Mbeche v Republic [2024] KEHC 5686 (KLR)

Mbeche v Republic (Criminal Petition E005 of 2022) [2024] KEHC 5686 (KLR) (20 May 2024) (Judgment)

Neutral citation: [2024] KEHC 5686 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Petition E005 of 2022

F Gikonyo, J

May 20, 2024

Between

Amos Maengwe Mbeche

Petitioner

and

Republic

Respondent

Judgment

1. Before the court is an undated application for sentence review. The petitioner is seeking for reduction of his sentence. The application is based on the grounds that the is harsh considering the petitioner’s health, he has reformed and is ready to be reintegrated back into society.

2. The application is expressed to be brought under section 4(1) and (2) of the Probation of Offenders Act and section 333(2) of the CPC and the judiciary sentencing policy guidelines.

Brief background of this case 3. The petitioner was charged with Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The petitioner was found culpable and convicted by the trial court and sentenced to 10 years imprisonment.

4. The petitioner being dissatisfied with the sentence has filed the petition herein.

Directions of the court 5. The petition was canvassed by way of written submission. The petitioner has filed. The prosecution has not filed.

The Petitioner’s submissions. 6. The petitioner submitted that there were no aggravating factors to compel the trial court to impose the 10 years imprisonment on him.

7. The petitioner submitted that the trial court did not consider the fact that he was a first offender, pleaded guilty, and his mitigation of being remorseful and pledging not to commit the same offence. The petitioner argued that the offence was committed accidentally and that he has been traumatized by the incident as the victim was his daughter. The petitioner relied on the case of Felix Nthiwa Munyao Vs R Nairobi Court of Appeal Criminal Appeal No. 187 of 2000

8. The petitioner submitted that the sentence imposed upon him is excessive in light of the minimum sentence prescribed by the law. The petitioner further submitted that there are set out circumstances under which an appellate court interferes with the sentence the petitioner relied on the cases of S Vs Malgas 2001 (1) SACR 469 (SCA), Mokela Vs the State (135/11) [2011] ZASCA 166, Ogolla s/o Owuor Vs Republic [1954] EACA 270, Benard Kimani Gacheru Vs Republic [200] eKLR, Francis Karioko Muruatetu & Another Vs Republic, and Republic v Daniel Okello Rapuch [2017] eKLR.

ANALYSIS AND DETERMINATIONIssue 9. Is the sentence herein harsh or excessive in the circumstances of this case?

10. Currently, ‘mandatory or minimum sentence’ seems to be a wonderful or magic word or expression to use in any application for review of sentence when one wants to blur the real purport of a particular penalty clause or to avoid court’s clarity of thought on sentences. Care should be taken not to fall for such decoy or red herring. The applicant attempted to introduce the notion of mandatory or minimum sentence in this matter which concerns Section 205 of the Penal Code.

11. Having said that, the petitioner submitted that the trial court did not consider the fact that he was a first offender, pleaded guilty, and was remorseful and pledged not to commit the same offence. The petitioner argued that the offence was committed accidentally and the petitioner has been traumatized as the victim was his daughter.

12. Although the accused stated that the offence was committed accidentally, the circumstances of the commission of the offence are around gender-based or family-based violence. Upon consideration of all the mitigating factors stated by the petitioner as well as aggravating factors which includes the seriousness of the offence and the fact that the offence may attract a sentence of life imprisonment, a sentence of 10 years is not excessive. However, for purposes of section 333(2) of the CPC, the sentence will commence from 12. 10. 2021 when he was first arraigned in court.

13. Right of appeal explained.

14. Orders accordingly.

Dated, Signed, and Delivered at Narok Through Microsoft Teams Online Application This 20TH Day of May, 2024. ………………………………...F. Gikonyo MJudgeIn the presence of: -AppellantOkeyo for DPPOtolo C/AKILGORIS HC CR PET. NO. E005 OF 2022Page 2 of 2