[2019] KEHC 6442 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

CRIMINAL APPEAL NO. 38 OF 2016

HAMISI KARISA RUA............APPELLANT

VERSUS

REPUBLIC..............................RESPONDENT

(Being an appeal from the original conviction and sentence in the Senior Resident Magistrate Court at Lamu Criminal Case No. 329 of 2016 by Hon. Njeri Thuku (SRM) dated 16th September 2016)

JUDGMENT

1. The Appellant Hamisi Karisa Rua was charged with the offence of causing grievous harm contrary to section 234 of the Penal Code. He was alleged to have unlawfully assaulted and caused grievous harm to Khadija Ngigi Kariuki who was said to be his wife of one year. The offence was committed on 13th July 2016 at Wiyoni Area within Lamu West Sub-County in Lamu County.

2. Three witnesses testified for the prosecution. The complainant (PW1) told the court that they had cohabited with the Appellant for one year but were not married. She narrated the events of the material day as follows: Hamisi (the Appellant) came home drunk at about 5:30pm. She told him she was going to the shop to buy milk. He held her down and grabbed her by the throat. They struggled as she tried to get up. He took a stone and hit her face, grabbed her hair and hit her on the head, the ridge of the nose and the mouth.The complainant said that she screamed and neighbours rushed to her rescue. She was taken to King Fadh Hospital.

3. Nicholas Lewa (PW2), a clinical officer at King Fadh Hospital testified on behalf of Nderitu who filled the P3 form [Exhibit 2]. He told the court that Khadija was attended at the hospital on the 13/7/2016 at about 5:30pm. That she was severely injured and her clothes were covered in blood. She had a deep wound on the nose and two cut wounds on the head, which were bleeding profusely. She was also nose bleeding. The degree of injury was classified as grievous harm.

4. No. 74682 Cpl. Ben Kiplagat (PW3) was the Investigating Officer. He recalled that on 13/7/2016 while at Lamu Police Station, he received a call from Chief Haider Mohammed, who informed him that a person had beaten his wife at Wiyoni. He found a crowd escorting the suspect at the market area. The victim who was said to be the suspect’s wife was also there. She was bleeding from the injuries. PW3 stated that the victim made a report at the police station and then went to hospital.

5. The Appellant stated in his sworn defence that he returned home from work on 13/7/2016 at 5pm and found the complainant with a man in the house. That the man held Khadija by her neck and used her as a human shield. He said that the man pushed Khadija towards the wall and banged her head against it. Cross-examined, the Appellant stated that the man pushed Khadija and she was hit by the wall behind her head. He also said that she was injured on her face although he did not see her fall. He said that after being pushed, she turned around and was hit on the back of her head. He maintained that she hit the wall with her face.

6. The Appellant was found guilty and convicted. He was sentenced to 10 years imprisonment.

7. Being aggrieved by the conviction and sentence the Appellant lodged this homemade appeal on grounds, which are to the effect, that the sentence was too harsh as he was a first time offender, and that he was the only breadwinner in his family.

8. The Appellant filed written submissions on 19th February, 2019 in support of his appeal. His submissions were mostly a reiteration of his defence in the trial court. He submitted that he accepted the allegations in order to save his marriage. He argued that the sentence was too harsh and sought for leniency from the court. He submitted that he was remorseful, a first offender and the only breadwinner of his family including his aged mother. He also submitted that his wife had forgiven him.

9. The Respondent opposed the appeal in its entirety by written submissions dated 18th February 2019 and filed on the same date. During hearing, Mr. Kasyoka, learned counsel for the Respondent submitted that five of the grounds of Appeal were mitigation and that only one ground challenged the severity of the sentence. He submitted on the severity of the sentence that section 234 of the Penal Code provided for a maximum penalty of life imprisonment. He urged that sentencing was in the discretion of the trial court dependant on the circumstances of each case and therefore the sentence was proper. He asked the court to uphold the decision of the trial court.

10. This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re-evaluate and analyze it and come to its own conclusions as was laid out in the case of Okeno v R (1972) EA 32. See alsoEric Onyango Odeng’ v R [2014] eKLR.

11. In the present case, the complainant narrated the manner in which the Appellant had assaulted her by holding her down by her throat and hitting her with a stone. When the complainant tried to escape, the Appellant grabbed her by her hair and hit her twice on the head with a stone. The medical evidence in the P3 form adduced by PW2 indicated the wounds that the complainant suffered and a conclusion reached that the complainant had suffered grievous harm.

12. In the circumstances having considered the evidence on record and the sentence I find that, the prosecution adduced evidence that proved the charge against the Appellant beyond reasonable doubt. Additionally, the trial magistrate took into account everything that was argued before her and set out her reasons in the judgment.

13. In mitigation, the Appellant informed the court that he was an only child and that his father was dead and his mother was alone. He also asked the court to forgive him. The court considered his mitigation and sentenced him to 10 years imprisonment.

14. Section 234 of the Penal Code provides that any person convicted of unlawfully committing grievous harm is liable to life imprisonment. I must confirm from the outset therefore that the sentence was lawful. Further, it is trite that sentencing is at the discretion of the trial court and an appellate court shall only interfere with the sentence under specific circumstances. This principle was clearly articulated by the Court of Appeal in Benard Kimani Gacheru vs Republic [2002] eKLRthus:-

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

15. In this case, the trial magistrate in pronouncing sentence considered the Appellant’s mitigation and pronounced itself as follows:-

“The Accused says he is an only child who is with his mother because his father is deceased…..The Accused displays no remorse. Indeed in his defence he described the victim as his enemy. He used a stone to inflict injuries on her which were very serious. Indeed the degree of aggravated circumstances is demonstrated in his actions….This court also has a duty to ensure that violence against women is not seen as a normal behavior. For all the reasons the Court sentences the accused to 10(ten) years imprisonment…”

16. However, the court must also be guided by the purposes of sentencing as was considered by Mativo J in D M W v Republic Criminal Appeal No. 140 of 2012 [2015] eKLRwhen he pronounced himself as thus:-

“I have also considered the purpose of sentencing and the principles of sentencing under the common law which are:-

i. To ensure that the offender is adequately punished;

ii. To prevent crime by deterring the offender and other persons from committing similar offences;

iii. To protect the community from the offender;

iv. To promote the rehabilitation of the offender;

v. To make the offender accountable for his or her actions;

vi. To denounce the conduct of the offender

vii. To recognize the harm done to the victim of the crime and the community preventGuided by the above principles, I hereby reduce the sentence from life imprisonment to forty years. The sentence shall run from the date of conviction by the lower court.”

17. The objectives of sentencing are derived not only from common law principles but are now encapsulated in the Judiciary’s Sentencing Policy Guidelines 2014 at paragraph 4:1. The Appellant before this court appeared humbled and remorseful and pleaded with the court to reduce his sentence. Despite his remorse however, it is the view of this court that domestic violence must be discouraged by all means. A stiff sentence upon conviction sends out the correct message that such violence must be abhorred by society.

18. Guided by the above objectives and in view of the Appellant’s plea on reduction of sentence, and considering the circumstances of this case, I will temper justice with mercy and reduce his sentence to 7 years imprisonment.

19. In the premises, I uphold the judgment of the trial court and confirm the Appellant’s conviction. The Appellant shall however serve 7 years imprisonment from the date of conviction. The Appellant has 14 days right of appeal.

Orders accordingly.

Judgment delivered, dated and signed at Garsen this 26th day of June, 2019.

.................................

R. LAGAT KORIR

JUDGE

In the presence of:

The Appellant in person

…………………………………… Court Assistant

……………………………………for Appellant

…………………………………….. for the Respondent