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Court of AppealPartially AllowedCriminal Appeal No. 322 of 2018

Ruth Nasimiyu Barasa v Republic [2019] KECA 333 (KLR)

Court of Appeal of Kenya
7 October 2019
AMAsike MakhandiaKMK. M'InotiOTOtieno-Odek
2,595 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a mother's 15-year manslaughter sentence to five years because judges must consider children living with them in prison.

What this practically means

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Executive summary

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The appellant, Ruth Nasimiyu Barasa, was charged with the murder of Evaline Nafuna Manyasi following a fight over land on 15th March 2014 in Bungoma County. The deceased died on 29th March 2014 from head injuries sustained in the assault. The trial judge, sitting in the High Court at Bungoma on appeal, found no malice aforethought, convicted the appellant of the lesser offence of manslaughter, and sentenced her to 15 years' imprisonment. On first appeal to the Court of Appeal at Kisumu, the appellant abandoned the appeal against conviction and urged only the appeal against sentence, contending the 15-year term was harsh and excessive, particularly as her one-year-old twin children were incarcerated with her. The respondent, while defending the sentence, conceded that variation of the sentence was a matter for the court, citing the Muruatetu decision. The court reaffirmed the settled principle that sentencing is discretionary and appellate interference is warranted only where the sentence is manifestly excessive, a material factor was overlooked, wrong material was considered, or a wrong principle was applied. Drawing on comparative authority, including the South African Constitutional Court's decision in S v M on the sentencing of primary caregivers, the court held that the trial judge had overlooked the material factor of the detrimental impact of fifteen years of prison life on the innocent twin children. The court found the sentence harsh and excessive, set it aside, and substituted a term of five years' imprisonment effective from 9th November 2018, while affirming the conviction. The judgment was delivered unanimously by Makhandia, M'Inoti and Otieno-Odek JJA on 7th October 2019.

Key legal issues

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01

Interference with sentence on first appeal where the appellant has dependent twin children in prison with her

Holding

The trial judge erred by failing to sufficiently consider as a material factor the impact of 15 years of prison life on the appellant's twin children; the sentence was harsh and excessive and was reduced to five years.

Reasoning

Sentencing is discretionary and appellate interference is limited, but the court, re-evaluating the facts on a first appeal, found the judge overlooked the material factor of the detrimental effect of prolonged imprisonment on the innocent twin children. Balancing punishment against the children's best interests, and noting absence of malice aforethought, the court reduced the 15-year term to five years.

02

Appropriateness of conviction for manslaughter rather than murder

Holding

The trial judge correctly found no malice aforethought and correctly convicted the appellant of manslaughter.

Reasoning

Having re-evaluated the evidence and circumstances, the court agreed there was no malice aforethought capable of sustaining a murder conviction; the fight arose over land and the conviction for the lesser offence of manslaughter was proper. The conviction was accordingly affirmed, the appeal having been abandoned on that limb.

p. 3

Legal principles established

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  • An appellate court will not interfere with a trial court's sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.
  • In sentencing a mother who is the primary caregiver of minor children, a sentencing court must weigh the rights and best interests of the child against the seriousness of the offence.

Court orders

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  1. 1.Conviction of the appellant is affirmed and upheld
  2. 2.15-year term of imprisonment set aside and substituted with imprisonment for a term of five (5) years with effect from 9th November 2018
On appeal from
High Court of Kenya at Bungoma
H C Cr. Appeal No. 18 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal against conviction and sentence on a charge of murder (appeal against judgment of the High Court on appeal from the trial court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ruth Nasimiyu Barasa v Republic [2019] KECA 333 (KLR)", Case Analysis (2019). Criminal Appeal No. 322 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/333/eng@2019-10-07

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