[2016] KEHC 826 (KLR)
The appellate court found that the trial court had considered the circumstances of the offence, including the serious injuries inflicted by the appellant and her attempt to commit suicide. The trial court also took into account mitigating factors. The sentence imposed—10 years for attempted murder and 2 years for...
Source-derived case information.
- Citation
- [2016] KEHC 826 (KLR)
- Parties
- Appellant: Beatrice Ngwasi Kyusya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 58 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- LN Mutende
- Legal Topics
- Attempted Murder, Attempted Suicide, Sentencing Principles, Mitigation, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Beatrice Ngwasi Kyusya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court for attempted murder and attempted suicide was harsh or excessive.
- 2 Whether the appellate court should interfere with the sentence imposed by the lower court.
Ratio Decidendi
The appellate court found that the trial court had considered the circumstances of the offence, including the serious injuries inflicted by the appellant and her attempt to commit suicide. The trial court also took into account mitigating factors. The sentence imposed—10 years for attempted murder and 2 years for attempted suicide, to run concurrently—was within the statutory limits and not excessive or harsh. There was no evidence that the trial court applied the wrong principles or considered irrelevant factors. Therefore, there was no basis for appellate interference, and the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL APPEAL NO. 58 OF 2015
BEATRICE NGWASI KYUSYA……..............................APPELLANT
VERSUS
REPUBLIC……………………………….…...……..RESPONDENT
(Being an appeal from the original conviction and sentence in Mutomo Senior Resident Magistrate’s Court Criminal Case No. 267 of 2013 by Hon. S. K. Mutai Ag. P M on 31/03/14)
J U D G M E N T
1. Beatrice Ngwasi Kyusya,“the Appellant” was charged with the offence of Attempted Murdercontrary to Section 220(6)of the Penal Code.Particulars of the offence were that on the 30thday of November, 2013 at about 5. 00 a.m.at Mumbuni Village, Kyatune Locationof Mutomo Districtwithin Kitui County,with intent attempted unlawfully to cause the death of Francis Kiusya alias Kivaoby stabbing him with a sword.
2. In the second count, she faced a charge of Attempted Suicidecontrary to Section 226as read with Section 36of the Penal Code.Particulars of the offence were that on the 30thday of November, 2013 at about 5. 00 a.m.at Mumbuni Village, Kyatune Locationof Mutomo Districtwithin Kitui County,with intent, she attempted to kill herself by taking a poison namely Diazonol.
3. She was tried convicted and sentenced to serve 10 years imprisonmenton the 1st count and two (2) years imprisonmenton the second count. Sentences were to run concurrently.
4. Being dissatisfied with the sentence imposed she mitigates on grounds that the sentence meted out was harsh and she is a single parent with Seven (7) children.
5. In her written submissions she stated that life in prison is demeaning, humiliating and dehumanizing. She has been rehabilitated and acquired skills in dressmaking, baking and knitting. Her children need parental care.
6. In a response thereto, the State through Mr. Njogua Prosecuting Counsel opposed the appeal arguing that the sentence was not excessive. He urged the court to uphold the sentence imposed.
7. I have been called upon to interfere with the sentence imposed by the Lower Court. In determining the issue I must reconsider circumstances in which the Lower Court came up with the sentence imposed and come up with my own conclusion bearing in mind that I had no opportunity of hearing the Appellant mitigate.
8. In the case of Shadrack Kipkoech Kogo vs. Republic, Eldoret Criminal Appeal No. 253 of 2003the Court of Appeal held that:
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered with. (Also see sayeka vs. Republic (1989) KLR 360)
9. The sentence provided for the offence the Appellant was charged with and convicted for is upto life imprisonment.
10. Taking into consideration circumstances in which the offence was committed, the offender (Appellant) inflicted serious injuries on the person of the Complainant, her husband and attempted to commit suicide. In sentencing her, the trial court took into consideration mitigating factors. In the premises the sentence imposed was not excessive or harsh. The appeal lacks merit, accordingly, it is dismissed.
11. It is so ordered.
Dated, Signed and Delivered at Kitui this 12th day of October, 2016.
L. N. MUTENDE
JUDGE