[2019] KEHC 5292 (KLR)
The court held that, in light of Article 159(2)(c) of the Constitution, which mandates the promotion of alternative dispute resolution mechanisms, and considering the private nature of the offence, the complainant's forgiveness, the absence of objection from the prosecution, and the appellant's substantial service...
Source-derived case information.
- Citation
- [2019] KEHC 5292 (KLR)
- Parties
- Appellant: Adam Amdany; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 53 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence reduced to time served; appellant released from custody
- Judges
- EM Muriithi
- Legal Topics
- Assault, Sentence Reduction, Reconciliation, Restorative Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adam Amdany
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether reconciliation between the complainant and appellant justifies reduction of sentence in a criminal matter.
- 2 Whether the appellant should be released based on time already served and the complainant's forgiveness.
Ratio Decidendi
The court held that, in light of Article 159(2)(c) of the Constitution, which mandates the promotion of alternative dispute resolution mechanisms, and considering the private nature of the offence, the complainant's forgiveness, the absence of objection from the prosecution, and the appellant's substantial service of the custodial sentence, it was just to reduce the sentence to the period already served. The court further noted that the appellant had also fully served a prior consecutive sentence for escape from lawful custody. Consequently, the appellant was to be released from custody unless otherwise lawfully held, as the objectives of justice and reconciliation had been met in this case.
Court Disposition
appeal allowed in part; sentence reduced to time served; appellant released from custody
Orders
- The appellant's sentence is reduced to the period already served; he shall be released from custody unless otherwise lawfully held.
- The appellant, having fully served a prior consecutive sentence for escape from lawful custody, shall be released forthwith without further bar on account of that sentence.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
HCCRA NO. 53 OF 2018
ADAM AMDANY..............................................................APPELLANT
=VERSUS=
REPUBLIC......................................................................RESPONDENT
[An appeal from the original conviction and sentence of the Senior Principal Magistrate’s Court
at Kabarnet Criminal Case no. 1121 of 2016 deliveredon the 29th day of November, 2017
by Hon.N. M. Idagwa, SRM]
JUDGMENT
1. This Court has taken the view in several previous decisions that the constitutional imperative of Article 159 (2) (c) of the Constitution that in exercising judicial authority, the Courts and tribunals shall be guided by the principle, among others, that “(c) Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanism shall be promoted”the criminal process and applies both at trial and appellate levels.
2. In this case, the complainant, who is a relative of the appellant in their relation of father-son according to Kalenjin custom – the appellant’s father’s mother and the complainant’s mother having been from the same clan, has confirmed he has forgiven the appellant and that he seeks no compensation for his injury from which he has recovered and which was subject of the assault charge, herein.
3. The DPP does not object to the process of reconciliation and had in fact initially agreed that the appellant having already served a substantial portion of his sentence may serve the remaining term on a non-custodial sentence subject to a favourable pre-sentence Probation Officer’s Report.
4. The Court takes into account the private and personal nature of the grievous harm charge, the forgiveness by the complainant, the no-objection by the DPP and the non-aggravated nature of the injuries from which the complainant professes to have fully recovered, and the fact that the appellant has served a substantial portion of the 4 year sentence imposed by the trial Court.
Order
5. Pursuant to Article 159 (2) (c) of the Constitution, the Court promotes the reconciliation between the appellant and the complainant herein and, as a consequence, the appellant who has served a substantial portion of his sentence shall have the sentence reduced to the time already served, so that he is released from custody unless he is otherwise lawfully held.
6. The appellant, having fully served a consecutive prior sentence of imprisonment for 1 year since 6/11/17 for the offence of escape from lawful custody, shall forthwith be released from custody without any further bar on account of the sentence under the charge of escape from custody in KBT. PMC Cri. No. 682 of 2017.
Order accordingly.
DATED AND DELIVERED THIS 10TH DAY OF JULY 2019.
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Ass. DPP for the Respondent