[2014] KEHC 7294 (KLR)
The court found that the appellant was properly convicted on his own unequivocal plea of guilty for assault causing actual bodily harm, an offence carrying a maximum sentence of five years. The appellant was not a first offender, having previous convictions for similar offences. The two-year sentence imposed was...
Source-derived case information.
- Citation
- [2014] KEHC 7294 (KLR)
- Parties
- Appellant: David Swaka Mwinami; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 219 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Principles, Assault Causing Actual Bodily Harm, Plea of Guilty, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Swaka Mwinami
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of two years imprisonment for assault causing actual bodily harm was harsh or excessive.
- 2 Whether the sentence should run concurrently with another sentence in a separate criminal case.
- 3 Whether the appellant was properly convicted on his own plea of guilty.
Ratio Decidendi
The court found that the appellant was properly convicted on his own unequivocal plea of guilty for assault causing actual bodily harm, an offence carrying a maximum sentence of five years. The appellant was not a first offender, having previous convictions for similar offences. The two-year sentence imposed was within the statutory maximum and not excessive or harsh. The court further held that it was not practicable or appropriate to order the sentence in this case to run concurrently with the sentence in a separate case (Criminal Case No. 314 of 2011), as the offences were unrelated and the file for the other case was not before the court. There was no legal or factual basis to...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 219 OF 2012
(An appeal against the sentence of the Senior Resident Magistrate’s Court at Butere in Criminal
Case No. 313 of 2011 [L. N. KINIALE, DMII (PROF)])
DAVID SWAKA MWINAMI…..……………..……. APPELLANT
VERSUS
REPUBLIC ….......................……………..…….. RESPONDENT
JUDGMENT
The appellant was charged in the lower court with assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of charge were that on the 20th August 2011 at Eshirula village, Wambulishe Sub-location, Kisa Central Location in Khwisero District within kakamega County assaulted Stephen Mwinami Mandara thereby occasioning him actual bodily harm. He was convicted on his own plea of guilty and sentenced to serve 2 years imprisonment.
He has now appealed to this court against sentence only. He stated in the grounds of appeal that he was also convicted in Butere criminal case No. 314 of 2011 and sentenced to serve eight (8) years imprisonment for breaking into a building and committing a felony. He has asked for leniency and requested that the two sentences run concurrently or that he be given a non-custodial sentence or an option of fine.
The learned Prosecuting Counsel Ms Opiyo, submitted that the appellant was properly convicted on his own plea of guilty and sentenced to two (2) years imprisonment. Counsel left the issue of sentence to the discretion of the court.
The appeal herein arises from file No. 313 of 2011 from the subordinate court at Butere. That is the file I have. I do not have file No. 314 of 2011 from the subordinate court. The appellant herein was convicted on his own plea of guilty to the offence of assault causing actual bodily harm. Having perused the record, I am of the view that his plea of guilty was unequivocal. He was therefore properly convicted on his own plea of guilty.
He was sentenced to serve two (2) years imprisonment. He was not a first offender, as the prosecutor indicated that he had committed similar offences in criminal case No. 560/10 and was convicted on three counts.
The maximum sentence for the offence of assault causing actual bodily harm is five (5) years imprisonment. The appellant, not being a first offender, cannot say that the sentence of 2 years imprisonment was harsh and excessive. Therefore there is no basis for interfering with the length of the sentence.
With regard to his request that the sentence herein be made to run concurrent with that in criminal case No. 314/11, that is not practicable. Firstly, I do not have that file with me. Secondly, that was a completely separate trial for an offence whose circumstances were totally different from the present. In my view, it would be wrong to make the sentences in the two cases to run concurrently. Incase the appellant wants to appeal against the sentence in that case, he is free to do so.
In conclusion, I find no merits in the appeal. The appeal is dismissed.
Dated at Kakamega this 29th day of January, 2014
George Dulu
JUDGE