' (Being an Appeal against the Sentence meted at the Chief Magistrates’ Court at Nyamira, in CMCCR No. 240 of 2021 by Hon. W.C. Waswa, Resident Magistrate on 10 th August 2021.)
The Appellant was charged with the offence of threatening to kill contrary to Section 223 (1) of the Penal Code. The particulars of the offence were that on 28 th December 2020 in Kegogi Sub-Location, in Nyamira South Sub-County within Nyamira County without lawful authority uttered, “Amanyinga yoo omogaka oo twayanywete botuko ayao tokoyanywa mobaso” meaning “Your husband’s blood we drunk at night but yours we will drink during the day” , threatening that you will kill TABITHA ATEMA SUNGUTI whose husband was gruesomely murdered by unknown people on the night of 13 th July 2020.
The Appellant pleaded not guilty to the offence and a trial was conducted in which the prosecution presented evidence as follows: -
PW1, Tabitha Atema (Complainant) testified that on 28th December 2020 at about 3.00 p.m. while at her shop, the Appellant, whom she knew as a village mate, came and uttered in Ekegusii that “they drank her husband’s blood at night and would drink hers during the day.” She was shocked since her husband had been killed a few months earlier in July 2020 under gruesome circumstances. She stated that her husband’s brother, John Amisi, was present during the incident. She further testified that the Appellant repeated the threats the following day and that she eventually reported the matter to Nyamira Police Station on 11th January 2021. She produced the deceased’s death certificate and other related documents.
PW2, John Amisi Mamboleo (Complainant’s brother-in-law) confirmed that on 28th December 2020, at about 6.00 p.m., while at Tabitha’s shop, he heard the Appellant tell her that they had drunk her husband’s blood at night and would drink her blood during the day. He corroborated PW1’s account and stated that the threats were made in Ekegusii. He linked the threats to existing family disputes over land following their father’s death.
PW3, Corporal John Pere (Investigating Officer) testified that he took over the case on 11th January 2021 after the complainant reported the matter. He recorded statements from the complainant and her witnesses. From his inquiries, he established that there had been longstanding family disputes over land, and that the complainant’s husband had been killed in July 2020 under unresolved circumstances. He confirmed that the Appellant was arrested on 22nd February 2021 and charged after investigations established that he had uttered the threatening words to PW1.
Defence Case
When placed on his defence, DW1, William Abuki Nyabuti (Appellant) denied the charges. He testified that he was a casual labourer and was arrested on 22nd February 2021 following complaints by the complainant. He claimed that the complainant fabricated the case against him because she disliked the fact that he used to drink alcohol with her late husband. He further stated that he had no land dispute with her, respected her as an aunt, and had never issued any threats.
At the end of the trial, the Appellant was convicted of the said offence and sentenced to serve ten (10) years imprisonment thereby triggering the filing of the instant appeal in which the Appellant listed 6 grounds which can be summarized into an appeal against sentence. According to Appellant, the sentence imposed against him was harsh and manifestly excessive in the circumstances.
The Appeal was canvassed by way of written submissions which I have considered.
As the first appellate court, I am enjoined to reconsider, reanalyse and re-evaluate the evidence afresh while bearing in mind that I did not have the opportunity to observe the demeanour of witnesses. This duty was enunciated in Okeno vs. Republic [1972] EA 32 , where the Court of Appeal stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination … and the appellate court must itself weigh conflicting evidence and draw its own conclusions.”
Issues for Determination
After considering the grounds of appeal and submissions of both parties, I find that the sole issue that arises for determination is w hether the sentence of ten (10) years’ imprisonment imposed upon the Appellant was harsh and excessive in the circumstances of the case.
Analysis and Determination
Section 223(1) of the Penal Code prescribes a maximum sentence of ten (10) years’ imprisonment for the offence of threatening to kill. The trial court exercised its discretion and imposed the statutory maximum sentence.
It is trite law that sentencing is a matter that falls within the discretion of the trial court. However, an appellate court may interfere with the sentence if it is shown that; the trial court acted on a wrong principle; the sentence imposed is manifestly harsh and excessive; or the court overlooked material factors. This principle was clearly laid down in Ogolla s/o Owuor vs. Republic [1954] EACA 270 , where the Court stated: -
“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors, or the sentence is manifestly excessive in view of the circumstances of the case.”
Similarly, in Bernard Kimani Gacheru vs. Republic [2002] eKLR , the Court of Appeal held: -
“It is now settled law … that an appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case or the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.”
In the present case, the record shows that the Appellant, in the context of a family marred by a previous killing, uttered chilling words to the widow of the deceased suggesting that her blood would be drunk as her husband’s. The words were indeed threatening, traumatizing and calculated to instil fear.
My finding is that while the offence in question was grave, it must also be considered that no actual physical violence accompanied the threat. The Appellant was a first offender and the threat was verbal, not followed by execution.
