[2017] KEHC 2016 (KLR)
The court found that the appellant was a habitual assaulter of his own mother, having been convicted and sentenced for similar offences twice before. The latest assault was particularly serious, involving throttling, hitting, and causing the loss of a tooth. The court held that the maximum sentence of 5 years...
Source-derived case information.
- Citation
- [2017] KEHC 2016 (KLR)
- Parties
- Appellant: John Waithanje Gichuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 66 of 2016
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal against sentence dismissed; conviction and sentence upheld.
- Judges
- DW Mbuteti
- Legal Topics
- Assault Causing Actual Bodily Harm, Sentencing Principles, Habitual Offender, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Waithanje Gichuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 5 years imprisonment for assault causing actual bodily harm was excessive or unjustified.
- 2 Whether reconciliation with the complainant (the appellant's mother) should mitigate the sentence.
Ratio Decidendi
The court found that the appellant was a habitual assaulter of his own mother, having been convicted and sentenced for similar offences twice before. The latest assault was particularly serious, involving throttling, hitting, and causing the loss of a tooth. The court held that the maximum sentence of 5 years imprisonment was warranted in the circumstances, especially given the appellant's repeated offending and the aggravating factors. The alleged reconciliation with the complainant was not substantiated by her presence or testimony in court. The appeal against sentence was therefore dismissed as lacking merit.
Court Disposition
Appeal against sentence dismissed; conviction and sentence upheld.
Orders
- The appeal against sentence is dismissed.
- The conviction and sentence of 5 years imprisonment are upheld.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO 66 OF 2016
(Appeal from conviction and sentence in Kangema PM Criminal Case No 120 of 2016 – D M Kivuti, SRM)
JOHN WAITHANJE GICHUKI……………........…APPELLANT
VERSUS
REPUBLIC …………….……………..................RESPONDENT
J U D G M E N T
1. The Appellant, John Waithanje Gichuki, was convicted after trial of assault causing actual bodily harm contrary to section 251 of the Penal Code. It was alleged in the charge that on 25/10/2015 at Karwathe Village in Kangema Sub-County within Murang’a County, he unlawfully assaulted one Annah Wanjiku Waithandi and thereby occasioned her actual bodily harm. He was sentenced to 5 years imprisonment. He has appealed against both conviction and sentence.
2. On 02/10/2017 when the appeal came up for hearing the Appellant informed the court that he was satisfied with the conviction and wished to argue only the appeal against sentence. His appeal against conviction is therefore deemed abandoned.
3. Regarding sentence, the Appellant stated that the Complainant was his own mother and that he has since reconciled with her; and further, that she regularly visits him in prison. The lady was not in court to confirm this.
4. Learned prosecution counsel submitted that though the Appellant was awarded the maximum sentence provided by the law for the offence, he richly deserved the same for the following reasons –
(a) This was the Appellant’s third assault upon his own mother. For the first assault he got 2 years imprisonment and for the second one he got one year imprisonment.
(b) For this third assault he throttled her, hit her on the left thorax region, and she lost a tooth in the assault.
5. The Appellant admitted before this court these previous assaults of his own mother and the attendant convictions and sentences.
6. The Appellant is obviously a habitual assaulter of his own mother. In this latest assault he was lucky he was not charged with causing her grievous harm as she lost a tooth.
7. One can only hope that the sentence he is now serving will be long enough for him to reflect on his life and ways, and be weaned of the drugs that appear to lead him astray - as found in the probation report filed before the trial court.
8. As for the appeal against sentence, I find no merit in it at all. It is hereby dismissed. His appeal against sentence having been abandoned, the entire appeal is hereby dismissed. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 17TH DAY OF NOVEMBER 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 17TH DAY OF NOVEMBER 2017