[2019] KEHC 10829 (KLR)
The High Court found that the trial magistrate exercised her sentencing discretion properly, taking into account the prevalence of attacks on children in the area and the need for a deterrent sentence. The sentence imposed was within the statutory limits and all relevant mitigating factors were considered. There was...
Source-derived case information.
- Citation
- [2019] KEHC 10829 (KLR)
- Parties
- Applicant: Kelvin Mutwiri Mutegi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 142 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application dismissed; sentence upheld
- Judges
- BB Limo
- Legal Topics
- Assault Causing Actual Bodily Harm, Sentencing Principles, Judicial Discretion, Children Rights, Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Mutwiri Mutegi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the sentence imposed on the applicant for assault causing actual bodily harm was proper and should be reviewed to a non-custodial sentence.
- 2 Whether the trial court exercised its sentencing discretion correctly under the law.
Ratio Decidendi
The High Court found that the trial magistrate exercised her sentencing discretion properly, taking into account the prevalence of attacks on children in the area and the need for a deterrent sentence. The sentence imposed was within the statutory limits and all relevant mitigating factors were considered. There was no impropriety or irregularity in the lower court's proceedings or the sentence imposed. Therefore, there was no basis for the High Court to interfere with the sentence, and the application for review was dismissed.
Court Disposition
application dismissed; sentence upheld
Orders
- The application dated 20th September 2018 is disallowed.
- The sentence meted out against the applicant is upheld.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL REVISION NO.142 OF 2018
KELVIN MUTWIRI MUTEGI..................APPLICANT
VERSUS
REPUBLIC..............................................RESPONDENT
(Intended Appeal from Conviction and sentence of the CM'S Court in Criminal Case No. 88 of 2017 at Chuka delivered by HON. N. KAHARA (RM) on22/8/2018).
R U L I N G
1. KELVIN MUTWIRI MUTEGIthe applicant herein was charged together with two other persons with 4 counts of assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars in summary are that on 7th January 2017 the applicant and the two other persons assaulted FMN, RG, MMM and MM all in Mugure Location. They also faced alternative charges of subjecting a child to cultural rites and traditional practices that are likely to affect the child's life, health and dignity contrary to Section 14 as read with Section 20 of the Children's Act.
2. The Applicant and his co-accused denied committing the offence and the prosecution presented six witnesses to prove their case. The trial court upon putting the applicant and his co-accused on their defence found them guilty and convicted them sentencing each to serve two years imprisonment for each of the four counts. The sentences were ordered to run concurrently.
3. The applicant has now moved this court through an application dated 20th September, 2018 asking this court to review his sentence requesting that his sentences be reduced to non custodial ones. He avers that his education at Meru Technical Training College would be adversely affected by the sentence handed out against him. He also states that he was providing for her aged grandmother who would be left vulnerable if he continues serving custodial sentence.
4. This court has called the lower court file in accordance with the provisions of Sections 362 of the Criminal Procedure Code and I have perused through the proceedings thereof in order to satisfy myself on the correctness, legality or propriety of finding sentence passed against the applicant because he is not challenging his conviction. This court notes that the applicant was found guilty and convicted of the main charge of assault and the sentence prescribed under Section 251 of the Penal Code is imprisonment of upto 5 years. The learned trial Magistrate noted that due to prevalence of the attacks on children especially under the guise of traditional rites like circumcision in the area, a deterrent sentence was called for. This court takes Judicial notice of that fact and finds that the trial court exercised her discretion under Section 26 of the Penal Codewell. I find no basis to interfere with the discretion correctly given that the trial magistrate took into consideration all the relevant factors and mitigation offered.
In the premises this court having found no impropriety or irregularity in the lower court proceedings and the sentence, the application dated 20th September 2018 is disallowed. The sentence meted out against the applicant is upheld.
Dated, signed and delivered at Chuka this 22nd day of January, 2019.
R.K. LIMO
JUDGE
22/1/2019
Ruling signed, dated and delivered in open court in presence of applicant in person and Momanyi for state.
R.K. LIMO
JUDGE
22/1/2019