Stephen Kibet Kirui v Republic [2005] KECA 118 (KLR)

Court of Appeal of Kenya

26 September 2005

P.K. Tunoi EOE.O. O'Kubasu PWP.N. Waki

333 words in judgment

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The bottom line

Kenya's Court of Appeal declined to reduce a ten-year manslaughter sentence, holding that arguments already considered at sentencing cannot be reused on appeal.

What this practically means

Executive summary

The Court of Appeal at Nakuru (Tunoi, O'Kubasu and Waki, JJ.A.), in a single judgment of the court, dismissed a sentence-only appeal by Stephen Kibet Kirui against a ten-year imprisonment term imposed by the High Court of Kenya at Nakuru (M. Apondi, J.) on 3 December 2003. The appellant had been convicted on his own plea of guilty to manslaughter contrary to section 202 as read with section 205 of the Penal Code, the original murder charge having been reduced to the lesser charge upon the plea. The admitted facts were that on the evening of 5 February 2002, at Teret Village in Nakuru District, the appellant, armed with a spear, went to his wife's house, quarrelled with her and threw the spear at her, injuring both the wife and their one-year-old child; the child died from the injury. In this Court the appellant sought forgiveness, telling the Court that he suffered from tuberculosis. The Court held that the sentencing judge had already taken those facts into consideration, that the killing of a child of one year was uncalled-for behaviour, and that the ten-year term was neither harsh nor excessive in the circumstances, leaving no reason to interfere. The appeal was accordingly dismissed. There were no separate opinions, no authorities were cited, and no order as to costs was made. As a binding precedent, the decision stands for the principle that an appellate court will not disturb a sentence that is neither harsh nor excessive, particularly where the matters urged on appeal were before the sentencing court.

Key legal issues

Whether the Court of Appeal should interfere with a sentence where the matters urged in mitigation, including the appellant's ill health, were before and were taken into account by the sentencing court.

Holding

No. Facts already taken into consideration by the superior court at sentencing cannot ground appellate interference; the Court considered what the appellant told it but found no reason to disturb the ten-year term.

Reasoning

The appellant's plea for forgiveness rested on his suffering from T.B., a matter the Court observed was part of the facts taken into consideration by the superior court when it sentenced him. Since the sentencing judge had already weighed those circumstances, they could not avail the appellant as a new ground on appeal. The Court therefore declined to treat ill health or the plea for forgiveness as warranting any reduction of the ten-year term imposed on the guilty plea to manslaughter.

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Whether a ten-year imprisonment sentence for the manslaughter of the appellant's one-year-old child, imposed on a plea of guilty, was harsh or excessive.

Holding

It was not. The circumstances - killing his own child aged only one year - amounted to uncalled-for behaviour; the sentence was neither harsh nor excessive and the appeal was dismissed.

Reasoning

The Court weighed the gravity of the offence against the term imposed. The appellant, armed with a spear, went to his wife's house, quarrelled with her and threw the spear at her, injuring both the wife and the infant child, who died of the injury. Characterising the killing of a child of one year as uncalled-for behaviour, the Court concluded that the ten-year term was proportionate in the circumstances and that there was no basis for appellate interference with the sentence.

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Legal principles established

An appellate court will not interfere with a sentence that is neither harsh nor excessive in the circumstances of the case; where no reason to interfere exists, the appeal against sentence must be dismissed.
Mitigating matters that were before, and were taken into consideration by, the sentencing court cannot be urged on appeal as a fresh basis for reducing the sentence.

Court orders

1.The appeal against sentence is dismissed.

Authorities

Legislation

Penal Codesection 202
Penal Codesection 205

On appeal from: High Court of Kenya at Nakuru
Jurisdiction invoked: Not stated in the judgment; the matter reached the Court of Appeal as a criminal appeal against sentence only, the judgment recording that the appellant "now appeals to this Court but his appeal is against sentence only".

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Stephen Kibet Kirui v Republic [2005] KECA 118 (KLR)", Case Analysis (2005). Criminal Appeal 60 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/118/eng@2005-09-26

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