Nyamohanga v Republic [2023] KEHC 26405 (KLR)

Nyamohanga v Republic (Criminal Appeal E015 of 2022) [2023] KEHC 26405 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26405 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E015 of 2022

RPV Wendoh, J

December 14, 2023

Between

Joseph Mwita Nyamohanga

Appellant

and

Republic

Respondent

(From original conviction and sentence by Hon. L. N. Mesa – Principal Magistrate in Senior Principal Magistrate’s Court Kehancha Criminal Case NO. E 832 OF 2021 delivered on 14/7/2022)

Judgment

1. Joseph Mwita Nyamohanga was arraigned before Hon. Mesa, Senior Principal Magistrate Kehancha on a charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

2. The particulars of the charge are that on 29/6/2021, at Maeta Village, Kuria East Sub County, with another not before the court, killed Peter Mtongori Nyabogwe.

3. On 5/7/2021, he appeared before the magistrate and pleaded guilty to the charge and was sentenced to serve 15 years imprisonment on 14/7/2021.

4. The appellant is aggrieved by the sentence and filed this appeal on the following grounds:-1. That he pleaded guilty to the offence;2. That the sentence imposed in manifestly excessive in the circumstances;3. That he is remorseful and regrets his actions and prays for this court to be merciful considering that he is the only bread winner of his family;4. That he has reformed during his stay in prison having been trained in capacity and partly trade that will assist him after his release.

6. He therefore prays for a reduction of his sentence or any other order the court grant.

6. The prosecution counsel filed submissions and opposed the appeal but having read the said submissions, they do not relate to the appellant’s petition. The appellant only appeals against sentence but not conviction. I will ignore the said submissions.

7. Before sentencing the appellant, the trial court called for a probation officer’s report. However, it was not favourable to his release on non-custodial sentence.

8. The prosecution stated that the appellant is a first offender. However, in the probation officer’s report the appellant was portrayed in a very negative way; that he is involved in criminal activities, thefts, is antisocial and was suspected to have been involved in the murder of three people there before though there was no evidence to link him to the murders; that his own family were not willing to have him released on non-custodial sentence since emotions were still high and there were fears of revenge attacks.

9. The appellant claims to regret his actions, is remorseful and has now learnt some trades while in prison and prays for the court’s leniency. I also consider the fact that the deceased lost his life in a most cruel manner. I do take into account the fact that the appellant pleaded guilty to the offence and did not waste the court’s time. The appellant was said to be a young man of twenty one (21) years and in my view, he should be given another chance. For the above reasons, I hereby allow this appeal to the extent that I set aside the sentence of 15 years imprisonment and substitute it with a sentence of 12 years imprisonment. The sentence will take effect from 5/7/2021 when he took plea. The appeal succeeds to that extent.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 14TH DAY OF DECEMBER, 2023. R. WENDOHJUDGEIn presence of; -Mr. Kaino for the stateAppellant PresentEmma / Phelix –Court Assistant