[2004] KEHC 754 (KLR)
The court found that while the appellant had indeed committed grievous harm, the sentence of five years imprisonment was excessive given her age (75 years), her status as a first offender, and the familial relationship with the complainant. The court noted that the appellant had already spent time in custody prior...
Source-derived case information.
- Citation
- [2004] KEHC 754 (KLR)
- Parties
- Appellant: Gati Machumbe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 121 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- K Bauni
- Legal Topics
- Sentencing, Grievous Harm, Penal Code Section 234, Appeal Against Sentence, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gati Machumbe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years imprisonment for the offence of grievous harm was excessive in the circumstances.
- 2 Whether the appellant's age and status as a first offender warranted a non-custodial sentence.
Ratio Decidendi
The court found that while the appellant had indeed committed grievous harm, the sentence of five years imprisonment was excessive given her age (75 years), her status as a first offender, and the familial relationship with the complainant. The court noted that the appellant had already spent time in custody prior to sentencing and that a non-custodial sentence should have been considered. Consequently, the court allowed the appeal against sentence, set aside the five-year imprisonment, and ordered a probation report to determine an appropriate non-custodial sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal against sentence is allowed.
- The sentence of five years imprisonment is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL APPEAL NO.121 OF 2004
(From original conviction and sentence of the Resident Magistrate’s Court at Kehancha in Criminal Case No.61 of 2004 – M. K. K. SEREM ESQ., RM)
GATI MACHUMBE ………………………………………………….. APPELLANT
VERSUS
REPUBLIC …………………………………………………….……. RESPONDENT
JUDGMENT
Appellant was convicted by the Senior Resident Magistrate Kehancha for the offence of Grievous harm c/s.234 of the Penal Code and sentenced to five years imprisonment.
The particulars were that on unknown dates in the month of January 2004 at Nyamaharaga s/location she unlawfully did grievous harm to GATHRIDA BOKE JUMA.
The appellant had appealed against both the conviction and sentence. However on the hearing day and she abandoned her appeal against conviction and argued appeal against sentence. It was submitted that the sentence of 5 years was excessive. Appellant was said to be an old lady of 75 years.
The appeal was opposed. It was submitted that appellant seriously assaulted the complainant burning her for stealing shs.10/=.
It is not in dispute that appellant assaulted the complainant. PW1 the Clinical Officer who examined complainant found several burn marks. However Court has been told the appellant is 75 years old. This has not been disputed. The complainant is her grand daughter and was disciplining her for stealing money. Though she went over board I feel a jail sentence of 5 years for an old woman of 75 years is excessive. She was jailed in May and before then she was in custody from February 2004. She was a first offender. A non-custodial sentence should have been considered.
I therefore allow the appeal against sentence and set aside the sentence of 5 years imprisonment. I will wait for a probation report. M. on 18/11/04.
KABURU BAUNI
JUDGE
1/11/04
Mr. Chichi for State Appellant presen
Mr. Chichi for State Appellant present.
KABURU BAUNI
JUDGE