[2015] KEHC 5342 (KLR)
The High Court found that the trial magistrate had erroneously convicted and sentenced the applicant on a charge that had already been substituted, rendering the conviction and sentence irregular. Upon review of the proceedings and evidence, the High Court determined that the evidence was sufficient to sustain a...
Source-derived case information.
- Citation
- [2015] KEHC 5342 (KLR)
- Parties
- Applicant: Lawrence Wachira Miano; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 5 of 2015
- Procedural Posture
- Criminal Revision / Revision and Resentencing
- Outcome
- Conviction and sentence by trial court set aside; applicant convicted of grievous harm and sentenced to twelve years imprisonment.
- Judges
- BB Limo
- Legal Topics
- Grievous Harm, Criminal Revision, Sentencing Irregularity, Amendment of Charge Sheet
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Wachira Miano
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision and Resentencing
Legal Issues
- 1 Whether the conviction and sentence imposed by the trial magistrate were irregular due to reliance on a substituted charge sheet.
- 2 Whether the evidence on record was sufficient to sustain a conviction for grievous harm under Section 234 of the Penal Code.
- 3 What is the appropriate sentence upon revision for the offence of grievous harm.
Ratio Decidendi
The High Court found that the trial magistrate had erroneously convicted and sentenced the applicant on a charge that had already been substituted, rendering the conviction and sentence irregular. Upon review of the proceedings and evidence, the High Court determined that the evidence was sufficient to sustain a conviction for grievous harm under Section 234 of the Penal Code. Exercising its revisionary jurisdiction under Sections 362–364 of the Criminal Procedure Code and Article 165(6) and (7) of the Constitution, the High Court set aside the irregular conviction and sentence, substituted it with a conviction for grievous harm, and, after hearing the applicant's mitigation, imposed a...
Court Disposition
Conviction and sentence by trial court set aside; applicant convicted of grievous harm and sentenced to twelve years imprisonment.
Orders
- The conviction and sentence imposed by the trial magistrate are set aside.
- A conviction for grievous harm contrary to Section 234 of the Penal Code is entered against the applicant.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL REVISION NO. 5 OF 2015
LAWRENCE WACHIRA MIANO................APPLICANT
VS
REPUBLIC..........................................RESPONDENT
REVISION
1. This is a revision arising from a conviction and sentence in Kerugoya Chief Magistrate Court Criminal case NO. 282 of 2013 where LAWRENCE WACHIRA MIANO was charged with the offence of Grievous Harm contrary to Section 234 of Penal Code. The particulars as per the charge sheet which was amendment to an initial charge of assault causing bodily harm contrary to Section 251 of Penal Code, shows that the accused on 18th day of June 2013 at KIAWAKARA village within Kirinyaga County unlawfully did grievous harm to one RUTH WANJIRA NGURE the complainant at the trial.
2. The record of proceedings and the judgment has been brought to my attention vide a letter dated 23rd April 2015 from the trial magistrate addressed to this court for purposes of revision under Section 363 of the Criminal Procedure Code.
3. The basis for revision that the accused was convicted and sentenced on a charge of assault causing bodily harm which charge had been amended on 8th July 2003 and substituted with a new charge sheet which was read to the accused and pleaded not guilty as per the record which has been forwarded to this court .
4. It is apparent from the record of proceedings at the trial related to the new charge sheet but the initially charge sheet was not endorsed to reflect that it had been amended . This is an inadvertence which appeared to have led the trial magistrate after the trial to write a judgment where he inadvertently convicted and sentenced the accused on a nonexistent charge as the same had been substituted.
5. I have examined the proceedings on record and the basis upon which the file has been placed before me. It is clear that both the conviction and sentence were incorrect and irregular. In exercise of my powers under Article 165 (6) and (7) of the Constitutionand Section 362 of the Criminal Procedure Code, it is fair and just to revise both the conviction and sentence.
6. I have examined the evidence adduced at the trial and I am satisfied that the evidence was sufficient to sustain the charge of causing Grievous Harm against the accused. Under Section 364 of the Criminal Procedure Code I hereby set aside the incorrect conviction and sentence imposed by the trial magistrate and in its place enter a conviction against the accused for the offence of Grievous Harm contrary to Section 234 of Penal Code as per the substituted charge dated 8th July 2013. He is convicted accordingly and pursuant to Section 364 (2) Criminal Procedure Code he is required to appear before this court on 28th April 2015 for purposes of being informed of revision and to be given an opportunity of being heard before the correct legal sentence is imposed against him. Production order to issue.
R.K.LIMO
JUDGE
DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 27TH DAY OF APRIL 2015
28/4/2015
Before
Hon. R.Limo Judge
CC - Mbogo
Sitati for State
Accused/Convict - present
Interpretation - English/Kikuyu
Sitati for State present
Lawrence Wachira Miano present
COURT
The accused is given explanation in Kikuyu language on the basis of revision made by the Court and is invited to address the Court before sentence.
LAWRENCE WACHIRA MIANO
I have done this case for 2 years and four months in custody. While at remand, I suffered. I am asthmatic and I have cancer. I had prayed for a retrial but the same was turned down. I pray that I be given the sentence I had been given by trial Court. My family is suffering.
COURT
This Court has considered the mitigation by the accused but it is also in the interest of justice to consider the injuries that accused inflicted on the complainant which were serious. He is sentenced to serve twelve years imprisonment.
Right of appeal 14 days.
R.K. LIMO
JUDGE
DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 28TH DAY OF APRIL, 2015