[2010] KEHC 4011 (KLR)
The court found no evidence to support the appellant's claim of provocation by the complainant. The assault was unprovoked and followed a dispute over change for a payment. However, considering the appellant has a baby, the court exercised its discretion to reduce the sentence to a term that would secure her...
Source-derived case information.
- Citation
- [2010] KEHC 4011 (KLR)
- Parties
- Appellant: Joyce Chepchirchir Terer; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 222 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Sentence reduced to secure immediate release; appellant to be released forthwith unless otherwise lawfully held.
- Legal Topics
- Grievous Harm, Sentencing, Provocation, Possession of Changaa
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Chepchirchir Terer
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for causing grievous harm was excessive and should be reduced.
- 2 Whether there was provocation by the complainant that could mitigate the appellant's sentence.
Ratio Decidendi
The court found no evidence to support the appellant's claim of provocation by the complainant. The assault was unprovoked and followed a dispute over change for a payment. However, considering the appellant has a baby, the court exercised its discretion to reduce the sentence to a term that would secure her immediate release, balancing the interests of justice with compassion for her circumstances. The appeal against conviction was abandoned, and only the sentence was reviewed and reduced accordingly.
Court Disposition
Sentence reduced to secure immediate release; appellant to be released forthwith unless otherwise lawfully held.
Orders
- The appellant's sentence is reduced to a term that secures her immediate release.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 222 of 2009
JOYCE CHEPCHRICHIR TERER…..………..APPELLANT
VERSUS
REPUBLIC……………………………………RESPONDENT
JUDGMENT
JOYCE CHEPCHIRCHIR TERER, the appellant was charged with causing grievous harm contrary to Section 234 of Penal Code. The particulars of the charge against her were that on 6th May 2008 at Ogilgei Trading Centre in Njoro in Nakuru District of Rift Valley Province she unlawfully deed grievous harm to Charles Kipkurui Too. She was in count two charged with being in possession of changaa contrary to Section 3(1) as read with Section 4(1) of the Changaa Prohibition Act Cap 70 of the Laws of Kenya. She pleaded guilty to count two and was fined Kshs.5,000/- and in default three months imprisonment. She pleaded not guilty to the charge in count one but after trial she was convicted and sentenced to two years imprisonment. This appeal is against the conviction and sentenced in count one.
At the hearing the appellant abandoned the appeal against conviction and pleaded for the reduction of the sentence. She claimed that the complainant went with a panga to her home and provoked her into assaulting him.
I have considered these submissions. The appellant is not being candid to the court. There is nothing in the record to show that the complainant went to her home with a panga and/or that he provoked her into assaulting him. What happened is that the complainant gave her a Kshs.1,000/- note in settlement of his changaa bill of Kshs.40/-. Instead of giving him change, she, for no apparent reason, poured hot porridge on him after her husband had knocked him down. Alleging non-existent provocation is not help. However, because she has a baby, I reduce her imprisonment to such a term as will secure her immediate release. She shall therefore be released forthwith unless otherwise lawfully held.
DATED and delivered this 28th day of January, 2010.
D. K. MARAGA
JUDGE.