[2012] KEHC 912 (KLR)
The High Court found that the trial magistrate had considered the appellant's mitigation, including his status as a first offender and his family circumstances, but also properly weighed the seriousness of the offence. However, the appellate court, exercising its own discretion, found that a sentence of seven years...
Source-derived case information.
- Citation
- [2012] KEHC 912 (KLR)
- Parties
- Appellant: Joseph Sirere Timaiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 278 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- RPV Wendoh
- Legal Topics
- Sentencing Principles, Grievous Harm, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Sirere Timaiyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh and excessive in the circumstances.
- 2 Whether the trial court failed to consider the appellant's mitigation before sentencing.
Ratio Decidendi
The High Court found that the trial magistrate had considered the appellant's mitigation, including his status as a first offender and his family circumstances, but also properly weighed the seriousness of the offence. However, the appellate court, exercising its own discretion, found that a sentence of seven years was excessive in the circumstances, particularly given the familial relationship between the appellant and the complainant and the mitigating factors presented. The court therefore set aside the seven-year sentence and substituted it with a five-year term of imprisonment.
Court Disposition
sentence varied
Orders
- The sentence of seven (7) years imprisonment is set aside and substituted with five (5) years imprisonment.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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JOSEPH SIRERE TIMAIYO …............................................ APPELLANT
VERSUS
REPUBLIC …...................................................................... RESPONDENT
(Being an appeal against sentence imposed by Hon. C.A. Nyakundi, RM Narok Law Courts on 15/11/2011)
JUDGMENT
The appellant herein, Joseph Sirere Timaiyo, was convicted for the offence of unlawfully causing grievous harm to Shabara Ole Manyara contrary to Section 234of the Penal Code.Upon conviction he was sentenced to serve seven (7) years imprisonment.
Aggrieved by the sentence, the appellant has preferred an appeal to this court on the grounds that the learned trial magistrate failed to consider his mitigation and consequently imposed a harsh and excessive sentence.
The appellants grounds of mitigation are that he is a father of seven children who are currently attending school and require his financial support. He also provides financial support to his wife who is paralyzed and require regular treatment. He is 51 years old and the trial court did not consider a noncustodial sentence in the circumstances.
Mr. Marete, learned counsel for the respondent opposed the appeal. He stated that the appellant had the intention to cause grievous harm and the sentence therefor was fair.
Under Section 234of the Penal Codeany person found guilty of the offence of causing grievous harm “is liable to imprisonment for life”.This has been interpreted to mean that the prescribed sentence is only the maximum penalty. See Opaya v Uganda (1967) E.A. 752.
In this case, the trial court exercised its discretion and imposed a sentence of seven years imprisonment. Before passing the sentence the trial court considered the appellant's mitigation and observed as follows:-
“I have considered the mitigation, and I have also considered that accused is a first offender. However the offence is serious and ought to be discouraged”
The trial magistrate applied his mind carefully in reaching his decision. He considered the appellant's grounds of mitigation and the seriousness of the offence before imposing the sentence. Having perused the medical report and the proceedings of the lower court which state the injuries sustained, I do agree with the trial magistrate that the offence is serious.
For this court to interfere with the discretion exercised by the trial court in sentencing, it has to be satisfied that the court acted upon some wrong principle or overlooked some material factors. The appellant was treated as a first offender. I take his mitigation into account that he has a family who depend on him. I also do take into account that the complainant was his own brother and this dispute arose over land issues which is unfortunate. Having taken all these facts into account and in exercise of this court’s discretion, I hereby set aside the sentence of seven (7) years imprisonment and substitute it with five (5) years imprisonment. It is so ordered.
DATED and DELIVERED this 23rd day of November, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
The Appellant – in person
Mr. Maretefor Respondent.
Kennedy – Court Clerk