Charles Kimutai Koech v Republic [2022] KEHC 1641 (KLR)

HIGH COURT OF KENYA

AT KERICHO

CRIMINAL APPEAL NO. E 020 OF 2020

CHARLES KIMUTAI KOECH...................................................................APPELLANT

VERSUS

REPUBLIC..................................................................................................RESPONDENT

(Being an appeal from the sentence of 10 years imprisonment

by Hon. J. Ndururi (PM)in Kericho CMCC No.2753 of 2016

delivered on 15/8/2016)

JUDGMENT

1.  The Appellant CHARLES KIMUTAI KOECH was charged with four (4) others with the offence of preparation to commit a felony Contrary to Section 308 (1) of the Penal Code.

2.  The Appellant and the four (4) Co-Accused pleaded guilty to the charge and they were each sentenced to ten (10) years imprisonment.

3.  They appealed against the sentence but the appeal was summarily dismissed.

4.  The Appellants appealed to the Court of Appeal against the summarily dismissal order and the dismissal order was set aside.

5.  This Court allowed an appeal by ROBERT ONKOBA and reduced his sentence to the period served from 15/8/2016 to 22/3/2021 when the Judgment was delivered by this Court.

6.   I have considered the submissions by the appellant herein Charles Kimutai Koech and I find that they are similar to those submitted by his Co-Appellant.

7.  The Appellant was joined in this appeal by Gilbert Kiruiand Kelvin  Kiptoo who were jointly charged with the Appellant herein and Robert Onkoba who was discharged by this Court on 22/3/2021.

8.  The Law requires that parties be treated equally before the law, article 27 (1) of the Constitution of Kenya, 2010 states as follows: "Every person is equal before the law and has the right to equal protection and equal benefit of the law."

9. In the celebrated case of REPUBLIC VS. THOMAS PATRICK GILBERT CHOLMONDELEY [2009] eKLRthe court took cognizance of the principles in sentencing to wit "(a) Principle of Proportionality-                                                               This principle requires that the sentence imposed should reflect the seriousness of the offence and (b)   Principle of Equality before the law -The said principle requires that sentencing decisions should treat offenders equally, irrespective of their wealth, race, their colour, sex, employment or family status."(Emphasis added)

10.  I have considered the fact that the Appellant pleaded guilty to the charge and saved the Court’s time for conducting the trial.

11.  I also find that the period the Appellant has been in custody is sufficient to teach him a vital lesson that crime does not pay.

12.  The High Court is clothed with powers conferred to it as a court of appeal, that is to  wit, the power to increase, reduce or alter the nature of a sentence vide section 354 3 (b) of the Criminal Procedure Code which states as follows;

Powers of the High Court

…. "(b)in an appeal against sentence, to increase or reduce the sentence or alter the nature of the sentence"

13.  I accordingly reduce his sentence to the period already served and I accordingly order that the Appellant be set free forthwith unless lawfully held for any other reason.

14.  This order to apply to Gilbert Kirui and Kelvin  Kiptoo who were jointly charged with the Appellant herein.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 4TH DAY OF MARCH, 2022.

A. N. ONGERI

JUDGE