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Court of AppealPartially AllowedCriminal Appeal No. 4 of 1996· [1996] KECA 110 (KLR)

Saumu Cheptanui Kikwai & another v Republic [1996] KECA 110 (KLR)

Court of Appeal

27 February 1996

RKR. O. Kwach

P. K. Tunoi ASA. B. Shah

271 words in judgment

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The bottom line

Kenya's Court of Appeal released two mothers jailed for manslaughter, ruling their three-year sentences excessive because they had already served substantial time and the main perpetrators were never charged.

What this practically means

Executive summary

The appellants, Saumu Cheptanui Kikwai and Annah Chepkorir Lasoi, were jointly charged with murder before the High Court at Nakuru (Ondeyo, J). The prosecution accepted their pleas of guilty to manslaughter, and each was sentenced to three years' imprisonment in October 1994. They appealed to the Court of Appeal at Nakuru against the sentences as excessive. At the commencement of the appeal, their counsel, Mr. Rotich, informed the court that the appellants wished to withdraw the appeal. The court asked the appellants directly whether withdrawal was their instruction; they replied in the negative, and the court rejected the application for withdrawal. On the merits, the court noted that the appellants were single mothers with many children, some of tender years, and had been in remand and prison since January 1994. It further observed that the prosecution was selective in that the main perpetrators of the crime were not indicted and arraigned. In those particular circumstances, the court held that the sentences called for its interference. It allowed the appeal against sentence in part, reducing the three-year sentences to the period already served and ordering that the appellants be released forthwith unless otherwise lawfully held. The judgment of the court was delivered at Nakuru on 27 February 1996 by Kwach, Tunoi and Shah, JJ.A, and no costs order was made.

Key legal issues

Whether the sentence of three years' imprisonment for manslaughter was excessive

Holding

The Court of Appeal reduced the sentences to the period already served, taking into account that the appellants were single mothers with many children of tender years, had been in remand and prison since January 1994, and that the prosecution was selective in not arraigning the main perpetrators.

Reasoning

The court considered the personal circumstances of the appellants, including their status as single mothers with young children and the lengthy period already spent in custody since January 1994. It also noted the selective prosecution, in that the main perpetrators of the crime were not indicted and arraigned. In those particular circumstances, the court concluded that the sentences called for its interference and reduced them to time served, ordering immediate release unless otherwise lawfully held.

p. 1

Whether counsel's instruction to withdraw the appeal bound the appellants

Holding

The court rejected the application for withdrawal after the appellants themselves denied that withdrawal was their instruction.

Reasoning

At the commencement of the appeal, counsel for the appellants informed the court that the appellants wished to withdraw the appeal. The court, however, sought the appellants' own confirmation. When asked whether withdrawal was their instruction, the appellants replied in the negative. The court therefore rejected the application for withdrawal and proceeded to hear the appeal against sentence on its merits.

p. 1

Legal principles established

An appellate court may interfere with a sentence where the particular circumstances of the case justify it, including where the accused have spent substantial time in remand and prison and the prosecution was selective in arraigning the main perpetrators.

Court orders

1.The application for withdrawal of the appeal is rejected
2.The sentences of three years' imprisonment are reduced to the period already served
3.The appellants shall be released forthwith unless otherwise lawfully held

On appeal from: High Court of Kenya at Nakuru; H.C.CR.C. No. 18 of 1994
Jurisdiction invoked: Appellate jurisdiction over conviction and sentence from the High Court (Criminal Appeal)

Key timeline

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Cite this brief

Caselaw, "Saumu Cheptanui Kikwai & another v Republic [1996] KECA 110 (KLR)", Case Analysis (1996). Criminal Appeal No. 4 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/110/eng@1996-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.