[2003] KEHC 372 (KLR)
The High Court found that the appellant had already served the substantial part of his custodial sentence and had not received the corporal punishment ordered. Given the State's concession and the principle that sentences should not be excessive or unduly punitive, the court held that the remaining custodial...
Source-derived case information.
- Citation
- [2003] KEHC 372 (KLR)
- Parties
- Appellant: Bonface Mutie Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 367 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence reduced; corporal punishment set aside
- Judges
- DA Onyancha
- Legal Topics
- Sentencing, Appeals on Sentence, Corporal Punishment, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonface Mutie Mutisya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the lower court was excessive in the circumstances.
- 2 Whether the appellant should be spared the corporal punishment component of the sentence.
Ratio Decidendi
The High Court found that the appellant had already served the substantial part of his custodial sentence and had not received the corporal punishment ordered. Given the State's concession and the principle that sentences should not be excessive or unduly punitive, the court held that the remaining custodial sentence and the corporal punishment should be set aside. The appeal was allowed to the extent that the appellant would serve only the period already served and would not undergo the four strokes of the cane.
Court Disposition
appeal allowed in part; sentence reduced; corporal punishment set aside
Orders
- The appellant will serve only the sentence already served.
- The four strokes of the cane are removed from the sentence.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI LAW COURTS)
crim app 367 of 02
BONFACE MUTIE MUTISYA ………………………… APPELLANT
VERSUS
REPUBLIC ………………………………………………RESPONDENT
JUDGMENT
The appellant was convicted of attempted burglary contrary to section 304 subsection 2 as read with section 389. He was convicted and sentenced to 2 years with 4 strokes of a cane. He abandoned his appeal on conviction. He has given further grounds of mitigation. He has not received the strokes of the cane ordered by the lower court. The State does not oppose the reduction of sentence. Only two months or so of the sentence remain. I have considered the appeal. I agree with the State Counsel Miss Nyamosi that he appellant has served enough. He can have his sentence reduced by the months remaining to be served and can be spared of the four strokes of the cane.
This court accordingly allows the appeal on sentence only. The appellant will serve what sentence he has already served and the strokes of the cane part is hereby removed from his sentence. To that extent the appeal is allowed.
The upshot is that the appellant will be released from prison forthwith unless lawfully detained.
It is so ordered.
Dated and delivered at Nairobi this 26th day of March 2003
D.A. ONYANCHA
JUDGE