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Court of AppealDismissedCriminal Appeal 28 of 2007· [2009] KECA 156 (KLR)

Joseph Njoroge Lemiso v Republic

Court of Appeal of Kenya
2 October 2009
SBS.E.O. BosirePWP.N. WakiAVAlnashir Visram
1,140 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a 7-year manslaughter sentence was lawful, stressing courts must weigh the harm done to victims when sentencing.

What this practically means

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Executive summary

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The appellant was charged with the murder of a waiter following a dispute over payment for tea, in the course of which he stabbed the deceased twice with a knife and stamped on his body. He offered to plead to a lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code, and on 17th January 2007 pleaded guilty unequivocally, accepting the prosecution facts. The High Court at Nakuru (Kimaru, J.), after considering mitigation including his status as a first offender, his remorse and his family responsibilities, sentenced him to 7 years imprisonment. The appellant, in person, appealed against sentence only, contending it was excessive and invoking his remorse and dependants, and in submissions asked the Court to consider Luke Chapter 17 verses 1-5 on forgiveness. The Court of Appeal declined to engage in theological discourse, noting that at the temporal level courts enforce the law of the land. It held that the maximum penalty for manslaughter is life imprisonment, that all mitigating factors had been considered by the trial court, and that the aggravating circumstances - use of a weapon to lethal effect on an unarmed deceased in a situation the appellant provoked, and stamping on the body - justified the sentence. The Court also emphasised that following the insertion of Part IXA in the Criminal Procedure Code by Act No. 5 of 2003, courts must have regard to the consequences of a crime on the victim and the victim's family when sentencing. The appeal was dismissed in its entirety and the 7-year sentence left undisturbed.

Key legal issues

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01

Whether the 7-year sentence for manslaughter was excessive

Holding

The sentence was lawful and not excessive; the Court declined to interfere with it.

Reasoning

The appellant pleaded guilty to manslaughter carrying a maximum of life imprisonment. All mitigating factors (first offender, remorse, dependants) had been considered by the trial court. The aggravating factors were the use of a knife to lethal effect on an unarmed deceased in a situation the appellant himself provoked, stamping on the body, and the needless death of a healthy 23-year-old. Parliament's insertion of Part IXA in the Criminal Procedure Code obliges courts to consider victims' interests when sentencing.

p. 2

Legal principles established

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  • On a first appeal against sentence, the Court is entitled to consider both the legality and the severity of the sentence.
  • Courts must, when sentencing, have regard to the consequences of the crime on the victim or the victim's immediate family, by virtue of Part IXA of the Criminal Procedure Code.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Sentence of 7 years imprisonment imposed by the High Court left undisturbed
On appeal from
High Court of Kenya at Nakuru
H.C. CR. C. NO. 55 OF 2006
Jurisdiction invoked
First appeal against sentence under the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Njoroge Lemiso v Republic", Case Analysis (2009). Criminal Appeal 28 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/156/eng@2009-10-02

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