence, the defence and the Appellant's mitigation rightfully exercised its discretion and sentenced the Appellant accordingly.
Determination
16. The punishment for the offence of robbery is as provided under Section 296 of the Penal Code as follows;
(1)…….
(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
17. The circumstances und which a sentence imposed by a trial court can be set aside, substituted and/or varied were stated by The Court of Appeal in in the case of Bernard Kimani Gacheru v Republic [2002] eKLR to be as follows;
“It is now settled Law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.”
18. The sentence of death is the maximum penalty for the offence of robbery with violence. In this case, the trial Court in it is the discretion sentenced the Appellant herein to 30 years’ imprisonment after considering the aggravating factors of the offence and the mitigation by the appellant. Nothing has been shown that the trial court acted upon wrong principles or overlooked some material factors or considered irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle. In the circumstances, I am satisfied that as envisaged under Article 50(2)(p) of the Constitution, the applicant has already benefited from the lesser sentence with respect to the charge of robbery to a very great and considerable extent and a second bite of the cherry is not at all merited. It is my finding therefore that the sentence is not only lawful and legal but is also lenient and I see no justifiable reason to interfere with it. The same is accordingly upheld.
19. On the application under Section 333(2) of the Criminal Procedure Code the provisions are as hereunder reproduced;
“Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.”
20. The application of the provisions of this section in sentencing upon conviction is mandatory. A perusal of the Charge Sheet contained in the trial Court record reveals that the Appellant was arrested on 21/09/2021 and arraigned on 23/09/2021 when he took plea and was never granted cash bail or bond and he thus remained in custody. He was sentenced on 5/09/2022. In this regard, I find merit in this limb of the appellant’s Application and the same is allowed. I therefore direct that the aggregate period spent by the appellant in custody be factored into his sentence of 30 years’ imprisonment. Right of Appeal 14 days.
Read Dated and Signed at ITEN on 3rd April 2025
2. The Appellant pleaded not guilty to the said charge and the prosecution called four (4) witnesses to support its case.
3. By a judgment dated 26/08/2022, the trial court reached a determination whereby the appellant was sentenced to 30 years’ imprisonment. Initially, the appellant being aggrieved by the said judgement had filed an Appeal against both the conviction and sentence. Subsequently by way of an Amended Appeal brought under Section 350(v) of the Criminal Procedure Code and filed on 13th January 2025, the appellant stated that he was now appealing against the sentence only. In the said amended appeal, the appellant cited the following grounds;
1) That the imposed sentence is excessively harsh and unjust considering that he was convicted as a first offender
2) That he is a family man whose life is greatly affected by the imprisonment
3) That while in prison he has taken full advantage of the rehabilitative programs offered as is evident in the attached documents together with the prison report
4) That the court considers the provisions of Section 333(2) of the CPC and the same be factored in his sentence.
4. The appeal was canvassed by way of written submissions. The appellant’s main grounds were that the sentence of 30 years imposed by the trial court was manifestly excessive and goes beyond the life expectancy as was held in the case of Ali Abdallah Mwanza v Republic [2018] eKLR and that as per the provisions of Article 50(2)(q), the court should review the sentence to a lesser and lighter term.
5. The Appellant filed his submissions on 13/01/2025 which were primarily with regard to the issue of sentence. Regarding sentence, the Appellant submitted that he appreciates the fact that, sentencing is a judicial task to be undertaken by the judicial officials only. However, in the matter before Court, the circumstances of the case where not too grievous, no one lost his life or injured thus a lesser sentence for instance probation or suspended sentence was most appropriate.
6. The Appellant relied on the the Court of Appeal case of Thomas Mwambu Wenyi Vs Republic (2017) eKLR, the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Maharashtra at paragraph 70-71 which he submitted that the court should be guided by. The Appellant further submitted that the Judiciary Sentencing Guidelines lists the Objectives of sentencing which include but are not limited to the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the assailant to inflict harm. The Appellant submits that in the present case, a knife was allegedly used to threaten the victim but there were no injuries inflicted thus a lesser sentence was called for. In view of the foregoing, the Appellant submitted that a non-custodial sentence was the most suitable sentence.
7. The Appellant submitted further that he strongly condemns the action and regrets all that happened, that he is remorseful and asks for forgiveness from God, the complainant and to everyone who was involved in this mis-deeds and assures the court that this offence will never reoccur again if he is reintegrated back to the society. He maintained that before conviction and sentencing, he was the sole breadwinner for his family and thus begs for another chance in life. He added that while in the correctional facility he fully embraced the rehabilitative work offered in prison and that he has acquired the requisite knowledge and skills in spiritual studies and leadership which is essential to live as righteous life while out of prison. According to the Appellant with the knowledge, experience and information acquired in the above areas, he strongly believes that he is fully rehabilitated and ready to be productive in building the nation. He then urged this court find that the time served is enough and sufficient.
