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Court of AppealPartially AllowedCriminal Appeal No. 19 of 2007

A M M & 2 others v Republic [2016] KECA 737 (KLR)

Court of Appeal
4 March 2016
AVAlnashir VisramWKW. KaranjaGKG. B. M. Kariuki
1,171 words in judgment
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The bottom line

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Kenya's Court of Appeal cut three manslaughter sentences because the judge used damaging probation reports without letting the accused respond first.

What this practically means

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Executive summary

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The three appellants, a mother, son and daughter, were originally charged with the murder of E M before the High Court at Machakos (Sitati, J). Following a plea bargain, the charge was reduced to manslaughter; they pleaded guilty, admitted the facts, and were convicted on plea. Unfavourable pre-sentencing reports from the probation officer, noting lack of remorse and community unwillingness to receive them back, led the learned Judge to sentence each appellant to twenty years imprisonment. The appellants appealed against sentence only, pursuant to Section 379(3) of the Criminal Procedure Code, and the State did not oppose the appeal. The Court of Appeal accepted that the offence was heinous and brutal and that the sentences would otherwise appear justifiable. However, it found that the appellants had not been given any opportunity to comment on, or where necessary cross-examine on, the damning pre-sentencing reports before those reports were relied upon in sentencing. Following its earlier decisions in Josephat Masaku Mutunga and Festus Ndalame Kilonzo, where sentences were reduced on the same ground, the Court held the procedural omission justified interference. It also took into account that the appellants had already served ten years, had reformed and were ready for rehabilitation. The Court allowed the appeals in part, reducing each appellant's sentence from twenty years to fifteen years imprisonment, running from 26th July, 2006. The judgment binds lower courts to afford accused persons an opportunity to respond to adverse material in pre-sentencing reports before reliance is placed on them.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in relying on unfavourable pre-sentencing reports without giving the appellants an opportunity to comment on or challenge their contents
  2. 2.Whether the Court should interfere with the sentences of twenty years imprisonment imposed on each appellant

Key legal issues

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01

Reliance on pre-sentencing reports without affording the accused an opportunity to respond

Holding

Reliance on unfavourable pre-sentencing reports without giving the accused a chance to comment on them or cross-examine the probation officer is a procedural error justifying appellate interference with sentence.

Reasoning

The Court observed the appellants were never given a chance to comment on the damning pre-sentencing reports, and that had they been accorded the opportunity, and possibly allowed to cross-examine the probation officer, a more lenient sentence might have been imposed. Following its prior decisions in Josephat Masaku Mutunga and Festus Ndalame Kilonzo, where sentences were reduced on the same ground, the Court held this omission warranted interference despite the gravity of the offence.

p. 2
02

Appellate interference with sentence on sentence-only appeal

Holding

Although the sentences were otherwise justifiable given the heinous and brutal circumstances and the appellants' lack of remorse, the procedural flaw and the ten years already served justified reducing the sentences to fifteen years.

Reasoning

The Court acknowledged the offence was heinous and brutal and that the sentences would appear justifiable on the facts, including the unfavourable probation reports. Balancing that against the denial of the opportunity to respond to the reports, and noting the appellants had already served ten years, reformed and were ready for rehabilitation, the Court reduced each sentence from twenty to fifteen years to run from 26th July 2006.

p. 3

Legal principles established

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  • An accused person must be given an opportunity to comment on adverse comments in a probation officer's pre-sentencing report, and where necessary to cross-examine the probation officer, before such a report can be relied upon for sentencing.

Court orders

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  1. 1.Appeals allowed
  2. 2.Sentences for all appellants reduced from twenty (20) years imprisonment to fifteen (15) years imprisonment
  3. 3.Sentences to run from 26th July, 2006

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
GK
majority
On appeal from
High Court of Kenya at Machakos
H.C.CR.A. No. 37 of 2006
Jurisdiction invoked
Section 379(3) Criminal Procedure Code (appeal against sentence)

Relief refused

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Outright release/acquittal sought by appellants in oral plea for leniency

Court held the circumstances of the offence called for a serious sentence; only the procedural flaw in reliance on the pre-sentencing reports justified interference with sentence

p. 3

Costs

No order as to costs recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We observe from the record however, that the appellants were not given a chance to comment on the damning pre-sentencing reports.
p. 2Natural justice in sentencing - right to respond to pre-sentencing reports
This Court has pronounced itself before on the need for any adverse comments made in a probation officer’s report to be brought to the attention of the accused, and for him/her to be given an opportunity to comment on the same before such a report can be relied upon.
p. 2Binding rule on use of probation officer's reports
In the circumstances, we allow the appeals with the result that we reduce the sentences for all appellants from the twenty (20) years imprisonment imposed by the learned Judge to fifteen (15) years imprisonment, which sentences will run from 26th July, 2006.
p. 3Final orders - reduction of sentence

Issues in the judgment

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minor

Internal date contradiction in the statement of facts: the first fight is dated 21st April, 2016 whereas the charge and the rest of the judgment place the events in April 2006.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "A M M & 2 others v Republic [2016] KECA 737 (KLR)", Case Analysis (2016). Criminal Appeal No. 19 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/737/eng@2016-03-04

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