[2022] KEHC 12880 (KLR)

Kamenya v Republic (Miscellaneous Criminal Application E025 of 2021) [2022] KEHC 12880 (KLR) (9 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12880 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application E025 of 2021

LN Mutende, J

September 9, 2022

Between

Peter Mwangi Kamenya

Applicant

and

Republic

Respondent

Ruling

1. Upon arraignment, Peter Mwangi Kamenya, the applicant, was charged with the offence of attempted murder contrary to section 220 of thePenal Code. Particulars being that on the 30th day of July, 2011, jointly with another, they assaulted Francis Kamau Waicera hence causing his death.

2. Having been subjected to full trial, he was found guilty, convicted and sentenced to serve a three (3) years imprisonment.

3. Through an undated application filed herein on February 11, 2021, the applicant seeks review of sentence. The application is premised on grounds that the applicant is a first offender; he is the sole bread winner of his family; and, he has children in school that require school fees.

4. At the hearing of the application, the applicant urged that one of his children is a candidate, and, he (applicant) is remaining with three (3) months to complete his sentence, therefore, he seeks to be released.

5. In response, the state/respondent through learned counsel, Ms Maingi, argued that the sentence was too lenient considering circumstances of the offence. She opposed the application.

6. I have duly considered rival arguments by both the applicant and respondent. In passing the sentence, the court considered the applicant’s mitigation and in particular, his age being 57 years, and, trauma suffered by the victim.

7. Section 220 of thePenal Code provides thus:“Any person who - (a) attempts unlawfully to cause the death of another; or (b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.”

8. In the case of Bernard Kimani Gacheru v Republic [2002] eKLR The Court of Appeal stated that:“…It is now settled law, following several authorities by thiscourtand by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate courtmight itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

9. The position was stated succinctly by the Court of Appeal for East Africa in the case of Ogola s/o Owoura v Reginum[1954] 21 270 as follows:-“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. Thecourt does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v R., [1950] 18 EACA 147…”

10. Looking at the sentence provided by statute, the sentence meted out was within law and indeed lenient. The trial court having acted on proper principles and even having passed a lenient sentence in the circumstances, this court cannot interfere with it.

11. The upshot of above is that the application is devoid of merit. Accordingly, it is dismissed.

12. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 9TH DAY OF SEPTEMBER,2022. L. MUTENDEJUDGE