[2004] KEHC 1730 (KLR)
The court held that section 220(a) of the Penal Code provides for life imprisonment as the maximum sentence for attempted murder, but does not make it mandatory. The sentencing court has discretion to impose a lesser sentence after considering the circumstances of the case, including mitigation and the age of the...
Source-derived case information.
- Citation
- [2004] KEHC 1730 (KLR)
- Parties
- Applicant: Jason Nyakundi; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 106 of 2003
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- K Bauni
- Legal Topics
- Sentence Revision, Attempted Murder, Judicial Discretion in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jason Nyakundi
Applicant
Attorney General
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence of three years imprisonment for attempted murder under section 220(a) of the Penal Code was unlawful or irregular.
- 2 Whether the court had discretion to impose a sentence less than life imprisonment under section 220(a) of the Penal Code.
- 3 Whether the application challenging the presidential amnesty and subsequent release of the convict was properly before the court.
Ratio Decidendi
The court held that section 220(a) of the Penal Code provides for life imprisonment as the maximum sentence for attempted murder, but does not make it mandatory. The sentencing court has discretion to impose a lesser sentence after considering the circumstances of the case, including mitigation and the age of the accused. In this case, the trial court considered the seriousness of the offence, the mitigation, and the advanced age of the accused (80 years), and imposed a sentence of three years imprisonment. The High Court, on appeal, upheld this sentence. The application for revision was therefore without merit, as the sentence was neither unlawful nor irregular. The court further held...
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MISC.APPLICATION NO.106 OF 2003
JASON NYAKUNDI …………………………………………………….. APPLICANT
VERSUS
ATTORNEY GENERAL ……………………………………………… RESPONDENT
RULING:
One JASON NYAKUNDI BOSIRE has brought an application under s.364 C.P.C. asking the court to revise the sentence of Senior Resident Magistrate in Kisii CMCCR No.132 of 2000. In that case one JOHN ICHARIA BOSIRE was charged with the offence of attempted murder c/s 220(a) Penal Code. He was found guilty, convicted and sentenced to three years imprisonment. He appealed in Kisii HCCRA No.37 of 2002. The High Court dismissed the appeal and upheld the conviction and confirmed the sentence.
The applicant depones he is a son of the appellant. He was the complainant. His father the accused then had laced some food with poison and gave it to him and his brother. His brother died. He deponed that the sentence of 3 years was very limit and the convict has vowed to kill him when he leave prison. S.220(a) of Penal Code provides that any person found guilty of attempted murder “is guilty of a felony and liable to life imprisonment.”
From the affidavits of the applicant and numerous correspondences it seems there is a misunderstanding of the section and he believes that the only sentence one can get when found guilty under that section is life imprisonment. That is not so.
Life imprisonment is the maximum sentence. The provisions gives discretion to the court to award any less appropriate sentence. The court takes into consideration the circumstances of each case and decide the sentence to award. In this case the court noted the offence was serious. It took into account the mitigation of the accused and his age and awarded 3 years imprisonment.
The sentence was not unlawful or irregular as the court has discretion to impose even a lesser sentence. I feel that the court properly directed itself when it decided on the sentence. 3 years may look few when one considers the maximum sentence is life imprisonment. However it is stated that the accused was 80 years old then. Three years imprisonment is not far from life imprisonment for a man of that age.
In affidavit filed on 30th March 2004 the applicant deponed that the accused was released on 12. 12. 03 through presidential amnesty and he seemed to challenge that release. This is not the right form to bring such a challenge. I am sure there were good reasons why the president decided to have the accused released.
Further applicant depones that upon release the accused wanted to kill him. If such a thing happened he should report to the relevant authorities to take appropriate action.
I find application has no merit. The same is dismissed.
KABURU BAUNI
JUDGE
Delivered on 15th May 2004. Mr. Nyakongo for applicant.
KABURU BAUNI
JUDGE