[2013] KEHC 1399 (KLR)
The High Court found that while the conviction for assault was based on sound evidence, the trial court erred by not considering the appellant's status as a first offender and not providing the option of a fine. Given the appellant's imminent release and the period already served, the appellate court reduced the...
Source-derived case information.
- Citation
- [2013] KEHC 1399 (KLR)
- Parties
- Appellant: Dominic Ndathi Ngurungui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 222 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- HI Ong'udi
- Legal Topics
- Assault, Sentencing, Penal Code Section 251
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Ndathi Ngurungui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for assault was appropriate in the circumstances.
- 2 Whether the appellant, as a first offender, should have been given the option of a fine.
Ratio Decidendi
The High Court found that while the conviction for assault was based on sound evidence, the trial court erred by not considering the appellant's status as a first offender and not providing the option of a fine. Given the appellant's imminent release and the period already served, the appellate court reduced the sentence to the period already served, allowing the appeal on sentence only. The conviction was upheld, but the sentence was modified to reflect time served.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed to the extent that the sentence is reduced to the period already served.
- The appellant shall be released unless lawfully held under a separate warrant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 222 OF 2011
DOMINIC NDATHI NGURUNGUI...............APPELLANT
VERSUS
REPUBLIC............................................PROSECUTOR
FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO.80 OF 2011 AT THE PRINCIPLE MAGISTRATE’S COURT AT SIAKAGO BY HON. A.N. TUTA- DM II ON 6/12/2011
JUDGMENT
DOMINIC NDATHI NGURUNGUI the applicant herein was charged with the offence of assault contrary to Section 251 of the Penal Code. He denied the charge and the matter proceeded to full hearing. He was eventually convicted on 6/12/2011. He was sentenced to three (3) years imprisonment. When the appeal came for hearing today on 16/10/2013 the applicant indicated he was satisfied with conviction and was due for release in December 2013.
I have considered the evidence on record and I do find that he was convicted on sound evidence. A social inquiry report had been called for and produced in the court below. It was found to be unfavourable. He was however a first offender but was not given an option of a fine.
I therefore allow his appeal on sentence and reduce the sentence to the period already served. To that extent only does the appeal succeed.
He will be released unless lawfully held under a separate warrant.
Delivered, signed and dated at Embu this 16th day of October 2013.
H. I. ONG'UDI
JUDGE
16/10/2013
In the presence of:
Ms Ingahizu - State
Appellant – present
Mutero/Kirong- CC