[2012] KEHC 4802 (KLR)
The court found that although the offence of grievous harm is serious and carries a maximum penalty of life imprisonment, the appellant was a senior citizen, had no previous convictions, and had already served one year in prison. The court exercised its discretion to substitute the remainder of the prison term with...
Source-derived case information.
- Citation
- [2012] KEHC 4802 (KLR)
- Parties
- Appellant: Francis Obonyo Obwoku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 217 of 2010
- Procedural Posture
- Criminal Appeal / Appeal on Sentence
- Outcome
- sentence varied; option of fine granted
- Legal Topics
- Sentencing Principles, Grievous Harm, Penal Code Section 234
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Obonyo Obwoku
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal on Sentence
Legal Issues
- 1 Whether the sentence of five years imprisonment for grievous harm was harsh in the circumstances.
- 2 Whether the appellant should be granted a non-custodial sentence or the option of a fine.
Ratio Decidendi
The court found that although the offence of grievous harm is serious and carries a maximum penalty of life imprisonment, the appellant was a senior citizen, had no previous convictions, and had already served one year in prison. The court exercised its discretion to substitute the remainder of the prison term with an option of a fine, considering the appellant's age, relationship to the complainant, and lack of prior record. The sentence was thus reduced to a fine of Kshs. 50,000 or, in default, one year imprisonment.
Court Disposition
sentence varied; option of fine granted
Orders
- The appellant to pay a fine of Kshs. 50,000 in substitution of the remainder of the prison term.
- In default of payment of the fine, the appellant to serve one year imprisonment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 217 OF 2010
(Appeal arising from the Senior Resident Magistrate’s Court at Mumias
In Criminal Case No. 199 of 2010 [E. K. MAKORI, PM])
FRANCIS OBONYO OBWOKU........................................................APPELLANT
VERSUS
REPUBLIC......................................................................................RESPONDENT
JUDGMENT
The Appellant’s appeal is on sentence only.
The grounds of appeal are that:-
1. The sentence was harsh considering the prevailing circumstances.
2. That the Appellant is remorseful and prays for a non-custodial sentence; or the option of paying a fine.
The Prosecution had no objection and left the matter to the court to exercise its discretion.
The Accused was sentenced to serve five (5) years imprisonment for the offence of grievous harm contrary to Section 234 of the Penal Code.
Section 234 of the Penal Code provides that:-
“any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”
The evidence accepted by the trial magistrate is that the appellant hit the complainant with a metal rod on the shoulder. The complainant sustained a fractured clavicle bone and loss of consciousness. The complainant was admitted in hospital for one day.
There is no evidence of any provocation of the Appellant by the Complainant. The attack led to a serious injury. However, the appellant is a grandfather to the complainant according to the complainant’s evidence. He is therefore a senior citizen. No previous records of any conviction were produced by the Prosecution. The Appellant has already served one year in prison.
This court is inclined to give the appellant an option of a fine in substitution of the remainder of the prison term. The appellant to pay a fine of Kshs.50,000/= in default to serve one year imprisonment.
Delivered, dated and signed in open court at Kakamega this 26th day of January, 2012.
B. THURANIRA JADEN
J U D G E