[2017] KEHC 538 (KLR)
The court found that, given the circumstances of the offence, the nature of the injuries, and the recommendation of the social inquiry report, it was just to order that the sentences for the two counts of assault run concurrently rather than consecutively. The trial magistrate's order for consecutive sentences was...
Source-derived case information.
- Citation
- [2017] KEHC 538 (KLR)
- Parties
- Appellant: Joshua Otieno Olwalo; Respondent: State
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 43 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed; sentences to run concurrently.
- Judges
- DO Ohungo
- Legal Topics
- Assault, Sentencing, Concurrent Sentences, Appeals, Harm Classification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Otieno Olwalo
Appellant
State
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in ordering the sentences to run consecutively instead of concurrently.
- 2 Whether the sentence imposed was appropriate considering the circumstances and the social inquiry report.
Ratio Decidendi
The court found that, given the circumstances of the offence, the nature of the injuries, and the recommendation of the social inquiry report, it was just to order that the sentences for the two counts of assault run concurrently rather than consecutively. The trial magistrate's order for consecutive sentences was set aside and substituted with an order for concurrent sentences, resulting in a consolidated sentence of two years' imprisonment. The court emphasized the importance of proportionality in sentencing and the relevance of social inquiry reports in determining the appropriate mode of serving a sentence.
Court Disposition
Appeal partially allowed; sentences to run concurrently.
Orders
- The order for sentences to run consecutively is set aside.
- The two-year sentences on each count shall run concurrently.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CRIMINAL APPEAL NO.43 OF 2016
BETWEEN
JOSHUA OTIENO OLWALO........................APPELLANT
AND
STATE.......................................................... RESPONDENT
(An appeal from original conviction and sentence of the SRM’s Court at Ndhiwa in
Criminal Case NO.491 of 2014 dated 12. 06. 2015 – Hon. B.R. KIPYEGON,RM)
JUDGMENT
1. The appellant JOSHUA OTIENO OLWALOwas convicted on two charges of assault contrary to Section 251 of the PC and sentenced to serve 2 years on each count, which sentences were to run consecutively.
2. The appellant was convicted of assaulting I A Oand F O on 25/10/14 in NDHIWA. The appellant denied the charges.
3. I (PW1) saw the accused armed with a panga and pointing at her, demanding that she explains something. She got scared, ran inside her house and locked herself therein. However the appellant cut the door, gained access and picked a walking stick which he used to hit F O (a boy aged 1 year 5 months) on the leg. The accused then cut PW1 on the head – she bled, fell down and lost consciousness. She woke up at MAGINA hospital before eventually being transferred to NDHIWA hospital.
4. The medical examination found that F had swollen feet and was crying, and his injuries were classified as harm.
5. I had a crushed wound on the posterior of the left head and a swelling on the right part of the eye region – the wound was stitched and her injury was also classified as harm – the P3 form were produced in support.
6. The appellant in his unsworn testimony claimed that Phillip (PW1’s husband) had accused him of being a thief and warned him not to pass through his homestead. Phillip also threatened to cut him with a panga and a struggle ensued between them. I rushed to the scene while carrying a baby and a stick which she used to hit the appellant. The couple then chased after him, and in the process I fell down with the baby in her hands.
7. The trial magistrate upon considering the evidence rejected the defence as not being plausible, pointing out that the incident occurred in broad daylight, and the appellant was deliberately avoiding an explanation about his conduct and stated he had-
“assaulted a mother and a toddler.”
8. In mitigation the appellant alluded on his social obligations of paying school fees for school going students.
9. The trial magistrate called for a pre-sentence report confirming that the appellant had no criminal tendencies and the report recommended a non-custodial sentence. The trial magistrate considered social inquiry report and sentenced him to pay a fine of Kshs.20,000/= in default to serve 2 years imprisonment on each count to run consecutively.
10. In his petition of appeal, the appellant urged the court to order that the sentence runs concurrently instead of consecutive period.
11. MR. OLUOCH on behalf of the State opposed the appeal saying the only concession is for the sentences to run concurrently.
12. I think there isn’t much to belabour – taking into consideration the circumstances under which the offence was committed, the nature of injuries inflicted and the social inquiry report, a consolidated sentence of two years imprisonment would be fair. It is only to that extent that I allow the appeal by setting aside the order for consecutively running of sentence and substitute it with an order that the 2 year sentence run concurrently.
Delivered and dated this 15th day of May, 2017 at Homa Bay
H.A. OMONDI
JUDGE