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Court of AppealPartially AllowedCriminal Appeal No. 19 of 2007· [2016] KECA 737 (KLR)

A M M & 2 others v Republic

Court of Appeal
4 March 2016
AVAlnashir VisramWKW. KaranjaGKG. B. M. Kariuki
1,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cut three manslaughter sentences because the judge used damaging probation reports without letting the accused respond first.

What this practically means

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Executive summary

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The three appellants, a mother, son and daughter, were originally charged with the murder of E M before the High Court at Machakos (Sitati, J). Following a plea bargain, the charge was reduced to manslaughter; they pleaded guilty, admitted the facts, and were convicted on plea. Unfavourable pre-sentencing reports from the probation officer, noting lack of remorse and community unwillingness to receive them back, led the learned Judge to sentence each appellant to twenty years imprisonment. The appellants appealed against sentence only, pursuant to Section 379(3) of the Criminal Procedure Code, and the State did not oppose the appeal. The Court of Appeal accepted that the offence was heinous and brutal and that the sentences would otherwise appear justifiable. However, it found that the appellants had not been given any opportunity to comment on, or where necessary cross-examine on, the damning pre-sentencing reports before those reports were relied upon in sentencing. Following its earlier decisions in Josephat Masaku Mutunga and Festus Ndalame Kilonzo, where sentences were reduced on the same ground, the Court held the procedural omission justified interference. It also took into account that the appellants had already served ten years, had reformed and were ready for rehabilitation. The Court allowed the appeals in part, reducing each appellant's sentence from twenty years to fifteen years imprisonment, running from 26th July, 2006. The judgment binds lower courts to afford accused persons an opportunity to respond to adverse material in pre-sentencing reports before reliance is placed on them.

Key legal issues

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01

Reliance on pre-sentencing reports without affording the accused an opportunity to respond

Holding

Reliance on unfavourable pre-sentencing reports without giving the accused a chance to comment on them or cross-examine the probation officer is a procedural error justifying appellate interference with sentence.

Reasoning

The Court observed the appellants were never given a chance to comment on the damning pre-sentencing reports, and that had they been accorded the opportunity, and possibly allowed to cross-examine the probation officer, a more lenient sentence might have been imposed. Following its prior decisions in Josephat Masaku Mutunga and Festus Ndalame Kilonzo, where sentences were reduced on the same ground, the Court held this omission warranted interference despite the gravity of the offence.

p. 2
02

Appellate interference with sentence on sentence-only appeal

Holding

Although the sentences were otherwise justifiable given the heinous and brutal circumstances and the appellants' lack of remorse, the procedural flaw and the ten years already served justified reducing the sentences to fifteen years.

Reasoning

The Court acknowledged the offence was heinous and brutal and that the sentences would appear justifiable on the facts, including the unfavourable probation reports. Balancing that against the denial of the opportunity to respond to the reports, and noting the appellants had already served ten years, reformed and were ready for rehabilitation, the Court reduced each sentence from twenty to fifteen years to run from 26th July 2006.

p. 3

Legal principles established

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  • An accused person must be given an opportunity to comment on adverse comments in a probation officer's pre-sentencing report, and where necessary to cross-examine the probation officer, before such a report can be relied upon for sentencing.

Court orders

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  1. 1.Appeals allowed
  2. 2.Sentences for all appellants reduced from twenty (20) years imprisonment to fifteen (15) years imprisonment
  3. 3.Sentences to run from 26th July, 2006
On appeal from
High Court of Kenya at Machakos
H.C.CR.A. No. 37 of 2006
Jurisdiction invoked
Section 379(3) Criminal Procedure Code (appeal against sentence)

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, "A M M & 2 others v Republic", Case Analysis (2016). Criminal Appeal No. 19 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/737/eng@2016-03-04

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