The trial court rendered itself as follows before imposing the maximum sentence: -
“This court has considered the contents of the pre-sentence report. According to the report. The family of the accused person is still threatening the complainant. The sister to the accused namely Nancy has personally visited the complainant at her home threatening and telling her to withdraw the case lest she faces dire consequences. The accused also while in custody has called the complainant threatening her over this case. Clearly, the complainant is under threat from the accused and his family. The court must clamp such threats and dispense justice. The charges herein are grave considering the circumstances of this case. Therefore, based on the foregoing, the accused is sentenced to serve ten (10) years imprisonment. ”
From the above extract of the trial court’s decision, it is clear that the said court considered the facts of the case and the gravity of the offence before passing the maximum sentence. My view is that the sentence meted by the trial court was intended to serve both a deterrent and a corrective objective as the complainant’s husband had been murdered under mysterious circumstances and was alleged to have been buried in a hurry by members of the family, including the Appellant’s family, who were at loggerheads with the complainant and her deceased husband.
These facts make a strong case for meting out punishment that is commensurate to the gravity of the offence of threatening to kill. I note the Pre-Sentence Report indicated that the Appellant continued to threaten the complainant while he was in remand and further that his own sister asked the complainant to withdraw the case or face dire consequences. This court court is appalled by the Appellant’s conduct and attitude towards respect for human life. In R vs. AEM (200) NZ it was held that:-
“One of the main purposes of punishment is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that if they yield them, they will meet punishment.”
My above findings notwithstanding, I am still minded to consider that there were mitigating factors in this case that could have influenced the court in passing a less severe sentence. In Shadrack Kipkoech Kogo vs. Republic, Eldoret Criminal Appeal No. 253 of 2003 , the Court of Appeal emphasized:
“Sentence is essentially an exercise of discretion … and must be guided by evidence, facts of the case, and relevant principles. A maximum sentence should only be imposed where the offence is of the worst kind and the circumstances call for it.”
It is my considered view that even though the offence was serious, the trial magistrate erred in imposing the statutory maximum sentence in the absence of aggravating circumstances such as repeat offending, violence, or actual execution of the threat. This failure, by the trial court, makes the maximum sentence manifestly excessive.
Conclusion
In sum, I find that while the conviction was safe and hereby upheld owing to the corroborated evidence of threats to kill the complainant, the sentence of ten (10) years’ imprisonment was harsh and excessive in the circumstances.
Accordingly, the ten (10) years’ imprisonment is hereby set aside and substituted with a sentence of five (5) years’ imprisonment , which sentence shall factor in the period, if any, that the Appellant spent in custody while awaiting his trial in line with the provisions of Section 333(2) of the Criminal Procedure Code.
'
The Appellant was charged with the offence of threatening to kill contrary to Section 223 (1) of the Penal Code. The particulars of the offence were that on 28 th December 2020 in Kegogi Sub-Location, in Nyamira South Sub-County within Nyamira County without lawful authority uttered, “Amanyinga yoo omogaka oo twayanywete botuko ayao tokoyanywa mobaso” meaning “Your husband’s blood we drunk at night but yours we will drink during the day” , threatening that you will kill TABITHA ATEMA SUNGUTI whose husband was gruesomely murdered by unknown people on the night of 13 th July 2020.
The Appellant pleaded not guilty to the offence and a trial was conducted in which the prosecution presented evidence as follows: -
PW1, Tabitha Atema (Complainant) testified that on 28th December 2020 at about 3.00 p.m. while at her shop, the Appellant, whom she knew as a village mate, came and uttered in Ekegusii that “they drank her husband’s blood at night and would drink hers during the day.” She was shocked since her husband had been killed a few months earlier in July 2020 under gruesome circumstances. She stated that her husband’s brother, John Amisi, was present during the incident. She further testified that the Appellant repeated the threats the following day and that she eventually reported the matter to Nyamira Police Station on 11th January 2021. She produced the deceased’s death certificate and other related documents.
PW2, John Amisi Mamboleo (Complainant’s brother-in-law) confirmed that on 28th December 2020, at about 6.00 p.m., while at Tabitha’s shop, he heard the Appellant tell her that they had drunk her husband’s blood at night and would drink her blood during the day. He corroborated PW1’s account and stated that the threats were made in Ekegusii. He linked the threats to existing family disputes over land following their father’s death.
PW3, Corporal John Pere (Investigating Officer) testified that he took over the case on 11th January 2021 after the complainant reported the matter. He recorded statements from the complainant and her witnesses. From his inquiries, he established that there had been longstanding family disputes over land, and that the complainant’s husband had been killed in July 2020 under unresolved circumstances. He confirmed that the Appellant was arrested on 22nd February 2021 and charged after investigations established that he had uttered the threatening words to PW1.
Defence Case
When placed on his defence, DW1, William Abuki Nyabuti (Appellant) denied the charges. He testified that he was a casual labourer and was arrested on 22nd February 2021 following complaints by the complainant. He claimed that the complainant fabricated the case against him because she disliked the fact that he used to drink alcohol with her late husband. He further stated that he had no land dispute with her, respected her as an aunt, and had never issued any threats.
