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Court of AppealPartially AllowedCriminal Appeal No. 164 of 2003· [2004] KECA 115 (KLR)

Christopher Lopeite Lokai v Republic [2004] KECA 115 (KLR)

Court of Appeal

28 September 2004

JGJ.E. Gicheru

P.K. Tunoi WDW.S. Deverell

257 words in judgment

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The bottom line

Kenya's Court of Appeal cut a manslaughter sentence from six to four years, ruling that time already spent in custody must genuinely count in sentencing.

What this practically means

Executive summary

The Court of Appeal at Eldoret (Gicheru CJ, Tunoi JA and Deverell Ag JA) disposed of this appeal against sentence in a brief judgment of the court. The appellant, Christopher Lopeite Lokai, had pleaded guilty to manslaughter contrary to section 205 of the Penal Code and was sentenced to six years' imprisonment by the High Court at Kitale (Birech, Commissioner of Assize) on 17 July 2003. By then he had already spent four years and seven months in custody. The sentencing judge had stated that he took that period into account, but the appellate court expressly rejected that assertion, finding that he had not in fact done so. Weighing the circumstances of the offence — a drunken brawl — against the substantial time already served, the court concluded that the six-year term was harsh and that four years' imprisonment would have been appropriate. It accordingly allowed the appeal to the extent of reducing the sentence from six years to four years, and made no other order; the conviction, which followed a guilty plea and was not the subject of the appeal, was left undisturbed. The judgment cites no authority and makes no order as to costs. For lower courts the decision now stands for the proposition that pre-sentence custody must be genuinely, not nominally, factored into sentencing, and that where an accused has served a substantial period before sentence, an otherwise lawful term may be held excessive and reduced on appeal.

Key legal issues

Whether the Commissioner of Assize in fact took into account the four years and seven months the appellant had spent in custody when passing sentence.

Holding

No. Despite the sentencing judge's statement that he had taken the period of custody into account, the Court of Appeal found that he had not in fact done so, and therefore treated the sentence as one that ignored pre-sentence custody.

Reasoning

The appellate court reviewed the sentence afresh. It noted that the appellant had pleaded guilty to manslaughter and had been in custody for four years and seven months before sentence. Although the sentencing judge said he had factored that period in, the court expressly declined to accept that assertion, showing that a sentencing court's bare recital does not establish that pre-sentence custody was actually considered when the term was fixed.

p. 1

Whether the sentence of six years' imprisonment for manslaughter was excessive in the circumstances of the case.

Holding

Yes. The court held the sentence harsh, given that the offence arose out of a drunken brawl and the appellant had already served four years and seven months, and substituted a sentence of four years' imprisonment.

Reasoning

The offence was committed in circumstances of a drunken brawl, which bears on its gravity, and the appellant had spent four years and seven months in custody before being sentenced. Weighing these matters together, the court concluded that the six-year term was harsh in the circumstances and that four years' imprisonment would have been the appropriate sentence. It therefore allowed the appeal to that extent and reduced the sentence accordingly, without disturbing the conviction.

p. 1

Legal principles established

A sentencing court must genuinely, not nominally, take into account the period an accused person has already spent in custody; a bare assertion by the sentencing judge that the period was considered may be rejected on appeal and the sentence then reviewed as excessive.
Where an offence of manslaughter is committed in circumstances of a drunken brawl and the accused has already served a substantial period in custody before sentence, a six-year term is harsh and will be reduced on appeal.

Court orders

1.Appeal allowed to the extent that the sentence of six years' imprisonment imposed by the High Court is reduced to a sentence of four years' imprisonment.

Authorities

Legislation

Penal Codesection 205

On appeal from: High Court of Kenya at Kitale; H.C.CR.C. NO. 7 OF 2000
Jurisdiction invoked: Not expressly invoked in the judgment. The matter came before the Court of Appeal as a criminal appeal against sentence only (Criminal Appeal No. 164 of 2003) from the High Court at Kitale; the only statutory provision cited is section 205 of the Penal Code, which defines the offence of manslaughter and is not a jurisdictional provision.

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Christopher Lopeite Lokai v Republic [2004] KECA 115 (KLR)", Case Analysis (2004). Criminal Appeal No. 164 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/115/eng@2004-09-28

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