[2010] KEHC 44 (KLR)
The trial court imposed a sentence of ten years imprisonment for the offence of assault causing actual bodily harm, which exceeds the statutory maximum of five years under Section 251 of the Penal Code. This rendered the sentence illegal. The appellate court set aside the illegal sentence and, exercising its...
Source-derived case information.
- Citation
- [2010] KEHC 44 (KLR)
- Parties
- Appellant: John Ngotho Gichuiri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 126 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- MJA Emukule
- Legal Topics
- Assault, Sentencing Illegality, Plea of Guilty, Mitigation, Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Ngotho Gichuiri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was legal under the Penal Code.
- 2 Whether the appellant's mitigation and medical condition warranted a reduction of sentence.
Ratio Decidendi
The trial court imposed a sentence of ten years imprisonment for the offence of assault causing actual bodily harm, which exceeds the statutory maximum of five years under Section 251 of the Penal Code. This rendered the sentence illegal. The appellate court set aside the illegal sentence and, exercising its discretion under Section 354(3)(b) of the Criminal Procedure Code, imposed a lawful sentence of three years imprisonment, taking into account the appellant's plea of guilty, remorse, first offender status, and unsubstantiated claim of epilepsy. The court found no basis to further reduce the sentence based on intoxication or the medical condition, as these were not raised at trial nor...
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of ten years imprisonment imposed by the trial court is set aside.
- The appellant is sentenced to three years imprisonment to run from the date of conviction.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 126 OF 2010
(From original conviction and sentence in Criminal Case No. 2212 of 2008 of the Principal Magistrate'sCourt at Nyahururu - H. M. Nyaberi {R.M.} dated 9th January, 2009)
JOHN NGOTHO GICHUIRI……………………………......……………………………..APPELLANT
VERSUS
REPUBLIC………………………………………………...……………………………..RESPONDENT
JUDGMENT
The Appellant was charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code,(Cap. 63, Laws of Kenya). He pleaded guilty to the charge and was convicted on his own plea of guilty.
The facts were then read and explained to the Appellant, and when the trial court asked the Appellant whether the facts were true, the Appellant said"all the facts are true." The court confirmed the plea of guilty.
In his mitigation the Appellant told the court that the complainant was his brother, he was drunk on the material day, and pleaded for leniency. The prosecution stated that the Appellant was a first offender, and the court observed that he was remorseful, and sentenced him to ten(10) years imprisonment.
In his appeal to this court the Appellant submitted that he suffers from epilepsy and that no one comes to his aid when he suffers a seizure and falls down, and that consequently he is suffering greatly in prison.
Section 348 of the Criminal Procedure Code,(Cap. 75, Laws of Kenya) provides that a person who is convicted on his own plea of guilty may appeal only on two grounds, the legality and extent of sentence.
The maximum sentence for a person who is charged and is on the evidence found guilty, or pleads guilty to the offence of assault occasioning actual bodily harm is imprisonment for five years. The sentence of ten (10) years imposed upon the Appellant was therefore illegal, and the same is set aside.
The Appellant pleads that he was drunk when he committed the offence but it does not appear that he was so drunk to the extent that he did not know what he was doing, or that what he did was wrong(i.e. he was insane). He remembers with remorse his act, and pleaded for leniency. He did not plead his condition of epilepsy at his trial so that the court would have made inquiry into it. Other than his submission to this court, there is no other information about his epileptic condition. It may, it may not be so. But whatever, I would give him the benefit of doubt.
In lieu therefore of the sentence of ten (10) years(which I have already set aside above), I would in exercise of the discretion conferred upon this court by Section 354(3) (b) of the Criminal Procedure Code, I sentence the Appellant to three (3) years imprisonment to run from the date of his conviction.
There shall be orders accordingly.
Dated, delivered and signed at Nakuru this 15th day of October 2010
M. J. ANYARA EMUKULE
JUDGE