At the end of the trial, the Appellant was convicted of the said offence and sentenced to serve ten (10) years imprisonment thereby triggering the filing of the instant appeal in which the Appellant listed 6 grounds which can be summarized into an appeal against sentence. According to Appellant, the sentence imposed against him was harsh and manifestly excessive in the circumstances.
The Appeal was canvassed by way of written submissions which I have considered.
As the first appellate court, I am enjoined to reconsider, reanalyse and re-evaluate the evidence afresh while bearing in mind that I did not have the opportunity to observe the demeanour of witnesses. This duty was enunciated in Okeno vs. Republic [1972] EA 32 , where the Court of Appeal stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination … and the appellate court must itself weigh conflicting evidence and draw its own conclusions.”
Issues for Determination
After considering the grounds of appeal and submissions of both parties, I find that the sole issue that arises for determination is w hether the sentence of ten (10) years’ imprisonment imposed upon the Appellant was harsh and excessive in the circumstances of the case.
Analysis and Determination
Section 223(1) of the Penal Code prescribes a maximum sentence of ten (10) years’ imprisonment for the offence of threatening to kill. The trial court exercised its discretion and imposed the statutory maximum sentence.
It is trite law that sentencing is a matter that falls within the discretion of the trial court. However, an appellate court may interfere with the sentence if it is shown that; the trial court acted on a wrong principle; the sentence imposed is manifestly harsh and excessive; or the court overlooked material factors. This principle was clearly laid down in Ogolla s/o Owuor vs. Republic [1954] EACA 270 , where the Court stated: -
“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors, or the sentence is manifestly excessive in view of the circumstances of the case.”
Similarly, in Bernard Kimani Gacheru vs. Republic [2002] eKLR , the Court of Appeal held: -
“It is now settled law … that an appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case or the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.”
In the present case, the record shows that the Appellant, in the context of a family marred by a previous killing, uttered chilling words to the widow of the deceased suggesting that her blood would be drunk as her husband’s. The words were indeed threatening, traumatizing and calculated to instil fear.
My finding is that while the offence in question was grave, it must also be considered that no actual physical violence accompanied the threat. The Appellant was a first offender and the threat was verbal, not followed by execution.
The trial court rendered itself as follows before imposing the maximum sentence: -
“This court has considered the contents of the pre-sentence report. According to the report. The family of the accused person is still threatening the complainant. The sister to the accused namely Nancy has personally visited the complainant at her home threatening and telling her to withdraw the case lest she faces dire consequences. The accused also while in custody has called the complainant threatening her over this case. Clearly, the complainant is under threat from the accused and his family. The court must clamp such threats and dispense justice. The charges herein are grave considering the circumstances of this case. Therefore, based on the foregoing, the accused is sentenced to serve ten (10) years imprisonment. ”
From the above extract of the trial court’s decision, it is clear that the said court considered the facts of the case and the gravity of the offence before passing the maximum sentence. My view is that the sentence meted by the trial court was intended to serve both a deterrent and a corrective objective as the complainant’s husband had been murdered under mysterious circumstances and was alleged to have been buried in a hurry by members of the family, including the Appellant’s family, who were at loggerheads with the complainant and her deceased husband.
These facts make a strong case for meting out punishment that is commensurate to the gravity of the offence of threatening to kill. I note the Pre-Sentence Report indicated that the Appellant continued to threaten the complainant while he was in remand and further that his own sister asked the complainant to withdraw the case or face dire consequences. This court court is appalled by the Appellant’s conduct and attitude towards respect for human life. In R vs. AEM (200) NZ it was held that:-
“One of the main purposes of punishment is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that if they yield them, they will meet punishment.”
My above findings notwithstanding, I am still minded to consider that there were mitigating factors in this case that could have influenced the court in passing a less severe sentence. In Shadrack Kipkoech Kogo vs. Republic, Eldoret Criminal Appeal No. 253 of 2003 , the Court of Appeal emphasized:
“Sentence is essentially an exercise of discretion … and must be guided by evidence, facts of the case, and relevant principles. A maximum sentence should only be imposed where the offence is of the worst kind and the circumstances call for it.”
It is my considered view that even though the offence was serious, the trial magistrate erred in imposing the statutory maximum sentence in the absence of aggravating circumstances such as repeat offending, violence, or actual execution of the threat. This failure, by the trial court, makes the maximum sentence manifestly excessive.
Conclusion
In sum, I find that while the conviction was safe and hereby upheld owing to the corroborated evidence of threats to kill the complainant, the sentence of ten (10) years’ imprisonment was harsh and excessive in the circumstances.
Accordingly, the ten (10) years’ imprisonment is hereby set aside and substituted with a sentence of five (5) years’ imprisonment , which sentence shall factor in the period, if any, that the Appellant spent in custody while awaiting his trial in line with the provisions of Section 333(2) of the Criminal Procedure Code.
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