[2014] KEHC 6122 (KLR)
The court found that the sentence of ten years imprisonment imposed on the appellant was not harsh, as it was below the statutory maximum of fourteen years for the offence of unnatural offence under section 162(6) of the Penal Code. However, considering the appellant's personal circumstances, the period already...
Source-derived case information.
- Citation
- [2014] KEHC 6122 (KLR)
- Parties
- Appellant: John Wachira Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 56 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal dismissed; sentence revised.
- Legal Topics
- Unnatural Offences, Sentencing Principles, Revision Jurisdiction
- 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 Wachira Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of ten years imprisonment for the offence of unnatural offence under section 162(6) of the Penal Code was harsh or excessive.
- 2 Whether the conviction and sentence should be quashed or revised.
Ratio Decidendi
The court found that the sentence of ten years imprisonment imposed on the appellant was not harsh, as it was below the statutory maximum of fourteen years for the offence of unnatural offence under section 162(6) of the Penal Code. However, considering the appellant's personal circumstances, the period already spent in custody, and the nature of the offence, the court exercised its revisionary jurisdiction to reduce the sentence to five years imprisonment from 26th February 2009 and ordered the appellant's immediate release unless otherwise lawfully held, to enable him to seek professional help.
Court Disposition
Appeal dismissed; sentence revised.
Orders
- The appeal is dismissed.
- The sentence is revised to five years imprisonment from 26th February 2009.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal No. 56 Of 2009
John Wachira Mwangi.......................Appellant
Versus
Republic …......................................RESPONDENT
(arising from the judgment of Hon. L. Mbugua Ag. Principal
Magistrate Karatina in Criminal Case No. 385 of 2008)
JUDGMENT
The Appellant was charged with the offence of unnatural offence contrary to section 162(6) of the Penal Code the particulars of which were that on 8th day of July 2008 at Iriani Location in Nyeri District within Central Province had carnal knowledge of a sheep which was the property of ESTHER WANGARE KARIITHI.
He pleaded not guilty, was tried convicted and sentenced to serve Ten (10) imprisonment. Being dissatisfied with the said sentence filed an appeal against the same and prayed for lesser severe sentence a probation order in respect of section 4 of Cap 64 and quashing the conviction and setting aside the sentence.
When the appeal came up for hearing before me the Appellant who was unrepresented submitted that he would like the court to look at the sentence while Mr. Njue submitted that the Appellant was sentenced to Ten (10) years.
It should be noted that the Appellant was convicted under section 162(6) where the lawful sentence provided for is an imprisonment for fourteen (14) years and the Appellant was sentenced to Ten (10) years only.
I therefore find that the said sentence was not harsh and find no merit for the appeal herein which I hereby dismiss.
Having dismissed the appeal herein I am of the considered opinion that the Appellant ought to benefit from the Revision jurisdiction of this court. I have taken into account his submission that he has a wife and two children and has been in custody since 11th July 2008 and the nature of offence he was charged with and the evidence of P.W.2 wherein he said that the Appellant told him that he was found when he was about to sleep with the sheep and P.W.4 who stated that he saw one sheep shaking and a man on top of it.
I would therefore revise the sentence herein to five (5) years imprisonment from 26th February 2009 and order that the Appellant be set free forthwith unless otherwise lawfully held to enable him seek professional help on his sexual orientation.
Dated, signed and delivered at Nyeri this 28th day of March 2014.
J. WAKIAGA
JUDGE
Court: Judgment is read in open court in the presence of the appellant and in the absence of the state.
J. WAKIAGA
JUDGE