Case ID:186063

Mesheck Wekesa v Republic [2021] eKLR

Case Metadata

Case Number:

Criminal Appeal 183 of 2019

Parties:

Mesheck Wekesa alias Raphael Arufani v Republic

Date Delivered:

05 Nov 2021

Case Class:

Criminal

Court:

High Court at Bungoma

Case Action:

Judgment

Judge(s):

Lilian Nabwire Mutende

Citation:

Mesheck Wekesa v Republic [2021] eKLR

Case History:

(Appeal against the original Sentence in Criminal Case No. 422 of 2019 at the Chief Magistrates Court Bungoma by Hon. J. Kingori – CM on 13/11/2019)

Court Division:

Criminal

County:

Bungoma

History Docket No:

Criminal Case 422 of 2019

History Magistrate:

Hon. J. Kingori – CM

History County:

Bungoma

Case Outcome:

Appeal dismissed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL NO. 183 OF 2019

MESHECK WEKESA alias RAPHAEL ARUFANI.....APPELLANT

VERSUS

REPUBLIC..................................................................RESPONDENT

(

Appeal against the

original Sentence in Criminal Case No. 422

of 2019 at the Chief Magistrates Court Bungoma by

Hon. J. Kingori – CM on 13/11/2019)

J U D G M E N T

1.

Meshack Wekesa

alias

Raphael Arufani

jointly with another were charged with the offence of robbery with violence contrary to

Section 295

as read with

Section 296 (2)

of the Penal Code.

2.

Particulars of the offence were that on the 22

nd

March 2019 at around 2100hrs at Bulondo, Bungoma South Sub-county, Bungoma County, jointly with others not before court robbed

Juliah Saina Wabwire

of Kshs 6,500/- cash, and at the time of such robbery used actual violence to the said

Juliah Saina Wabwire.

3. In a nutshell, evidence adduced was that the complainant was at home with her children preparing supper when the appellant, a person well known to her with others invaded her house, demanded for money, assaulted her and stole from her Kshs 6500/- then dragged her outside the house before disappearing into a sugar plantation. The matter was reported to the local Administrators then the Police. Investigations were conducted and the appellant was arrested and charged.

4. Upon being placed on his defence the appellant denied having committed the offence and claimed to have been the complaint’s man friend. That he opened a business (shop) for her and continued to support her.

5. The trial court considered evidence adduced, returned a verdict of guilty, convicted and sentenced the appellant to serve eight (8) years imprisonment.

6. Aggrieved, the appellant appeals against the sentence which he terms harsh and excessive.

7. He canvassed the appeal through written submissions. He urged that the sentence was harsh and pleaded with the court to be lenient and grant him the opportunity of serving the remaining term under probation supervision or any other non-custodial sentence.

8. The Respondent opposed the appeal. It urged that the court considered mitigating factors put forward by the appellant and was of the view that his reputation with villagers was not good, he was not remorseful, and, that all essentials of robbery with violence having been established he ought to have been sentenced to death, therefore, he was lucky to be sentenced to eight (8) years imprisonment.

9. This being a first appellate court, I must reconsider afresh what transpired at trial and reach my own conclusions.

10. An appellate court can only interfere with a sentence meted out

by a lower court if it is excessive or if the court acted on wrong principles. In the case of

Bernard Kimani Gacheru Vs. Republic (2002) eKLR

the Court of Appeal stated that:

“On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle.”

11.

Section 296 (2)

of the Penal Code provides that:

If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death

12. Ingredients of the offence as provided by statute were

proved in the instant case. In passing the sentence, the trial court took into account not only the appellant’s mitigation but the gravity of the offence and the violence used during the act of robbery. Although the offence committed was punishable by death, when the sentence was passed, according to the principle that had been set by the case of

Muruatetu vs. Republic (2017) eKLR,

the trial court was deemed to have discretion in meting out sentences. In the stated case the constitutionality of death penalty was questioned and found to be unconstitutional. I must however point out that

Muruatetu & Another vs. Republic and Others (2021) eKLR

gave clarification that the principle declaring the mandatory death sentence unconstitutional was only applicable to murder cases.

13. There was however no cross appeal by the Respondent

for enhancement of sentence or a notice to that effect that

would have prompted this court to act accordingly. (Also see

Sammy Omboke & another vs. Republic (2019) eKLR)

14. The upshot of the above is that the sentence of eight (8)

years imprisonment meted out was neither harsh nor

excessive, therefore, the appeal lacks merit, accordingly,

it is dismissed.

15. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY,

THIS 5

TH

DAY OF NOVEMBER, 2021.

L. N. MUTENDE

JUDGE

IN THE PRESENCE OF:

Appellant

ODPP –Mr. Ayekha

Court Assistant - Esther