[2018] KEHC 7732 (KLR)
The court found that the evidence on record was cogent and sufficient to sustain the conviction for grievous harm. The appellant's mitigation, including remorse, time served, and ill health, did not outweigh the seriousness of the offence or justify interference with the sentence. The appeal was dismissed as the...
Source-derived case information.
- Citation
- [2018] KEHC 7732 (KLR)
- Parties
- Appellant: Fred Juma Simiyu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 33 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; appellant released forthwith unless lawfully held
- Judges
- HK Chemitei
- Legal Topics
- Grievous Harm, Sentencing, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Juma Simiyu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction and sentence for grievous harm under Section 234 of the Penal Code was proper.
- 2 Whether the appellant's mitigation and time served warranted interference with the sentence.
Ratio Decidendi
The court found that the evidence on record was cogent and sufficient to sustain the conviction for grievous harm. The appellant's mitigation, including remorse, time served, and ill health, did not outweigh the seriousness of the offence or justify interference with the sentence. The appeal was dismissed as the conviction and sentence were proper in law, and the respondent did not seek enhancement. However, the court ordered the appellant's release forthwith unless otherwise lawfully held, considering the time already served in custody.
Court Disposition
appeal dismissed; appellant released forthwith unless lawfully held
Orders
- The appeal is dismissed.
- The appellant is released forthwith unless lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. 33 OF 2017
(Being an appeal arising from conviction and sentence in Kitale Chief Magistrate's Court in Criminal case No. 2593 of 2014 delivered by P. Biwott Senior Principal Magistrate on 1/9/15.
FRED JUMA SIMIYU......................APPELLANT
VERSUS
REPUBLIC......................................RESPONDENT
J U D G M E N T
1. The appellant was charged with the offence of grevious harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on the 22nd day of February 2014 at Maili Nane Trading Centre within Trans Nzoia County unlawfully did grevious harm to James Kariuki Wainaina.
2. The appellant was convicted and sentenced to 4 years imprisonment. He has filed this appeal challenging the same. However when the matter came up for trial he filed some submissions in which he generally mitigated. He stated that he was remorseful and regretted the Offence and that he had already served 1/3 of the term. That he was unwell and his conditions was deteriorating.
3. For the above reasons I do not intend to proceed as it were with the merits and the demerits of the appeal.
4. It appears that although he was granted bond of Kshs 50,000/- or cash bail of Kshs 30,000/- he was unable to raise. He has generally been in custody since July 2014. The state submitted that the offence attracted life imprisonment.
5. My position is that the appellant must have learned his lessons. I shall therefore dismiss the appeal entirely, which after perusing the evidence on record I would have done so anyway. The evidence that was presented was cogent enough to have sustained a conviction, which it did. The respondent in any event did not ask this court to enhance the sentence.
6. The appeal is hereby dismissed. The appellant however is released forthwith unless lawfully held.
Delivered, signed and dated at Kitale this 20th day of March 2018.
_______________
H.K. CHEMITEI
JUDGE
20/3/18
In the presence of:
M/s Kakoi for the Respondent
Appellant – present
Court Assistant – Silvia
Judgment read in open court.