[2021] KEHC 13674 (KLR)
The High Court found that there was no evidence presented regarding the appellant's mental status at the time of the offence, so the trial magistrate could not be faulted for not considering it. The court also found that the trial magistrate had expressly considered the appellant's mitigation before sentencing....
Source-derived case information.
- Citation
- [2021] KEHC 13674 (KLR)
- Parties
- Appellant: Benard Omondi Maende; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E003 of 2020
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- KW Kiarie
- Legal Topics
- Grievous Harm, Sentencing, Mitigation, Mental Status, First Offender
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Omondi Maende
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred by not considering the appellant's mental status at the time of the offence.
- 2 Whether the trial magistrate failed to appreciate the appellant's mitigation before sentencing.
Ratio Decidendi
The High Court found that there was no evidence presented regarding the appellant's mental status at the time of the offence, so the trial magistrate could not be faulted for not considering it. The court also found that the trial magistrate had expressly considered the appellant's mitigation before sentencing. However, given that the appellant was a first offender, the appellate court exercised its discretion to interfere with the sentence, reducing it from five years to three years imprisonment, to run from the date of the original sentence.
Court Disposition
sentence varied
Orders
- The sentence of five years imprisonment is set aside and substituted with a sentence of three years imprisonment.
- The sentence will run from the date the appellant was sentenced by the trial court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
CRIMINAL APPEAL NO. E003 OF 2020
BENARD OMONDI MAENDE.............................................................................APPELLANT
VERSUS
REPUBLIC.............................................................................................................RESPONDENT
(From the original conviction and sentence in Criminal case No.166 of 2018 of the
Principal Magistrate’s Courtat Mbita by Hon. Jacinta A. Owiti–Senior Principal Magistrate)
JUDGMENT
1. Benard Omondi Maende, the appellant herein, was convicted for the offence of grievous harm contrary to section 234 of the Penal Code.
2. The particulars of the offence were that on the 7th day of April, 2018 at Koguna village, Suba North Sub-County within Homa Bay County, unlawfully did grievous harm to Joseph Oduor Otieno by inflicting a deep cut wound on the head.
3. The appellant was sentenced to serve 5 years imprisonment. He has appealed against sentence.
4. The appellant was in person. He raised six grounds of appeal which can be summarised as follows:
a) That the learned trial magistrate erred in law and in fact by not considering his mental status at the time of the offence.
b) That the learned trial magistrate erred in law and in fact by failing to appreciate his mitigation.
5. The appeal was opposed by the state through Mr. Ochengo, learned counsel.
6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.
7. There was no evidence on the mental status of the appellant that was adduced. The learned trial magistrate cannot therefore be accused of failing to factor in such evidence.
8. Before the sentencing, the trial court clearly indicated that she had considered the mitigation of the appellant.
9. The appellant was a first offender and I am persuaded to interfere with the sentence of the learned trial magistrate. I set aside the sentence of five years imprisonment and substitute it with a sentence of three years imprisonment. The sentence will run from when the appellant was sentenced by the trial court.
DELIVERED AND SIGNED AT HOMA BAY THIS 19TH DAY OF OCTOBER, 2021
KIARIE WAWERU KIARIE
JUDGE