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Court of AppealPartially AllowedCriminal Appeal 78 of 2009

Kibor v Republic (Criminal Appeal 78 of 2009) [2009] KECA 143 (KLR)

Court of Appeal of Kenya
25 September 2009
EOE. O. O'KubasuEGE. M. GithinjiDAD. K. S. Aganyanya
1,372 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man held nearly ten years before sentencing, ruling that time spent in custody must be counted against any prison sentence.

What this practically means

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Executive summary

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The appellant, Bethwel Wilson Kibor, was charged with the murder of Benjamin Kipkosgei allegedly committed on 18th July 1999 at Sinoko Farm, Cherangani. His trial before the High Court at Kitale was plagued by successive changes of trial judge: it commenced before Omondi Tunya J, who heard the prosecution case and ruled there was a case to answer, but had to start afresh before Dulu J and then Gacheche J, before being heard de novo by W. Karanja J from July 2004. Karanja J found the appellant and the deceased had fought, with no malice aforethought, and invoking section 179(2) of the Criminal Procedure Code convicted him of the lesser cognate charge of manslaughter. Ombija J, reading the judgment, sentenced him to five years imprisonment. Before the Court of Appeal at Eldoret the appellant abandoned the appeal against conviction and pursued only the appeal against sentence. Applying the first-appeal duty restated in Okeno v R, the Court found the conviction on the lesser charge was open to the trial judge. On sentence, the Court held that under the proviso to section 333(2) of the Criminal Procedure Code the sentencing judge was required to take into account the approximately nine to ten years the appellant had spent in custody, largely attributable to adjournments caused by transfers of judges and for which he bore no fault, and that the sentencing judge had not stated he had done so. The Court allowed the appeal against sentence, reduced the sentence to the period already served, and ordered the appellant set at liberty forthwith unless otherwise lawfully held. The decision was delivered by O'Kubasu, Githinji and Aganyanya JJA on 25th September 2009.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal against conviction, having been abandoned, should be dismissed
  2. 2.Whether the sentence of 5 years imprisonment was excessive given the appellant's prolonged pre-sentence custody of about ten years

Key legal issues

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01

Duty of a first appellate court on appeal against conviction

Holding

Even though the appeal against conviction was abandoned, the Court re-evaluated the evidence and found the High Court entitled to convict on the lesser cognate offence of manslaughter under section 179(2) of the Criminal Procedure Code.

Reasoning

A first appellate court must re-evaluate the evidence as stated in Okeno v R. The trial judge found a fight with the deceased without malice aforethought, disclosing manslaughter rather than murder. The appellant raised no defence of intoxication or self-defence on appeal, so the conviction on the lesser cognate charge could not be faulted.

p. 2
02

Sentencing where the accused has been in prolonged pre-sentence custody

Holding

The sentencing judge's failure to account for the roughly nine to ten years the appellant had spent in custody rendered the 5-year sentence excessive; the Court reduced the sentence to time served.

Reasoning

The incident occurred in 1999 and the appellant was promptly arrested, but repeated adjournments caused by transfers and changes of trial judges, culminating in trials de novo, meant he remained in custody for no fault of his own. The proviso to section 333(2) of the Criminal Procedure Code required the sentence to account for that period, and the sentencing judge had not stated he had done so.

p. 3

Legal principles established

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  • On a first appeal the Court of Appeal must re-evaluate the evidence and make its own findings.
  • Where an accused person has been held in custody prior to sentencing, the sentence imposed must take account of the period spent in custody under the proviso to section 333(2) of the Criminal Procedure Code, and a sentencing court should expressly state that it has done so.

Court orders

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  1. 1.The appeal against sentence was allowed
  2. 2.The sentence of 5 years imprisonment was reduced to the period already served by the appellant
  3. 3.The appellant was to be set at liberty forthwith unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority
EG
majority
DA
majority
On appeal from
High Court of Kenya at Kitale
H.C.Cr.C. No. 2 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence from a High Court murder trial, under the Court of Appeal's appellate criminal jurisdiction

Relief refused

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Appeal against conviction

Abandoned by the appellant at the hearing; the Court nonetheless reviewed the evidence as a first appeal and found the conviction on the lesser cognate charge justified

p. 2

Costs

No costs order recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.
p. 3Pre-sentence custody must be credited against sentence
We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.
p. 3Final orders - reduction of sentence to time served

Issues in the judgment

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minor

The judgment states the trial judge convicted under section 202 as read with section 205 of the 'Criminal Procedure Code', but sections 202 and 205 create and punish manslaughter in the Penal Code; the Code reference appears to be an error.

minor

The heading dates the High Court conviction and sentence 16th October 2008, but the judgment states judgment was read on 16th November 2008.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kibor v Republic (Criminal Appeal 78 of 2009) [2009] KECA 143 (KLR)", Case Analysis (2009). Criminal Appeal 78 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/143/eng@2009-09-25

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