[2019] KEHC 3856 (KLR)
The court found that despite a positive probation report, the applicant had not demonstrated remorse or made any effort to compensate the victim, who suffered serious injuries and opposed a non-custodial sentence. The assault was aggravated by the fact that it was motivated by the victim's testimony in a previous...
Source-derived case information.
- Citation
- [2019] KEHC 3856 (KLR)
- Parties
- Appellant: Ezekiel Onyango Ogwang; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 40 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for revision of sentence dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Grievous Harm, Non Custodial Sentence, Probation Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Onyango Ogwang
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence of five years imprisonment for grievous harm should be revised to a non-custodial sentence.
- 2 Whether the applicant has shown remorse or taken steps towards compensating the victim to justify sentence revision.
Ratio Decidendi
The court found that despite a positive probation report, the applicant had not demonstrated remorse or made any effort to compensate the victim, who suffered serious injuries and opposed a non-custodial sentence. The assault was aggravated by the fact that it was motivated by the victim's testimony in a previous case, amounting to obstruction of justice. There was no provocation from the victim. The sentence of five years imprisonment was lawful and lenient given the maximum penalty for grievous harm is life imprisonment. The court concluded that a non-custodial sentence would not serve the interests of justice or aid in the applicant's reform, and therefore declined to revise the sentence.
Court Disposition
application for revision of sentence dismissed
Orders
- Application for revision of sentence is dismissed.
- The convict to serve the full five-year prison sentence subject to remission at the discretion of Prisons authorities.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HI.GH COURT OF KENYA AT SIAYA
CRIMINAL REVISION NO. 40 OF 2019
EZEKIEL ONYANGO OGWANG................APPELLANT
VERSUS
REPUBLIC.....................................................RESPONDENT
(Being an appeal against both the conviction and the sentence in Siaya PMCRC No. 895 of 2018 DATED 31. 7.2019 before Hon J. O. Ongondo – P.M.)
RULING
1. The Convict/Applicant Ezekiel Onyango Ogwang was convicted of the offence of grievous harm on 10. 7.2019. He was sentenced to serve five(5) years imprisonment. He has not appealed. He now seeks for sentence revision. The Probation Officer’s Report dated 29. 8.2019 recommends probation sentence subject to Court’s discretion.
2. The Victim of the offence was interviewed and She is against any non-custodial sentence as she was not paid the compensation that she asked.
3. The Victim and the Convict are related. She sustained serious injuries during the assault. The Convict has not shown any remorse for brutally injuring the Complainant. Despite the positive Probation Report, I am not persuaded that non-custodial sentence will help the convict reform as he has not even offered to apologize to the Complainant or to compensate her in damages as suggested by the victim who may not be in a position to lodge a Civil Suit for recovery.
4. The victim was attacked for testifying in a case where the convict was allegedly defeated in Court. This is obstruction of Justice.
5. There was no provocation from the Victim. The sentence meted out was lawful and lenient considering the maximum is life imprisonment.
6. Accordingly, I decline to revise sentence of five (5) years imprisonment and dismiss the application for revision of sentence.
7. The convict to serve full prison sentence subject to remission at the discretion of Prisons authorities.
8. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 19TH DAY OF SEPTEMBER, 2019.
R.E. ABURILI
JUDGE