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JudgmentVICTOR MURIMI VS The Republic6 min read

VICTOR MURIMI VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. Lucy Ambasi (C.M) in the Magistrate’s Court at Embu Criminal Case No. E398 of 2023 on 26th July, 2023)

  1. The appellant herein was charged with the offence of threatening to kill contrary to section 223 (1) of the penal code; the particulars being that on the 4th day of June, 2023 at around 1530 hours at Kiruori area, Kibogi location in Embu North Sub County within Embu County without lawful excuse uttered words “ I will kill you” threatening to kill Lucy Wamugo while armed with a panga.
  2. He was arraigned in Court and he pleaded guilty to the charge despite having been cautioned on the sentence by the trial Court.  On the 20/6/2023, the facts were read out to him by the prosecution and he admitted the facts as read out following which he was convicted on his own guilty plea and was sentenced to serve  a sentence of 5(five) years.
  3. He filed a petition of appeal on 14th December, 2023 but in his submissions, he set out a different set of grounds as follows;
  4. The learned trial magistrate erred in law and facts by failing to consider the appellants plea in mitigation.
  5. The learned magistrate erred in law and facts by imposing harsh and excessive sentence contrary to the judiciary sentencing guidelines.
  6. In this appeal the Court gave directions on filing of submissions which directions the parties complied with.
  7. In his submissions, the appellant stated that the sentence imposed on him is excessive in the circumstances of the case having pleaded guilty to the charge and that he was a first offender. He urged the Court to consider the investigating factors which included his age, the psychological state that he was in, at the time and the relationship between him and the complainant, who is his grandmother.  He has prayed for a non- custodial sentence or discharge on condition.
  8. The respondent submitted that the appellant having pleaded guilty to the charge can only appeal on sentence and made reference to the case of Alexander Lukoye Malika Vs. Republic (2015) eKLR.  On sentence, it was submitted that the same was within the parameters provided for under the penal section that the appellant was charged.  Reference was made to the case of Shadrack Kipkoech Kogo Vs. R (Criminal appeal number 253 of 2003.  It urged the Court to dismiss the appeal.
  9. The Court has considered the submissions by the appellant and the prosecution.  The appellant herein was convicted on his own plea of guilt.  It is trite that a Court can only interfere with a situation where the accused person has pleaded guilty to a charge where;
  10. The plea is imperfect, ambiguous or unfinished such that the trial Court erred in treating it as a plea of guilty.
  11. Where an accused person pleaded guilty as a result of mistake or misapprehension of the facts.
  12. Where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law; and
  13. Where upon admitted facts, the appellant could not in law have been convicted of the offence charged.
  14. The Court has gone through the record of the trial Court and it is noted that the procedural requirement for recording a plea of guilty as provided for under section 207 (1) and (2) of the Criminal Procedure Code was followed. The plea was taken in a language that the appellant understood, that is Kiswahili Language. The Court cautioned him on sentence and even after the facts were read to him, he admitted the facts as read out to him.  He was given an opportunity to mitigate and he did so, in a manner that was comprehensible. The plea of guilty was therefore unequivocal and that may explain why he abandoned his initial grounds of appeal in his petition of appeal.
  15. The duty of the first appellate Court was explained in the case of Okeno Vs. Republic (1972/EA 32 where it was held:-

An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vs. Republic (1957) EA 336 and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weight conflicting evidence and draw it’s own conclusion (Shantilal M. Ruwale Vs. R (1957) EA 570.  It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the Lower Court’s findings and conclusions.  It must make it’s own findings and draw its own conclusion. Only then can it decide whether the magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. (see Peters Vs. Sunday Post, (1958) EA. 424”

  1. The appellant in his submissions raised only 2 grounds of appeal.  On the first ground on mitigation, I have perused the record and it is clear that he was given an opportunity to mitigate and the trial Court took his mitigation into account in sentencing him.  The trial Court noted that he is a repeat offender and sentenced him to five (5) years imprisonment.
  2. On the sentence, the principles upon which a Court can interfere with sentence imposed by the trial Court were discussed in the case of Robert Mutungi Muumbi Vs. Republic (2015) eKLR where the Court of appeal cited with approval the case of Benard Kimani Gacheru Vs. Republic CR. APP Number 188 of 2000 (Nakuru) where it was held:

“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 manifesting 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 have not passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court, on sentence

  1. The Court requires to consider whether the sentence is manifestly excessive, whether the trial Court overlooked some material factor or took into account some wrong material and acted on the wrong principles.  The fact that the sentence is excessive is not sufficient on its own as a basis for reducing sentence.
  2. In the present case, the appellant was charged with the offence under section 223 (1) of the Penal Code which provides as follows:

“Any person who without lawful excuse utters, or directly or indirectly causes any person to receive a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years”

The appellant was sentenced to serve five (5) years which sentence is within the parameters provided for under the penal section and in fact, it is less than the maximum provided for.

  1. The appellant has not demonstrated in any way that the sentence passed by the trial Court is illegal or excessive or that the trial Court took into account irrelevant factors in passing the sentence.
  2. In view of the foregoing, I find that the appeal has no merit and it is hereby dismissed.
  3. It is so ordered.

Delivered, dated and signed at Embu this 28th day of August, 2024.


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