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Court of AppealPartially AllowedCriminal Appeal 363 of 2009

Jacob Kirimu Kabiru v Republic

Court of Appeal of Kenya
4 November 2010
SBS.E.O. BosireEGE. M. GithinjiJNJ. G. Nyamu
1,233 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a plea-bargain sentence by one year because the judge never considered a victim impact statement before sentencing.

What this practically means

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Executive summary

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The appellant, convicted of manslaughter on his own plea following a plea bargaining agreement that reduced a murder charge, was sentenced by the High Court at Nyeri (Makhandia, J.) to ten years' imprisonment. He appealed in person, contending that having pleaded guilty to the lesser charge and saved the court's time, he deserved a non-custodial sentence or a reduction in line with his mitigation, which included remorse, the absence of premeditation, and his family relationship with the deceased, his brother-in-law. The State, through Senior Principal State Counsel Mr. Kaigai, supported the sentence as merited. The Court of Appeal (Bosire, Githinji and Nyamu, JJ.A.) noted that under section 137L(1) of the Criminal Procedure Code, no appeal lies from a sentence passed under a plea agreement except as to its extent or legality, a restriction aimed at finality and speed. However, the court found that the superior court had failed to consider the mandatory provisions of section 137I(2), particularly the requirement to take into account a victim impact statement, and had not addressed sections 137A to N and 329C. Given the appellant's stated willingness to assist the deceased's dependants, the court held this omission bore on the severity of the sentence. The appeal was allowed and the sentence reduced from ten to nine years, running from 16th December 2009. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the ten-year sentence imposed following a plea bargaining agreement was excessive
  2. 2.Whether the superior court complied with sections 137A to N and 329C of the Criminal Procedure Code, including consideration of a victim impact statement

Key legal issues

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01

Scope of appeal against sentence under a plea bargaining agreement

Holding

Appeal lies only as to the extent or legality of the sentence; the restricted right of appeal serves finality and speed

Reasoning

Section 137L(1) of the Criminal Procedure Code makes a sentence passed under a plea agreement final, permitting appeal only on severity or legality. The court held the restriction is designed to speed up the process and attain finality early, but entertained this appeal as one on the severity of sentence.

p. 2
02

Mandatory consideration of victim impact statement under section 137I(2)

Holding

The superior court failed to consider the mandatory provisions, including a victim impact statement, warranting a reduction of sentence

Reasoning

The court found the superior court did not address sections 137A to N and 329C, particularly the need to take into account a victim impact statement. Given the appellant's offer to assist the deceased's dependants, this omission bore on severity, justifying reduction by one year.

p. 2

Legal principles established

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  • No appeal lies from a sentence passed under a plea bargaining agreement except as to the extent or legality of the sentence
  • In passing sentence after a plea agreement, the court must take into account a victim impact statement among other mandatory factors

Court orders

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  1. 1.Appeal allowed
  2. 2.Sentence reduced from ten (10) years to nine (9) years to run from 16th December 2009

The bench

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

SB
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Nyeri
H.C.CR.C. NO. 63 OF 2008
Jurisdiction invoked
Section 137L(1) of the Criminal Procedure Code - appeal limited to extent or legality of sentence

Relief refused

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Non-custodial sentence

Court opted instead to reduce the custodial sentence by one year

Costs

No costs order made

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.

In the result we allow the appeal and order that the sentence be and is hereby reduced from ten (10) years to nine (9) years to run from 16th December 2009. It is so ordered.
p. 2Final orders - sentence reduced
The effect of the above provision is that no appeal lies to this Court from the sentencing court which in this case was the superior court except on severity or legality of the sentence.
p. 2Restricted appeal under plea bargaining
We are concerned that the superior court is not on record as having addressed the provisions of both sections 137A to N and 329 (c) of the Criminal Procedure Code.
p. 2Sentencing court's duty on plea agreements

Issues in the judgment

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minor

Judgment cites 'section 329 (c)' in one passage and 'section 329C' in another, apparently the same provision

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, "Jacob Kirimu Kabiru v Republic", Case Analysis (2010). Criminal Appeal 363 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/510/eng@2010-11-04

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