[2013] KEHC 148 (KLR)
The court found that the appellant was given an opportunity to mitigate, as shown by the record where he stated 'No mitigation.' The trial magistrate did not overlook any relevant factors before passing sentence. The sentence of two years imprisonment was within the statutory maximum and not harsh or excessive....
Source-derived case information.
- Citation
- [2013] KEHC 148 (KLR)
- Parties
- Appellant: David Maina Migwe; Respondent: Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 200 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mshila
- Legal Topics
- Assault Causing Actual Bodily Harm, Sentencing Principles, Mitigation, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Maina Migwe
Appellant
Republic of Kenya
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was denied an opportunity to mitigate before sentencing.
- 2 Whether the sentence imposed was harsh or excessive.
Ratio Decidendi
The court found that the appellant was given an opportunity to mitigate, as shown by the record where he stated 'No mitigation.' The trial magistrate did not overlook any relevant factors before passing sentence. The sentence of two years imprisonment was within the statutory maximum and not harsh or excessive. There was no basis for appellate interference with the sentence imposed by the trial court. The appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of two years imprisonment is upheld.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO.200 OF 2012
DAVID MAINA MIGWE....................................................................APPELLANT
VERSUS
REPUBLIC OF KENYA..................................................................RESPONDENT
[An Appeal from original conviction and sentence in Nyahururu S.P.M.CR.C.NO.52 of 2012 by Hon Hon. V. K. Kiptoon, Resident Magistrate, dated 24th October, 2012
JUDGMENT
The appellant was charged with the offence of assault causing actual bodily harm contrary to Section 251of the Penal Code.
The particulars are that on the 24th day of December, 2011 at Kirima Village in Nyandarua North District, he assaulted MONICAH WAIRIMU NGECHU thereby occasioning her actual bodily harm.
The appellant was convicted and sentenced to serve a term of two (2) years imprisonment.
Being aggrieved by the decision of Hon. V. K. Kiptoon, Resident Magistrate, Nyahururu, the appellant preferred this appeal and listed nine (9) grounds of appeal in his Petition of Appeal.The grounds of appeal are as listed hereunder:
1) That he pleaded not guilty to the charge.
2) That the case was a setup by the complainant, her father and the police.
3) That he operates a shop and that is where the complainant came being under the influence of alcohol and started abusing him and his customers.
4) That on trying to calm the complainant, she started screaming to attract the public telling them that I had beaten her so that they could sympathize with her
5) That the appellant and complainant are neighbours and have had long standing differences because they share a common boundary of their shambas and were brought up together.
6) That he brought himself to court having had a police bond of Kshs.3000/= as he knew he had no case as they had talked at the A.P. Camp.
7) That the case was fabricated by the prosecution as he had not assaulted the complainant.
8) That he prays that the case be reviewed or sentence be set aside to justify his appeal
9) That during mitigation, the he was so confused, unwell and did know what was happening and that he learnt very late that he had been convicted.
At the hearing of the appeal, the appellant opted to abandon his appeal on conviction and chose to make oral submissions on sentence. The appellant submitted that he had not been given a chance to mitigate before sentence was passed. The appellant urged the court to allow the appeal and reduce the sentence.
The appeal was opposed by Learned Prosecuting Counsel for the State, Mr. Marete. Counsel referred the court to the Record of Appeal, in particular page 18. Counsel submitted that the appellant was given a chance to mitigate but did not do so. Counsel further submitted that the Penal Code provides a sentence of 5 years for the offence and that the trial magistrate exercised fair and proper discretion in sentencing the appellant to 2 years imprisonment. The court was urged not to interfere with the sentence.
After hearing the submissions of both the Appellant and counsel for the State, this court finds the following issues for determination:
1) mitigation
2) sentence
On the first issue, upon perusing the Record of Appeal at page 18, this court finds that the appellant was called upon to mitigate and the appellant stated that:
“......................No mitigation.....................”
On the second issue, this court refers to the case of Wanjema V. Republic. (1971) E.A. 493.
An appellate court may interfere with the sentence if it is found to be harsh and excessive or where it is found that the trial magistrate took into account irrelevant or immaterial factors or overlooked important factors.
After perusing the record of appeal, this court finds that the trial magistrate did not overlook any important factor, to wit, mitigation before passing sentence.
This court concurs with the sentiments of counsel for the State that the sentence of two (2) years imposed is neither harsh nor excessive. It is the court's view that the sentence was appropriate in the circumstances of the case.
For the reasons stated above, this court finds no reasons to interfere with the sentence. The appeal is found lacking in merit and is hereby dismissed.
It is so ordered.
Dated, Signed and Delivered at Nakuru this 21st day of June, 2013.
A. MSHILA
JUDGE