8. He further relied on the case of Douglas Muthaura Ntobiri v Republic (2018) eKLR where the court held that;
“Good working prison should be able to reform convicts. There is no legal research which leads to the conclusion that capital offenders cannot be reformed.”
9. He also relied on the case of Daniel Gichimu& Another v Rep. [2018] eKLR page 74 where it was held that;
“In the instant appeal, we find that both appellants stated in their mitigation before the trial court that they were first offenders, a fact not disputed by the prosecution. We also take note of the fact that the infliction of violence on PWI was minimal and the item robbed from her was also recovered. In our view, a sentence of fifteen years’ imprisonment would suffice in the circumstances. We therefore find it prudent to interfere with the sentence affirmed by the first appellate court, set it aside and substitute it with one of fifteen years' imprisonment to run from the date of the arrest of the appellants. To that extent only does the appeal succeeds.
10. On the application of Section 333(2), the appellant relied on the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR at page 63 where it was held that;
“...By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced...“Taking into account" the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody......It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.
11. In conclusion, the Appellant urged the Court to consider the period spent in custody since 21/09/2020 the date by Section 333(2) of the Criminal Procedure Code and the principles in the above cited case.
The Respondent’s Submissions
12. Regarding the sentence meted out, Counsel submitted that is trite law that sentencing is a discretion of the trial court and being so it must be done judiciously and that guidance on the subject can be derived from the Court of Appeal decision in the case of Eldoret Criminal Appeal No.253 of 2003 Shadrack Kipkoech Kogo v R. where it was held that:
“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R (1989 KLR 306)”
13. Counsel also cited the same Court in the case of Bernard Kimani Gacheru v Republic [2002] eKLR where it stated that:
"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist."
14. Counsel then cited Section 296(2) of the Penal Code and submitted that the punishment for the offence of robbery with violence is the death penalty but in this case, the court sentenced the Appellant to 30 years’ imprisonment. Counsel submitted that in meting out the sentence, the trial court considered the Appellant's mitigations and the aggravating factors. Counsel maintained that the court was lenient in sentencing in sentencing him favourably notwithstanding the fact that the Appellant was charged with a capital offence.
15. In conclusion, Counsel urged that the prosecution availed overwhelming, credible and admissible evidence proving each of the elements of the offence. Counsel submitted that the prosecution successfully proved beyond reasonable doubt and the court, after careful consideration of the prosecution evidence, the defence and the Appellant's mitigation rightfully exercised its discretion and sentenced the Appellant accordingly.
Determination
16. The punishment for the offence of robbery is as provided under Section 296 of the Penal Code as follows;
(1)…….
(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
17. The circumstances und which a sentence imposed by a trial court can be set aside, substituted and/or varied were stated by The Court of Appeal in in the case of Bernard Kimani Gacheru v Republic [2002] eKLR to be as follows;
“It is now settled Law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.”
18. The sentence of death is the maximum penalty for the offence of robbery with violence. In this case, the trial Court in it is the discretion sentenced the Appellant herein to 30 years’ imprisonment after considering the aggravating factors of the offence and the mitigation by the appellant. Nothing has been shown that the trial court acted upon wrong principles or overlooked some material factors or considered irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle. In the circumstances, I am satisfied that as envisaged under Article 50(2)(p) of the Constitution, the applicant has already benefited from the lesser sentence with respect to the charge of robbery to a very great and considerable extent and a second bite of the cherry is not at all merited. It is my finding therefore that the sentence is not only lawful and legal but is also lenient and I see no justifiable reason to interfere with it. The same is accordingly upheld.
19. On the application under Section 333(2) of the Criminal Procedure Code the provisions are as hereunder reproduced;
“Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.”
20. The application of the provisions of this section in sentencing upon conviction is mandatory. A perusal of the Charge Sheet contained in the trial Court record reveals that the Appellant was arrested on 21/09/2021 and arraigned on 23/09/2021 when he took plea and was never granted cash bail or bond and he thus remained in custody. He was sentenced on 5/09/2022. In this regard, I find merit in this limb of the appellant’s Application and the same is allowed. I therefore direct that the aggregate period spent by the appellant in custody be factored into his sentence of 30 years’ imprisonment. Right of Appeal 14 days.
Read Dated and Signed at ITEN on 3rd April 2025