[2019] KEHC 4623 (KLR)
The High Court found that the trial magistrate erred in imposing the maximum sentence of three years' imprisonment on a first offender convicted of intimidation. While the facts and probation report justified a custodial sentence due to the appellant's violent conduct towards his family, the imposition of the...
Source-derived case information.
- Citation
- [2019] KEHC 4623 (KLR)
- Parties
- Appellant: Emmanuel Ndeta Atswenje; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 150 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; sentence reduced.
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, First Offender Treatment, Intimidation Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Ndeta Atswenje
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in imposing the maximum sentence on a first offender convicted of intimidation.
- 2 Whether the sentence imposed was appropriate in light of the appellant's circumstances.
Ratio Decidendi
The High Court found that the trial magistrate erred in imposing the maximum sentence of three years' imprisonment on a first offender convicted of intimidation. While the facts and probation report justified a custodial sentence due to the appellant's violent conduct towards his family, the imposition of the maximum sentence was not warranted in the absence of aggravating circumstances. The court therefore quashed the three-year sentence and substituted it with a sentence of eighteen months' imprisonment, to run from the date of conviction before the trial court.
Court Disposition
Appeal allowed in part; sentence reduced.
Orders
- The sentence of three years' imprisonment is quashed.
- The appellant is sentenced to eighteen months' imprisonment to run from the date of conviction before the trial court.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CORAM: D. S. MAJANJA, J.
CRIMINAL APPEAL NO. 150 OF 2018
BETWEEN
EMMANUEL NDETA ATSWENJE..................................................APPELLANT
AND
REPUBLIC ....................................................................................RESPONDENT
(Being an appeal from the original conviction and sentence by Hon. F. M. Nyakundi, RM, dated 11th October, 2018 in Mumias Magistrates Court Criminal Case No. 535 of 2018)
JUDGMENT
1. The appellant, EMMANUEL NDETA ATSWENJE, was charged and convicted of the offence of intimidation contrary to section 238 (1) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the offence were that on the 29th March, 2018 at Shieyala Village, Indangalasia Location in Matungu Sub-County within Kakamega County, with intent to cause alarm to Salome Athieno Atswenje, threatened to cause unlawful injury to Salome Athieno Atswenje with blows.
2. At the hearing of this appeal, the appellant informed the court that he was only contesting the sentence and urged the court to exercise leniency.
3. Under Section 238 (1) of the Penal Code, the maximum sentence prescribed is 3 years’ imprisonment. The appellant was sentenced to 3 years’ imprisonment which to my mind constitutes an error of principle as the court ought not impose a maximum sentence on a first offender.
4. I however agree with the trial magistrate that the facts of the case disclosed a person who does not respect his mother. The probation report revealed violence towards his family hence non-custodial sentence was properly ruled out.
5. I therefore allow the appeal to the extent that the sentence of 3 years’ imprisonment is quashed and substituted with a sentence ofeighteen (18) months to run from the date on conviction before the trial court.
DATED and DELIVERED at KAKAMEGA this 3rd day of September 2019.
D. S. MAJANJA
JUDGE
Appellant in person.
Ms Ombega, Prosecution Counsel, instructed by the Director of Public Prosecutions for the respondent.