[2013] KEHC 1294 (KLR)
The court found that while the sentence of 20 years imprisonment was within the law for the offence of grievous harm under Section 234 of the Penal Code, it was excessive in the circumstances of the case. The court considered the seriousness of the injuries, the fact that the complainant's hand was maimed, and the...
Source-derived case information.
- Citation
- [2013] KEHC 1294 (KLR)
- Parties
- Appellant: Jeremiah Mwithalie; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 124 of 2009
- Procedural Posture
- Criminal Appeal / Judgment on Sentence
- Outcome
- Appeal on sentence allowed in part; sentence reduced from 20 years to 14 years imprisonment.
- Judges
- AN Makau
- Legal Topics
- Sentencing Principles, Grievous Harm, Penal Code Section 234, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Mwithalie
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Sentence
Legal Issues
- 1 Whether the sentence of 20 years imprisonment for grievous harm under Section 234 of the Penal Code was manifestly excessive in the circumstances.
- 2 Whether the trial court properly exercised its discretion in sentencing the appellant.
Ratio Decidendi
The court found that while the sentence of 20 years imprisonment was within the law for the offence of grievous harm under Section 234 of the Penal Code, it was excessive in the circumstances of the case. The court considered the seriousness of the injuries, the fact that the complainant's hand was maimed, and the absence of mitigation by the appellant at trial. However, the court exercised its discretion to reduce the sentence to 14 years, holding that this was a more appropriate punishment given the facts and the law. The appeal on sentence was therefore allowed to the extent of reducing the sentence from 20 years to 14 years imprisonment, effective from the date of conviction.
Court Disposition
Appeal on sentence allowed in part; sentence reduced from 20 years to 14 years imprisonment.
Orders
- The sentence of 20 years imprisonment imposed on the appellant is set aside.
- The appellant shall serve 14 years imprisonment with effect from the date of conviction.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL APPEAL NO. 124 OF 2009
JEREMIAH MWITHALIE …….……..…………..APPELLANT
VERSUS
REPUBLIC …………………..…………………RESPONDENT
(From original conviction and sentence in criminal case No.3162 of 2008 of the Principal Magistrate’s Court at Maua)
J U D G M E N T
The appellant JEREMIAH MWITHALIE was charged with an offence of grievous harm contrary to Section 234 of the Penal Code.
The appellant pleaded not guilty to the charge. Upon hearing of the case the trial court convicted the appellant and sentenced him to serve 20 years imprisonment.
The appellant being aggrieved by the conviction and sentence preferred this appeal. When the appeal came up for hearing the appellant abandoned the appeal against conviction and pursued the appeal against sentence. The appellant is seeking his sentence to be reduced on the grounds set out in his petition of appeal being as follows:-
1. That, the learned trial Magistrate erred in law in failing to observe that Section 72(3) of the Constitution was flouted.
2. That, the learned trial Magistrate erred in law when he failed to comply with Section 198(1) of the CPC Laws of Kenya.
3. That the learned trial Magistrate erred in law and facts in failing to summon vital witnesses mentioned in the trial case for a just decision to be reached.
4. That the trial magistrate erred in law and facts in failing to observe that the prosecution witnesses gave contradictory and conflicting testimonies.
5. That, the learned trial Magistrate erred in failing to observe the that the prosecution witnesses’ did not bear fruits hence dismissing my unsworn defence without giving any cogent reasons for the same.
6. that, the grounds herein have been drafted without the certified copies of the lower court proceedings, I pray to be served with the same to enable me construct more firm grounds of appeal.
The appellant did not in this appeal challenge the conviction but sentence which he averred was manifestly excessive.
Mr. Ongige, learned State counsel opposed appellant’s appeal against sentence averring the injuries inflicted upon the complainant were serious and that the sentence provided for such an offence is life sentence. He submitted the sentence of 20 years was lenient.
S Section 234 of the Penal Code provides:-
234. Any person who unlawfully does grievous harm to another
is guilty of a felony and is liable to imprisonment for life.
The appellant caused serious injuries to the complainant. The lower court noted the injured hand was lame. The degree of injury sustained by the complainant according to the P3 form(exhibit 1) is maim.
The appellant refused to mitigate at the trial court. On appeal he asked this court to reduce the sentence. I have considered the facts of the case and the relevant provision of the law and find that the sentence imposed was within the law though excessive in the circumstances. The sentence imposed upon the appellant is therefore reduced from 20 years to 14 years. The appellant to serve 14 years with effect from the date of conviction.
In the result appeal on sentence succeeds to that extent.
J. A. MAKAU
JUDGE
DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF OCTOBER, 2013
Delivered in open court in the presence of:
1. Mr. Ongige for the State.
J. A. MAKAU
JUDGE