[2006] KEHC 2842 (KLR)
The High Court found that although bigamy is a serious felony, the appellant's advanced age, poor health, and the fact that he had already served a month in prison justified reconsideration of the custodial sentence. The trial magistrate had deferred sentencing due to uncertainty but failed to provide reasons for...
Source-derived case information.
- Citation
- [2006] KEHC 2842 (KLR)
- Parties
- Appellant: John Righ Kaguma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 179 of 2004
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Custodial sentence set aside pending consideration of a non-custodial sentence; Probation Officer's Report ordered.
- Judges
- JW Lessit, CJ Kendagor
- Legal Topics
- Bigamy, Sentencing Principles, Mitigating Factors, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Righ Kaguma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 3 years imprisonment for bigamy was harsh and excessive in the circumstances.
- 2 Whether the appellant's age, health, and reconciliation with the complainant warranted a non-custodial sentence.
Ratio Decidendi
The High Court found that although bigamy is a serious felony, the appellant's advanced age, poor health, and the fact that he had already served a month in prison justified reconsideration of the custodial sentence. The trial magistrate had deferred sentencing due to uncertainty but failed to provide reasons for the eventual sentence. The court held that the complainant was not without remedy, as civil proceedings could address the contractual aspects of the marriage. In light of these factors, the court determined that a non-custodial sentence would be more appropriate and called for a Probation Officer's Report before finalizing the sentence.
Court Disposition
Custodial sentence set aside pending consideration of a non-custodial sentence; Probation Officer's Report ordered.
Orders
- The matter to be mentioned again for Probation Officer's Report on a date to be taken in court.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 179 Of 2004
JOHN RIGH KAGUMA….…....….....….…………………………..APPELLANT
VERSUS
REPUBLIC…………………… ……………..………………....RESPONDENT
J U D G M E N T
JOHN RIGH KAGUMA was convicted of BIGAMY contrary to Section 171 of the Penal Code. He was sentenced to 3 years imprisonment on 25th March 2004. He was dissatisfied with the conviction and sentence and therefore lodged this appeal. In the intervening period, the Appellant successfully sought and obtained a bond pending his appeal on 26th April 2004.
When the appeal came up for hearing, MR. KIMANI learned counsel for the Appellant withdrew all the other grounds of appeal and sought only to pursue the appeal against sentence. Learned counsel submitted that the offence facing the Appellant was not criminal per se. He could not elaborate on what he meant by this. When prompted by the Court he opted to abandon that ground. Counsel submitted that the Appellant was 75 years old. That he had since reconciled with the Complainant in the case and was living with her. He also submitted that the Appellant was of poor health. He urged the court to grant a non-custodial sentence.
MRS. GAKOBO, learned counsel for the State submitted that even though the trial court had sentenced the Appellant to 3 years imprisonment out of the 5 years maximum imprisonment term the law provided, and even though the sentence was legal, that due to the Appellant’s age and poor health, the 3 years imprisonment ordered was harsh.
I have carefully considered this appeal. Indeed the learned counsel for the Appellant did not adduce any documentary proof to back his submission concerning the Appellant’s age and ill health. However, the Appellant was before me and I saw for myself that he is an old man, the kind I would hesitate to send to prison unless the circumstances did not allow otherwise.
The offence of BIGAMY is a felony and a serious criminal offence as opposed to what the advocate for the Appellant started by submitting in this appeal. It is however an offence that is virtually dormant in Kenya and hardly are people charged for it. That does not however make it any less serious.
In the learned trial magistrate’s observation before sentencing the Appellant, she stated;
“This matter is still not clear in my mind, in view of the fact that Accused is well advanced in age. Sentence deferred to 25. 3.04. ”
Two days later, without commenting on whether the matter was clear then in the trial court’s mind and without giving reasons, the learned trial magistrate sentenced the Appellant to 3 years imprisonment. The learned trial magistrate ought to have disclosed on record what matters were unclear to her that caused her to make a note of them in writing and to postpone the sentencing. This court does not have the benefit of that information.
When considering sentence in a case such as this case, the impact of the offence to the Complainant and the damage caused must be considered. Considering the entire evidence on record and in particular the learned trial magistrates judgment any damage which has been caused by the Appellant to the Complainant is a matter that cannot be remedied in full by a court of law. The remedy will depend with the parties, except of cause the existing contract between the Appellant and one ANNE NDUTA a subject of these proceedings which can be cancelled or revoked through civil proceedings.
Taking these factors into consideration and particularly the fact that the Complainant is not without remedy, considering the Appellant’s age and the fact that he served a whole month in prison, I am of the view that a non-custodial sentence would be appropriate. I will call for a Probation Officer’s Reportbefore considering which sentence to impose.
This matter be mentioned again for Probation Officer’s Report on a date to be taken in court.
Dated at Nairobi this 5th day of April, 2006.
LESIIT
JUDGE
Read, signed and delivered in the presence of;
Appellant - present
Mr. Kimani for the Appellant
Mrs. Gakobo for State
Huka: Court clerk
LESIIT, J.
JUDGE