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Kimani v Republic (Criminal Appeal 24 of 2019) [2022] KEHC 16225 (KLR) (7 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16225 (KLR)
Republic of Kenya
Criminal Appeal 24 of 2019
J Wakiaga, J
December 7, 2022
Between
James Ndungu Kimani
Appellant
and
Republic
Respondent
(Being an appeal from the original conviction and sentence in Kigumo SPM CR NO 313 of 2018 Hon.A MWANGI PM)
Judgment
1.The appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code, with an alternative charge of handling stolen goods contrary to section 322(1)(2) of the Penal Code.
2.He was tried convicted and sentenced to serve ten (10) years imprisonment and being dissatisfied with the said conviction and sentence, he filed this appeal and raised the following ground of appeal: a) the trial court failed to invoke section 333 of the CPC to take into account the period in custody.
3.When the appeal came up for hearing before me, the appellant submitted that he was only appealing against sentence and not conviction on the ground that the court did not take into account the pre conviction detention while passing the sentence herein and stated that he had been in custody since the year 2019.
4.On behalf of the state, it was contended that the sentence was very lenient and that to was not clear how the trial court arrived at the same and that the court should enhance the same.
5.In sentencing the appellant, the trial court stated that the circumstances of the offence were not so aggravated since the accused where not keen on harming the complainant.
6.It is also noted that the respondent did not file a cross appeal on sentence neither did they issue any notice and or warning to the appellant of the intention to enhance the sentence and therefore that right does not accrue to the same.
7.Sentence is at the discretion of the trial court which an appellant court can only interfere with if the same acted on wrong principle and having given the appellant an imprisonment term of ten years, the same was entitled to the right under section 333(2) of the CPC and having not accorded the appellant the said right, the sentence herein was passed based on wrong principles and is therefore amenable to be interfered with by the court of appeal.
8.I therefore find merit on the appeal herein on sentence, which I hereby substitute with a sentence of ten years with effect from March 13, 2018 when the appellant first appeared in court and it is ordered.
DATED SIGNED AND DELIVERED AT MURANGA THIS 7th DAY OF DECEMBER, 2022.J. WAKIAGAJUDGEIn the presence ofCourt Assistant C. MutahiMs Otieno ProsecutorAppellant in person
