1.The appellant was on 30th April 2020 found guilty of the offence of Robbery with Violence on 6th May 2022 sentenced to life imprisonment.
2.He was aggrieved and filed appeal against both the conviction and sentence.
3.While the appeal was pending hearing and determination he filed an application for bail pending appeal on the ground of poor health, among others, which was refused.
4.The appeal on the conviction and sentence was heard, vide the judgment of this court delivered on 19th May 2022, the conviction was sustained.
5.The court took more time to consider whether or not to interfere with the sentence, in view of the appellant’s submission with regard to his health. This is pursuant to the powers of the High Court set out at Section 354 of the Criminal Procedure Code in particular Section 354 (3) (a) & (b); which state
6.To assist the court to consider which of the options provided hereinabove with respect to the sentence, I requested for a Probation Officer’s Report. One headed “Resentencing Report” dated 15th June 2022 was filed by Probation and After Care Services (PACs) Nakuru. Upon perusal of the report I noted with concern that the views of the victim were not captured. The officer indicated that “the victim could not be located by the time of writing the report having moved jobs.” No details were given as to how the officer had arrived at this conclusion. That sentence was in my view not sufficient explanation as to why the victim’s views had not been captured.
7.Taking into consideration the nature of the offence, I returned the report and directed that efforts be made to trace the victim.
8.Vide a report filed on 1st July 2022, it was indicated that the victim was traced to the same place he had worked at the time of the commission of the offence but now at managerial position. The Probation Officer observed that he was still traumatized by the events of that 8th September 2012.
9.Be that as it may the Probation Officer’s Report recommends that the appellant be given a three year non-custodial sentence.
10.I have carefully considered the Probation Officers Report, circumstances of this offence and the circumstances of the accused person. The only issue is whether I ought to interfere with the sentence of life imprisonment imposed by the learned trial magistrate.
11.It is trite that sentencing is the discretion of the trial court and there are principles set out for guiding an appellate court in interfering with sentence. I find illumination on this in the case, cited by Odunga J in Nicholas Mukila Naletei v Republic  eKLR, S vs Malgas 2001 (1) SACR 469 (SCA) at paragraph 12. It says
12.Or if the sentence is so excessive to be an error of principle see Court of Appeal in Shadrack Kipkoech Kogo vs Republic Eldoret Criminal Appeal No. 253 of 2003. See also Court of Appeal in Benard Kimani Gacheru vs Republic  eKLR where it was held ;
12.The appellant herein relied solely on the ground of being sick as the reason for asking this court to reconsider his sentence. Was the learned trial magistrate aware of this when she meted out the sentence that she did?
13.It is evident that the appellant had, during the trial indicated that he was unwell. The record will show that the learned trial magistrate observed that the appellant used his alleged ill health to get out on bond, subsequently absconded, leading to the eventual arrest of his surety. Upon his arrest, the surety made efforts to have the appellant arrested and it was his (surety’s testimony on oath) that the appellant as arrested while in the process of committing another offence for this, I must of necessity quote from the record.
14.For the avoidance of doubt I reproduce those proceedings here: This is what the surety told the court when he came to stand surety:
15.After the accused absconded: Upon his arrest and at the application for withdrawal of the surety the surety stated on oath.
16.Instead of a rejoinder this is what the appellant told the court;
17.Thereafter, the learned trial magistrate rendered the following Ruling;RULING
18.Evidently, the allegations that the appellant though out on bond on account of illness were so serious that the learned trial magistrate found them to be compelling reasons to deny the appellant bond. There was no appeal or review.
19.When he came on an application for bail pending appeal it was the same record that worked against him.
20.But what stands out from that record is that the appellant did not deny or challenge what his own surety stated on oath, he only asked the court to allow him to get another surety which the court declined. Why is this important yet the issue is sentencing? It goes to show that when the learned trial magistrate issued the sentence, the court was well aware of the appellant’s alleged illness. The learned trial magistrate took into consideration the fact of the appellant’s sickness.
21.This was not a cause of re-sentencing, it was an appeal against conviction and sentence. The Learned trial magistrate did not sentence the appellant to death, as required by Section 296 (2) of the Penal Code, but sentenced him to imprisonment for life, in deference to Muruatetu, hence the appellant’s case does not come into the purview of the Resentencing in Muruatetu.
22.Be that as it may, the review of sentence on appeal is allowed by the law but only within the specified parameters again in agreement with Nicholas Mukila Ndetei, there is room taking into consideration the circumstances of the offence, both the aggravating and mitigating circumstances; the motor vehicle was recovered, the victim did not sustain very serious physical injures serious but carries trauma to date, however the appellant was in the company of others, they were armed with a pistol, and fed the victim a poisonous substance.
23.The Kenya Prisons Service is a correctional facility whose mission is ‘To contain offenders in humane safe conditions in order to facilitate the administration of justice, rehabilitation, social integration and community protection’. Its motto is Kurekebisha na Haki. The appellant has demonstrated through his conduct during the trial in the subordinate court that, that despite his heath complaints, he requires containment for purposes of correction and rehabilitation.
24.In view of my finding that the learned trial magistrate was alive to his complaint, bearing in mind the numerous authorities on this point, I consider a review of the life sentence to 30 years’ imprisonment to run from the date of his re arrest in 2019 proportionate.
25.In the end, the appeal is disposed of as follows: the conviction is sustained. The sentence is reduced to 30 years’ imprisonment to run from 2019.
26.Orders accordingly. Right of Appeal Explained.