[2021] KEHC 13642 (KLR)
The court found that the evidence presented at trial was consistent and credible, with no material contradictions as alleged by the appellant. The period the appellant spent in custody was not a sentence but a result of his inability to meet bond terms, and thus need not be factored into the sentence. The sentence...
Source-derived case information.
- Citation
- [2021] KEHC 13642 (KLR)
- Parties
- Appellant: Geoffrey Odhiambo Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 18 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Grievous Harm, Sentencing Principles, Appeals on Conviction, Appeals on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Odhiambo Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction was based on evidence with material contradictions.
- 2 Whether the trial court erred by not factoring in the period the appellant was in custody before sentencing.
- 3 Whether the sentence of six years imprisonment was harsh or excessive.
Ratio Decidendi
The court found that the evidence presented at trial was consistent and credible, with no material contradictions as alleged by the appellant. The period the appellant spent in custody was not a sentence but a result of his inability to meet bond terms, and thus need not be factored into the sentence. The sentence of six years imprisonment for grievous harm, an offence punishable by life imprisonment under section 234 of the Penal Code, was neither harsh nor excessive in the circumstances. The appellate court found no basis to interfere with the conviction or sentence and dismissed the appeal.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of six years imprisonment are upheld.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
CRIMINAL APPEAL NO. 18 OF 2018
GEOFFREY ODHIAMBO OTIENO……………………………………………APPELLANT
VERSUS
REPUBLIC ……………………………………………………………………..RESPONDENT
(From the original conviction and sentence in Criminal case No. 110 of 2017 of the Principal Magistrate’s Court at Ndhiwa by Hon. Mary A.Ochieng– Principal Magistrate)
JUDGMENT
1. Geoffrey Odhiambo Otieno, the appellant, was convicted of the offence of grievous harm contrary to section 234 of the Penal code.
2. The particulars of the offence were that on 13th September, 2015 at Anginya village, Ndhiwa Sub County of Homa Bay County, jointly with another, unlawfully did grievous harm to Maurice Otieno Oruru.
3. He was sentenced to serve six years imprisonment. He has appealed against both conviction and the sentence.
4. The appellant was in person. He raised the following grounds of appeal:
a) That the learned trial magistrate erred in law and in fact by convicting him on evidence rife with contradictions.
b) That the court did not factor in the period he was serving a sentence in Ndhiwa Criminal case number 145 of 2016.
c) That the sentence meted was very harsh.
5. The state opposed the appeal through Mr. Oluoch, the learned counsel.
6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.
7. Maurice Otieno Oruru (PW1) is the complainant in this case. He testified that while going home from the church, the appellant and another stopped him and then viciously cut him with a machete. His evidence was supported by that of John Otange Joseph (PW2) the area assistant chief. He said he witnessed the incident for he was at the scene where he had gone to quell down the animosity by two groups of youths.
8. John Okeyo Olala (PW3) witnessed the incident and was categorical that the appellant was one of the culprits.
9. I have gone through the record and did not come across the contradictions alleged by the appellant.
10. It is important to note that the period the appellant was in custody cannot be termed as a sentence. He had been granted bond but was not able to meet the terms. It is only in exceptional cases where custody period may be factored in the sentence.
11. It is trite law of practice that an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances as was spelled out in Those circumstances were well illustrated in the case of Nilsson vs. Republic [1970] E.A. 599,601as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.
12. After the learned trial magistrate had convicted the appellant, he sentenced him to six years imprisonment. Section 234 of the Penal Code provides as follows:
Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.
13. I have evaluated the evidence on record and concluded that in the circumstances of the offence, the sentence by the learned trial magistrate cannot be said to be harsh or excessive. I have no reason to interfere with it. The appeal is accordingly dismissed.
DELIVEREDandSIGNEDatHoma Bay this 24thdayof June, 2021
KIARIE WAWERU KIARIE
JUDGE