Brigit Kanana v Republic

stated, the accused person had a fight with the deceased wherein the deceased got injured and thereafter succumbed to his injuries. It was urged that the fight between the accused person and the deceased was as a result of unpaid beer. As such, the accused person’s reaction was spontaneous. Taking into account the circumstances under which the offence was committed, it would be difficult to find malice aforethought”. [3] Upon conviction, the appellant was sentenced to serve a prison term of 15 years, a sentence she challenges as harsh and excessive; made in disregard of a pre-sentence report presented to Court; reached in spite of the mitigation offered and; aimed at achieving deterrence only while disregarding other objectives of sentencing such as rehabilitation and reintegration. [4] Arguing through written submissions dated 13 th August 2025 and highlighted at plenary hearing, the appellant’s counsel Ms. Kioko contended that the it was the deceased who was the aggressor and the death was as a result of anger at the heat of the moment. Further, both were intoxicated. While the trial Court took these factors into account in reducing the charge from murder to manslaughter, it disregarded them at sentencing. This Court’s decision in Nelson Mbakaya v Republic [2016] eKLR was cited. Page 2 of Ambani

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[5] A pre-sentence report, pursuant to section 329 of the Criminal Procedure Code (the Code), was presented to the trial Court on 29th of November 2024. It was argued for the appellant that while such a report is not binding, Policy Direction 4.1.3.5 of the Revised Sentencing Policy Guidelines 2023, encourages trial courts to find guide in such reports and where it departs to give reasons for doing so. The trial Court was faulted for ignoring the recommendations in the report and also for failing to give cogent reasons for departing. [6] Regarding the objective of the sentence, it was reiterated that the trial Court only paid heed to deterrence, disregarding all others. [7] In urging us to dismiss the appeal, Ms. Njoki Keng’aara learned Principal Prosecution Counsel emphasized that there existed aggravating circumstances which supported the sentence meted. These are that; a dangerous weapon was used in the commission of the offence; the attack was directed at a part of the body that hosts crucial bodily organs; the appellant attempted to run away from the scene after committing the offence; it was a vicious attack not in selfdefence or in defence of the appellant’s property; there was no apology by the appellant to the family of the Page 3 of

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deceased and; the appellant had not offered any reparations to the family of the deceased. [8] This first appeal is against sentence only. Our task is to examine that sentence, in the context of the challenge raised, on the basis of the material that was before the trial Court. In this remit we shall reevaluate the material with a view to drawing our own conclusions mindful that in regard to some of it we do not have the firsthand advantage enjoyed by the trial Court. [9] A second observation is that the legality of the sentence is not questioned, rather its supposed severity. In this regard it is old learning that an appellate court will not easily interfere with sentence unless it is manifestly high or low in the circumstances or the trial Court has overlooked some material factors or taken into account some wrong principles. It is not enough that the appellant court could have itself not have passed the sentence. (See for example Bernard Kimani Gacheru vs Republic [2002] eKLR). [10] By dint of power donated by section 329 of the Code, a sentencing court may avail itself of information that will assist it in arriving at a proper sentence to be passed. Where the offence results in death or actually bodily harm to a person, Page 4 of

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the court may call for Page 5 of

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Victim Impact Statements under Part IXA of the Code. Where the sentencing court requests for such information then it must assess and consider it. It need not be a detailed assessment or evaluation but it must be demonstrable that the court has given the information more than superficial reflection. Where it accepts or rejects any recommendations or information, then the court must give reasons for doing so. The calling for and receipt of information to guide on appropriate sentence must not be a notional or ticking the box exercise. It is intended to enrich the sentencing process and assist in arriving at a just and fair sentence to both the convict and the victim, and one which is defendable to the public at large. [11] In this instance, the trial Court called for and received a presentence report. And while the report was not part of the record before us, drawing from it the trial Court noted that the appellant was a single mother, a sole breadwinner and remorseful. It recommended a non-custodial sentence. [12] In mitigation, she repeated her remorse and stated that she had stopped taking alcohol. In retort, the prosecution criticized the pre-sentence report for management and Page 6 of not addressing anger

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proposed a custodial sentence as a life had been lost and the children of the victim were suffering. [13] In disregarding the recommendation for non-custodial sentence, the trial Court observed; “However, the offence committed is serious. Somebody lost life due to non-payment of a beer bill of 350/=. The accused over reacted in the circumstances. A deterrent sentence is necessary”. [14] It is clear to us that the trial Court lay emphasis on deterrence even after expressly acknowledging that they are other sentencing objectives such as rehabilitation, reconciliation and reintegration. These, in our view, should have been given some weight as the trial Court had observed, in no less than in the judgment, that there was a scuffle over an unpaid bill which led to the spontaneous stabbing by the appellant. There was, in addition, the remorse by the appellant and express recommendation in the report for a non-custodial sentence. In the face of all these, and while not doubting that a custodial sentence is deserved, the sentence of 15 years is off the ballpark and excessive. It calls for our interference. [15] Ultimately, we allow the appeal. The sentence of 15 years imprisonment is hereby set aside and in its place the appellant is Page 7 of

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sentenced to serve 7 years imprisonment from the date of conviction. Any period spent by the appellant in remand custody shall be discounted from the period to be served as commanded by section 333(2) of the Code. It is so ordered. Dated and delivered at Nairobi this 25th day of September 2026. F. TUIYOTT ………………………….. JUDGE OF APPEAL NDUMA NDERI ………………………….. JUDGE OF APPEAL MUNYAO SILA ………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 8 of

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