[2017] KEHC 3353 (KLR)
The court found that the applicant was a first offender who had provided strong mitigation and that the injury caused was classified as harm, not a more serious injury. The court held that imprisonment should be reserved for more serious or repeat offenders and that the applicant did not fall into these categories....
Source-derived case information.
- Citation
- [2017] KEHC 3353 (KLR)
- Parties
- Applicant: Kenga Ngala Mwagandi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 32 of 2017
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- sentence revised; applicant released
- Legal Topics
- Sentencing Revision, Assault Actual Bodily Harm, Mitigation, First Offender, Penal Code Section 251
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenga Ngala Mwagandi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the sentence of one year imprisonment without the option of a fine was appropriate for a first offender convicted of assault causing actual bodily harm.
- 2 Whether the court should revise the sentence in light of the applicant's mitigation and circumstances.
Ratio Decidendi
The court found that the applicant was a first offender who had provided strong mitigation and that the injury caused was classified as harm, not a more serious injury. The court held that imprisonment should be reserved for more serious or repeat offenders and that the applicant did not fall into these categories. Having served nearly five months in prison, the court deemed this sufficient punishment and substituted the original sentence with imprisonment for the period already served, setting the applicant at liberty unless otherwise lawfully held.
Court Disposition
sentence revised; applicant released
Orders
- The sentence of one year imprisonment is set aside and substituted with a sentence of imprisonment for the period already served.
- The applicant is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL REVISION NO. 32 OF 2017
KENGA NGALA MWAGANDI...........APPLICANT
VERSUS
REPUBLIC.....................................RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No. 118 of the 2015 of the Senior Principal Magistrate’s Court at Kilifi – L.N. Juma, RM)
JUDGEMENT
1. The Applicant, Kenga Ngala Mwagandi wrote to this Court on 3rd July, 2017 seeking a revision of his sentence. He was convicted on 8th May, 2017 for assault causing actual bodily harm contrary to Section 251 of the Penal Code and sentenced to serve one year imprisonment.
2. It is the Applicant’s assertion that despite his mitigation that he had six children and was remorseful the trial Magistrate had nevertheless went ahead and sentenced him to one year imprisonment without the option of a fine. He is therefore asking this Court to exercise its powers and forgive him. He pledges not to commit any other offence in future.
3. Mr. Fedha for the State told the Court that the Applicant’s conviction was safe. He, however, left the issue of the sentence to the Court’s discretion.
4. The revisionary power of this Court in criminal matters is found in Section 362 of the Criminal Procedure Code, Cap. 75. In the case of a conviction the Court can exercise the powers conferred on it as if it is sitting on appeal.
5. The record before me shows that the Applicant was a first offender. He gave a strong mitigation. The injury to the complainant was classified as harm. Prison should be reserved for those who have committed heinous crimes and repeat offenders. The Applicant did not fall into these categories. His application has merit.
6. At the time of the delivery of this ruling the Applicant will have served close to five months in prison. That is sufficient punishment and he will have learned his lesson in the process. His application is allowed and the sentence of one year imprisonment is set aside and substituted with a sentence of imprisonment for the period already served. He is thus set at liberty unless otherwise lawfully held.
Dated, signed and delivered at Malindi this 28th day of September, 2017.
W. KORIR,
JUDGE OF THE HIGH COURT