[2017] KEHC 9253 (KLR)
The appellate court found that the trial magistrate exercised sentencing discretion judiciously, considering the nature of the offence, the use of a sharp weapon, and the injuries inflicted. The appellant did not offer any mitigation at trial. The sentence of 10 years' imprisonment was well within the statutory...
Source-derived case information.
- Citation
- [2017] KEHC 9253 (KLR)
- Parties
- Appellant: Alfred Inziani Lukano; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 12 of 2014
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal dismissed; sentence affirmed
- Legal Topics
- Sentencing Principles, Attempted Murder, Judicial Discretion, Mitigation, Appeals Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Inziani Lukano
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 10 years' imprisonment for attempted murder was manifestly harsh or excessive.
- 2 Whether the trial court failed to consider relevant mitigating factors in sentencing the appellant.
Ratio Decidendi
The appellate court found that the trial magistrate exercised sentencing discretion judiciously, considering the nature of the offence, the use of a sharp weapon, and the injuries inflicted. The appellant did not offer any mitigation at trial. The sentence of 10 years' imprisonment was well within the statutory maximum of life imprisonment for attempted murder and was not manifestly harsh or excessive. There was no evidence that the trial court failed to consider relevant factors or considered irrelevant ones. Accordingly, there was no basis for appellate interference with the sentence imposed.
Court Disposition
appeal dismissed; sentence affirmed
Orders
- The sentence of 10 years' imprisonment is affirmed.
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 12 OF 2014
BETWEEN
ALFRED INZIANI LUKANO.................APPELLANT
AND
REPUBLIC.........................................RESPONDENT
(Being an appeal from Original conviction and sentence of Hon. S.M. Shitubi, CM dated 1st January, 2014 at the Chief Magistrate Court at Kakamega in Criminal Case No. 850 of 2012)
J U D G M E N T
1. The appellant ALFRED INDIANI LUKANO was charged with attempted murder contrary to section 220(a) of the Penal Code (Chapter 63 of the laws of Kenya). The particulars of the offence were that on 15th April, 2012 at Shipala Village, Virhembe Sub-location, Shibuye Location of Kakamega District, he attempted unlawfully to cause the death of Robert Luvembe by assaulting him with a panga.
2. The appellant was tried and convicted. He was sentenced to serve 10 years’ imprisonment. He now appeals against the sentence only and in his petition of appeal, he states that the sentence was harsh and that the court did not consider his mitigation. He contended that he was remorseful and a first offender.
3. This is an appeal against a sentence and it has been held that the imposition of a sentence is within the discretion of the trial court. Such discretion must be exercised judiciously. As such the appellate court will only intervene if the sentence is imposed without due regard to established principles or that the trial court failed to take into account material facts or took into account immaterial or irrelevant facts. The appellate court will also intervene if the sentence is too harsh to the extent that it discloses a lack of the relevant considerations.
4. From the proceedings, the case against the appellant is that he attacked the complaint and two other persons suddenly and without provocation when they were directing the police to the scene of a murder. The complainant sustained a cut on the left ear, scalp, left index finger and left arm. The trial magistrate concluded that in fact he would have died. In his defence, the appellant contended that he was attacked but the magistrate disbelieved his case. The appellant did not say anything in mitigation.
5. Having considered the nature of the case, the fact that the appellant used a sharp weapon and hit the complaint on the head without any reason, I cannot say that the sentence was manifestly harsh. The maximum sentence for attempted murder is life imprisonment. 10 years’ imprisonment in the circumstances was an appropriate sentence.
6. The sentence is affirmed. The appeal is dismissed.
Dated and delivered at Kisumu this 30th day of August 2017.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Ng’etich, Senior Prosecution Counsel instructed by the Office of Director of Public Prosecutions.