Kering v Republic (Criminal Appeal 6 of 2015) [2023] KECA 1098 (KLR)
The bottom line
#Kenya's Court of Appeal cut a 45-year murder sentence to 20 years because judges cannot impose parole conditions and must credit time spent in custody.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the sentence of 45 years imprisonment with a parole restriction adhered to the law and established jurisprudence
- 2.Whether the trial court took into consideration all relevant provisions and factors when sentencing, including the period spent in custody prior to sentencing
- 3.What sentence is appropriate in the circumstances
Key legal issues
#Legality of a sentencing court imposing a parole restriction
The trial Judge erred by invoking the concept of parole as applied in foreign jurisdictions; parole is a discretionary power of the Commissioner of Prisons under Section 49(1) of the Prisons Act and courts cannot usurp it. This alone warranted interference with the sentence.
Section 49(1) of the Prisons Act confers on the Commissioner of Prisons a discretion to release a prisoner on parole only within three months of the prisoner's due release date. By directing that the appellant be ineligible for parole until he had served twenty-five years, the trial court applied the concept as done in other jurisdictions, contrary to Kenyan law, thereby overreaching into an administrative power. The Court adopted the reasoning of Musyoka, J in Solomon Tabu Khalili v Republic that remission, parole and review of sentence are administrative matters for the Ministry of Interior.
Failure to take account of time spent in custody before sentencing
The trial Judge expressly directed that the sentence run from the date of conviction without accounting for the period spent in custody prior to sentencing, contrary to Section 333(2) and Section 137I(2)(a) of the Criminal Procedure Code, providing a further ground for interference.
Section 333(2) of the Criminal Procedure Code, in its proviso, requires that where a person sentenced was held in custody prior to the sentence, the sentence shall take account of the period spent in custody. Section 137I(2)(a) likewise lists the custody period as a sentencing factor. The sentencing notes showed the sentence was to run from the date of conviction, with no consideration of the approximately four months and six days spent in remand. This contravened the cited provisions as affirmed in Ahamad Abolfathi Mohammed & another v Republic.
Appellate deference to sentencing discretion
Sentencing is a matter for the trial court's discretion and an appellate court interferes only where the sentence is manifestly excessive, a material factor was overlooked, irrelevant factors were considered, or wrong legal principles were adopted.
The Court restated the principles in Bernard Kimani Gacheru v Republic: sentence rests in the discretion of the trial court and depends on the facts of each case. An appellate court will not interfere merely because it would itself have imposed a different sentence. Interference requires one of the established grounds. Here, the Court found two such grounds: the unlawful invocation of parole and the failure to credit time spent in custody, which together justified reassessing the sentence.
Determination of the appropriate sentence
Taking into account the mitigation, the appellant's remorse and offer of a plea bargain, the aggravating circumstance that a life was lost, and the four months and six days spent in remand, a sentence of 20 years imprisonment was appropriate.
The Court weighed the aggravating factor that the appellant fatally stabbed the deceased against his mitigation: immediate recognition of his mistake, remorse, an attempt to plead to a lesser charge, and status as a first offender. It noted the trial court's own view that the objectives of sentencing would have been achieved on release after 25 years. Factoring in the remand custody period, it substituted a 20-year term running from the date of conviction, expressly compliant with the proviso to Section 333(2).
Legal principles established
#- An appellate court will not interfere with sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle
- Courts have no jurisdiction over release on parole or remission of sentence; those powers are reposed in the Commissioner of Prisons under the Prisons Act, and a sentencing court cannot impose parole conditions
- Where an accused was held in custody prior to sentencing, the sentence must take account of the period spent in custody under the proviso to Section 333(2) of the Criminal Procedure Code
Court orders
#- 1.The appeal against sentence is allowed
- 2.The sentence imposed by the trial court is set aside and substituted with a sentence of 20 years imprisonment from the date of conviction by the trial court, being December 5, 2014
- 3.The new sentence has taken into account the period spent by the appellant in custody prior to conviction, in compliance with the proviso to Section 333(2) of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- First appellate jurisdiction over appeals on sentence; the appellant limited the appeal to sentence only
Relief refused
#Reversal of the trial court's finding that mitigation was not considered
The Court found no basis to agree that the learned Judge failed to take into consideration the mitigation put forth by the appellant
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our view, courts have no jurisdiction over the power of release on parole or remission of sentence as those are powers reposed on the Commissioner of Prisons by the Prisons Act.
On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
The upshot of the foregoing is that the appeal against sentence is hereby allowed. The sentence imposed by the trial court is hereby set aside and substituted with a sentence of 20 years imprisonment from the date of his conviction by the trial court, being December 5, 2014.
For avoidance of doubt, the new sentence imposed by this Court has taken into account the period spent by the appellant in custody prior to conviction and is thus compliant with the proviso to Section 333(2) of the Criminal Procedure Code.
Issues in the judgment
#The judgment does not state the appeal number or neutral citation, and the decision below is dated December 11, 2014 in the sentencing notes while the substituted sentence is stated to run from December 5, 2014, described as the date of conviction; the discrepancy is not explained in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kering v Republic (Criminal Appeal 6 of 2015) [2023] KECA 1098 (KLR)", Case Analysis (2023). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1098/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.