[2009] KEHC 758 (KLR)
The court found that the appellant's plea of guilty was unequivocal, as the proceedings were interpreted in his mother tongue and he accepted the facts as narrated. The trial court exercised its discretion in sentencing, considering the seriousness of the offence, the use of a weapon, the severe injury inflicted...
Source-derived case information.
- Citation
- [2009] KEHC 758 (KLR)
- Parties
- Appellant: Elijah Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 63 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Plea of Guilty, Sentencing Principles, Grievous Harm, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Odhiambo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal and valid under section 207 of the Criminal Procedure Code.
- 2 Whether the sentence imposed by the trial court was lawful and justified in the circumstances.
Ratio Decidendi
The court found that the appellant's plea of guilty was unequivocal, as the proceedings were interpreted in his mother tongue and he accepted the facts as narrated. The trial court exercised its discretion in sentencing, considering the seriousness of the offence, the use of a weapon, the severe injury inflicted (loss of an eye), and the appellant's previous conviction. The sentence of five years' imprisonment, ordered to run concurrently with an existing sentence, was within the statutory maximum and not manifestly excessive. No error of law or principle was identified in the conviction or sentence. The appeal was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of the trial court are upheld.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Criminal Appeal 63 of 2009
ELIJAH ODHIAMBO……………………………….APPELLANT
-VERSUS-
REPUBLIC………………………………………….RESPONDENT
(From original conviction and sentence in the Senior Resident Magistrate’s Court, Ndhiwa, Criminal Case No.80 of 2006 by Z.J.NYAKUNDI(SRM)
JUDGMENT
The appellant was convicted on own plea of guilty by the Senior Resident magistrate, Ndhiwa, of grevious harm contrary to section 234 of the Penal Code. The particulars of the charge were that on 31/12/2005 at South Kabuoch Location in Homa Bay District within Nyanza province he jointly with another not before the court unlawfully did grevious harm to Samwel Odera Anyim. He was sentenced to 5 years imprisonment, and now appeals against the conviction and sentence.
The facts narrated to the appellant, and which he accepted to be correct, were that on 31/12/2005 the complaint, a village elder, was in company of Assistant chief of Kobita and they had gone to solve a dispute in the home of Ogambe. When they arrived the appellant picked a panga and threatened to cut the Assistant Chief. The complainant intervened by getting hold of the appellant. However, the appellant overpowered the complainant and cut him on the right eye. He was taken to hospital where he was admitted for 7 days before discharge. Report was made to Ndhiwa police which issued the complainant with P3 which was completed. The P3 form was produced in court and showed the eyeball was removed. He suffered grievious harm. The appellant was convicted, and court was informed he was serving a jail term of 2 years in Criminal Case no. 96 of 2009. He mitigated by saying he was taking care of his mother. The court took into consideration all these and sentenced him to serve 5 years in jail, and ordered the term to be concurrent with the sentence he was serving.
The record shows the proceedings were interpreted to the appellant in his mother language (Luo). I am satisfied the plea was unequivocal as required by the provisions of section 207 of the Criminal Procedure Code and amplified by the Court of Appeal in Adan.V.Republic [1973] EA 445.
Regarding sentence, it should be noted that the trial court was excersing its discretion which should not be interfered with unless it is shown that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. (See Wanjema .V. Republic [1971]EA.493). The appellant, without provocation, used a vicious weapon and seriously wounded the complainant, a village elder, who had come to solve a dispute. The complainant’s eye had to be removed as a result. The appellant had a previous conviction. The maximum penalty for the offence is life imprisonment. He was let off lightly. The court correctly ordered the 5 years to be concurrent to the sentence he was already serving.
I agree with Mr. Kemo for the State that the appeal lacks merits as the appellant was correctly convicted and sentenced.
The appeal is dismissed.
Dated, signed and delivered at Kisii this 11th Day of November, 2009
A.O.MUCHELULE
JUDGE
11/11/2009
11/11/2009
Before A.O.Muchelule-J
Court clerk-Mongare
Mr. Mutai for State
Appellant-present
COURT: Judgment in open court.
A.O.MCUHELULE
JUDGE
11/11/2009