[2009] KEHC 100 (KLR)
The High Court found that the offence for which the appellants were convicted was a misdemeanor arising from a domestic dispute between relatives. The appellants were first offenders who pleaded guilty. The trial magistrate failed to consider non-custodial sentences and instead imposed a custodial sentence of one...
Source-derived case information.
- Citation
- [2009] KEHC 100 (KLR)
- Parties
- Appellant: Eunice Nyaboke Ombuna; Appellant: Deborah Mokeira Omenyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Revision Case 139 of 2009
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- sentence revised; custodial sentence set aside; fine imposed
- Legal Topics
- Assault Causing Actual Bodily Harm, Sentencing Principles, Domestic Disputes, Misdemeanor Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Nyaboke Ombuna
Appellant
Deborah Mokeira Omenyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the sentence of one year imprisonment for assault causing actual bodily harm was appropriate in the circumstances.
- 2 Whether the trial court erred in failing to consider non-custodial sentences for first offenders in a domestic dispute.
Ratio Decidendi
The High Court found that the offence for which the appellants were convicted was a misdemeanor arising from a domestic dispute between relatives. The appellants were first offenders who pleaded guilty. The trial magistrate failed to consider non-custodial sentences and instead imposed a custodial sentence of one year imprisonment. The court held that imprisonment should be a last resort, particularly in cases involving domestic quarrels, as it may not serve the interests of justice or the parties involved. The sentence was therefore revised and set aside, and a fine imposed in its place.
Court Disposition
sentence revised; custodial sentence set aside; fine imposed
Orders
- The sentence of one year imprisonment for each accused is set aside.
- Each accused shall pay a fine of Kshs. 5000/= in default three months imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII Revision
Case 139 of 2009
EUNICE NYABOKE OMBUNA )........................APPELLANTS
DEBORAH MOKEIRA OMENYO )
-VERSUS-
REPUBLIC.........................................................RESPONDENT
(Being from original conviction and sentence in the Chief Magistrate’s court
at Kisii Criminal Case No. 1413 of 2009 by C.A. OKORE DMII (PROF)
REVISON
Following trial, the accused were convicted by the District Magistrate II (Prof) at Kisii of assault causing actual bodily harm contrary tosection 251 of the Penal Codeand each sentenced to serve one year in jail. The particulars of the charge were that on 16/7/2009 at Geterere village in Kisii Central District within Nyanza Province they jointly assaulted Damaris Moraa Ombuna and occasioned her actual bodily harm.
The evidence before the trial court revealed that the complainant and the accused are both married in the same home, to different brothers. There is dispute over land amongst them. On 16/7/2009 the accused attacked the complainant who was in the shamba with Charles Ombuna (PW3) and assaulted her. She suffered nail scratches, human bites and was also hit using the blunt side of a jembe. PW3 (Exhibit 1) shows the injuries amounted to harm.
In mitigation, each accused asked for pardon. She was a first offender. The magistrate observed that the offence was serious and called for deterrent sentence.
Undersection 251 of the Penal Codethe offence the accused were jointly convicted of is a misdemeanor. It is not a serious offence. The accused and the complainant were related by marriage. They are in a permanent relationship. The dispute that led to the assault related to family land. A crime committed as a result of a domestic quarrel will not usually attract a term in prison because it has been argued that since the parties are in permanent relationship, imprisoning the offender may also in effect punish the complainant, or that imprisonment may not help such a relationship but instead complicate in further . (SeeJuma .V.Republic [1972] EA 437).
The accused were first offenders who had pleaded guilty to a misdeameanor and ought not to have been asked to serve imprisonment.(SeeNilsson.V.Republic.[1970]EA 599). There is a wide range of non-custodial sentences that the court should have considered. Imprisonment should always be the last option, and not the first, unless the offence was particularly grave, aggravated or widespread in the particular area.
Undersections 362and364 of the Criminal Procedure Codethe sentence of one year jail is revised and set aside. In its place, each accused shall pay a fine of Kshs. 5000/= in default 3 months in jail.
Dated, signed and delivered at Kisii this 25th day of November, 2009.
A.O.MUCHELULE
JUDGE