Case Metadata |
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| Case Number: | Criminal Appeal 11 of 1994 |
|---|---|
| Parties: | Wycliff Shiuka Wahome v Republic |
| Date Delivered: | 25 Feb 1994 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Nakuru |
| Case Action: | Judgment |
| Judge(s): | Philip Kiptoo Tunoi, Abdul Majid Cockar, John Mwangi Gachuhi |
| Citation: | Wycliff Shiuka Wahome v Republic [1994] eKLR |
| Case History: | (Appeal from a judgment of the High Court of Kenya at Nakuru (Mr Justice D M Rimita) dated 19th November 1993, in HCCRA No 269 of 1991) |
| Court Division: | Criminal |
| County: | Nakuru |
| History Docket No: | HCCRA 269 of 1991 |
| History Judges: | David Maitai Rimita |
| Case Summary: | Wahome v Republic Court of Appeal, at Nakuru February 25, 1994 Gachuhi, Cockar & Tunoi JJ A Criminal Appeal No 11 of 1994 (Appeal from a judgment of the High Court of Kenya at Nakuru (Mr Justice D M Rimita) dated 19th November 1993, in HCCRA No 269 of 1991) Criminal Practice and Procedure – appeals – appeal against sentence - Court of Appeal not to hear an appeal against a lawful sentence except where the same has been enhanced by the High Court – section 361 (1) (b) Criminal Procedure Code. Criminal Practice and Procedure – sentencing – circumstances when Court of Appeal can interfere with sentence on second appeal. The appellant was tried jointly with another for the offence of robbery, convicted and sentenced to 10 years imprisonment with 10 strokes of the cane. They both appealed against the sentence to the High Court, however, their appeals were heard by separate judges. In the case of the appellant’s co-accused his appeal against sentence was successful and the same was reduced to 4 years with 5 strokes of corporal punishment. The appellant’s appeal was however dismissed by the judge who heard it hence a second appeal to the Court of Appeal. Held: 1. Section 361 (1) (b) of the Criminal Procedure Code has prescribed that on a second appeal the Court of Appeal shall not hear an appeal against a lawful sentence except where the same has been enhanced by the High Court. 2. The Court of Appeal has interfered with a sentence where it is satisfied that there is an error in principle involved in the imposition of the sentence. 3. Whereas A1 is sentenced to 4 years imprisonment and 5 strokes, the appellant, charged with same offence and convicted on the same facts by the same magistrate will serve a sentence of 10 years imprisonment and 10 strokes. Such an inordinate disparity in the two sentences is a grave anomaly as well as is evidence of an error in principle in the imposition of sentences. Appeal allowed, sentence reduced to 4 years and 5 strokes of corporal punishment. Cases No cases referred to. Statutes 1. Penal Code (cap 63) section 296(1) 2. Criminal Procedure Code (cap 75) section 361 (1) (b) |
| History County: | Nakuru |
| Case Outcome: | Appeal allowed, sentence reduced to 4 years and 5 strokes of corporal punishment. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT NAKURU
( Coram: Gachuhi, Cockar & Tunoi JJ A )
CRIMINAL APPEAL NO. 11 OF 1994
BETWEEN
WYCLIFF SHIUKA WAHOME.............................................................APPELLANT
AND
REPUBLIC.........................................................................................RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr Justice D M Rimita) dated 19th November 1993,
in
HCCRA No 269 of 1991)
*******************************
JUDGMENT
The appellant together with one James Kariuki Mwati (A1) (hereafter referred to as J K Mwati) and one Joseph Mureithi Mburu (A3) was charged with offence of robbery contrary to section 296 (1) of the Penal Code J K Mwati (A1) and the appellant both pleaded guilty to the offence, admitted the facts as stated by the prosecutor, and were thereafter convicted on plea. After listening to their pleas in mitigation the trial magistrate sentenced each of them to a period of 10 years’ imprisonment with corporal punishment of 10 strokes of the cane on 18th February, 1991. J K Mwati appealed to the High Court against the sentence and the appellant appealed to the High Court against conviction and sentence.
For some reason which is not clear from the files of the two lower courts, the two appeals were not heard together. Tanui, J heard the appeal filed by J K Mwati (A1) and on 18th October, 1991, set aside the sentence passed by the magistrate and substituted it with a sentence of 4 years’ imprisonment with 5 strokes of the cane.
The appeal filed by the appellant was heard by Rimita, J on 19th November, 1993, who on the same day dismissed the appeal against both conviction and sentence. Thus the sentence of 10 years’ imprisonment with 10 strokes remained unchanged in the case of the appellant. In his grounds of appeal to the Court of Appeal against sentence the appellant referred to the afore-described reduction of prison sentence and the corporal punishment in the case of his co-accused.
Section 361(1) (b) of the Criminal Procedure Code has prescribed that on a second appeal the Court of Appeal shall not hear an appeal against a lawful sentence except where the same has been enhanced by the High Court. However, the Court of Appeal has interfered with a sentence where it is satisfied that there is an error in principle involved in the imposition of the sentence. The position here now is that whereas J K Mwati (A1) is sentenced to 4 years imprisonment and 5 strokes, the appellant, charged with same offence and convicted on the same facts by the same magistrate will serve a sentence of 10 years’ imprisonment and 10 strokes. Such an inordinate disparity in the two sentences is a grave anomaly as well as is evidence of an error in principle in the imposition of sentences. We have been informed that in the appellant’s case, Rimita, J had not been made aware of the result of the other appeal. We are certain that if he had been made aware of Tanui’s decision, his own decision on the sentence would have thereby been affected very much in favour of the appellant. In the result, we allow the appeal against the sentence which we now set aside and substitute it with a sentence of 4 years’ imprisonment with 5 strokes with effect from the date the trial magistrate imposed his sentence. We would also observe here that to avoid such anomalies in future, it would be of great benefit if the registries concerned and the Attorney General’s office ensure that appeals filed by all the co-accused are heard together at the same time by the same 1st appellate judge(s).
Dated and Delivered at Nakuru this 25th day of February 1994.
J.M.GACHUHI
................................
JUDGE OF APPEAL
A.M.COCKAR
.................................
JUDGE OF APPEAL
P.K.TUNOI
...................................
JUDGE OF APPEAL
I certify that this is a true copy of
the original.
DEPUTY REGISTRAR
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