[2019] KEHC 4982 (KLR)
The appellate court found that while the trial magistrate considered the gravity of the offence, the appellant's conduct, and the pain suffered by the complainant, the sentence of ten years imprisonment was harsh when compared to sentences currently being passed for similar offences. There was no misdirection or...
Source-derived case information.
- Citation
- [2019] KEHC 4982 (KLR)
- Parties
- Appellant: Julius Muimi Wambua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 13 of 2018
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- sentence reduced on appeal
- Judges
- LN Mutende
- Legal Topics
- Sentencing Principles, Grievous Harm, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Muimi Wambua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of ten years imprisonment for grievous harm was manifestly excessive in the circumstances.
- 2 Whether the trial court applied correct sentencing principles and considered relevant mitigating factors.
Ratio Decidendi
The appellate court found that while the trial magistrate considered the gravity of the offence, the appellant's conduct, and the pain suffered by the complainant, the sentence of ten years imprisonment was harsh when compared to sentences currently being passed for similar offences. There was no misdirection or error in principle by the trial court, but the appellate court exercised its discretion to reduce the sentence to five years imprisonment, effective from the original sentencing date, in light of prevailing sentencing trends and the mitigating circumstances presented by the appellant.
Court Disposition
sentence reduced on appeal
Orders
- The sentence of ten years imprisonment is set aside and substituted with five years imprisonment, effective from the date of sentencing by the trial court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL APPEAL NO. 13 OF 2018
JULIUS MUIMI WAMBUA.....................APPELLANT
VERSUS
REPUBLIC..............................................RESPONDENT
(Being an Appeal from Original Sentence inKyuso Principal Magistrate’s Court Criminal Case No. 209 of 2015byHon. M. Nasimiyu (SRM)on12/03/18)
J U D G M E N T
1. Julius Muimi Wambua,the Appellant was arraigned before Court having been charged with the offence of Grievous Harmcontrary to Section 234of the Penal Code.Particulars of the offence were that on the 30thday of June, 2017at Ndunguni Sub-Location, Ngomeni Locationin Kyuso Sub-Countywithin Kitui Countytogether with others not before Court, willfully and unlawfully assaulted Rebecca Nyiva Omarthereby occasioning her grievous harm.
2. Having been taken through full trial he was convicted and sentenced to serve ten (10) years imprisonment.
3. Aggrieved, the Appellant now mitigates on sentence. He urged the Court to reduce the sentence to a lesser period.
4. The State through learned State Counsel Mr. Mutegiopposed the Appeal. He urged that the sentence meted out was appropriate.
5. Principles upon which an Appellate Court will interfere with sentence of a trial Court were set out in the case of Ogolla s/o Owour vs. Republic (1954) EA CA 270where the Court stated as follows:
“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)." See also In Omuse - v- R (Supra) while in the case of Shadrack Kipkoech Kogo –vs- R.,Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:- “ sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or factor or that a wrong principle was applied or that short of these, the sentence itself is so harsh and excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R.(1989 KLR 306).”
6. The sentence provided for the offence is upto life imprisonment.Factors to be considered in sentencing include the circumstances in which the offence was committed, whether the Accused was a first offender, what caused him to commit the offence and the gravity of the offence.
7. The Appellant was given an opportunity to mitigate. He pleaded for leniency. He explained that he was the eldest son. His mother is insane and his parents are separated and that he is the sole breadwinner.
8. In sentencing, the learned trial Magistrate took into consideration the gravity of the offence, the conduct of the Appellant who was merciless, the nature of injuries inflicted and the pain suffered by the Complainant.
9. There was no misdirection on the part of the trial Court but comparing with sentences passed by Courts today, in the circumstances ten (10) years imprisonment was harsh.
10. Therefore, I set aside the sentence meted out and substitute it with five (5) years imprisonmentto be effective from the date of sentencing by the trial Court.
11. It is so ordered.
Dated, Signed and Delivered at Kitui this 10th day of July, 2019.
L. N. MUTENDE
JUDGE