[2022] KEHC 15409 (KLR)
The court found that while the offence of grievous harm is serious and typically attracts a severe custodial sentence, the appellant's guilty plea, lack of previous convictions, and mental health condition were significant mitigating factors. The original sentence of 25 years was deemed harsh and excessive in light...
Source-derived case information.
- Citation
- [2022] KEHC 15409 (KLR)
- Parties
- Appellant: MAR; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E024 of 2021
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; appeal partially allowed
- Judges
- A. Ong’injo
- Legal Topics
- Sentencing Principles, Grievous Harm, Mitigation, Mental Health in Criminal Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MAR
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 25 years imprisonment for grievous harm was harsh and excessive.
- 2 Whether the appellant's mitigation and mental health condition warranted a reduction or substitution of the custodial sentence.
- 3 Whether a non-custodial sentence was appropriate in the circumstances.
Ratio Decidendi
The court found that while the offence of grievous harm is serious and typically attracts a severe custodial sentence, the appellant's guilty plea, lack of previous convictions, and mental health condition were significant mitigating factors. The original sentence of 25 years was deemed harsh and excessive in light of these circumstances. The court substituted the sentence with a 10-year custodial term, to run from the date of first sentencing, and directed that the appellant continue receiving mental health treatment while in custody. The request for a non-custodial sentence was rejected due to the gravity of the offence and the ongoing impact on the victim.
Court Disposition
sentence varied; appeal partially allowed
Orders
- The sentence of 25 years imprisonment is set aside and substituted with a sentence of 10 years imprisonment.
- The substituted sentence shall run from 3/08/2020.
Full Case Text
Judgment text and source record
27 paragraphs
MAR v Republic (Criminal Appeal E024 of 2021) [2022] KEHC 15409 (KLR) (3 November 2022) (Judgment)
Neutral citation: [2022] KEHC 15409 (KLR)
Republic of Kenya
In the High Court at Mombasa
Criminal Appeal E024 of 2021
A. Ong’injo, J
November 3, 2022
Between
MAR
Appellant
and
Republic
Respondent
(An appeal from the Judgment of Hon. E. Mutunga Senior Resident Magistrate written on 21st May 2019 and delivered on 6th day of June 2019 by Hon. R. Amwayi SRM in Mombasa Law Courts Criminal Case No. 283 of 2018. ))
Judgment
1. The appellant through of appeal filed on 9/3/2021 sought that his sentence be set aside.
2. The appellant through amended grounds of appeal filed on April 4, 2022 sought that his mitigation at the trial court be considered as the sentence was harsh & excessive & beyond the maximum provide by the relevant law.
3. The appellant was charged with the offence of grievous harm contrary to section 234 of Penal Code.
4. Particulars are that the appellant MAR on the July 29, 2020 at around 11. 30hours at Golini Location Matuga Sub-county Kwale County within Coast Region unlawfully did grievous harm to Said Ramathan.
5. The appellant pleaded guilty to the charge & was convicted & sentenced to serve 25 years imprisonment.
6. During trial the Magistrate said:-“The accused is a 1st offender. He shot his sisters son very seriously just because as he says he has been eating his food. This is a very serious offence”.The section 238 of the penal code carries a sentence of life imprisonment. The accused is not remorseful. The accused person cannot be rehabilitated better than by a custodial sentence”.
7. This court called for Victim Impact Statement and Sentence Review Report both of which was filed on September 26, 2022 and the Probation Officer Anthony M Piri found out that the offence may have been committed due to appellants ill mental condition and although the prisons authority have stated that his mental health condition has significantly improved the community & administration where he comes from have reservations against the appellant’s immediate release as they are doubtful and skeptical as to whether he has fully medically recovered.
8. The appellant’s family members however plead that he be granted non-custodial sentence.
9. On the other hand the victim is said to be frail as a result of injuries inflicted on him by the appellant who is his maternal uncle. The victim is unable to engage in rigorous & strenuous work due to the injuries and has been dependant on his elder brother, mother & other well-wishers. The victim’s family have vowed to forgive the appellant if the appellant and his family members settle the pending medical bills & initiate some sort of compensation.
10. Having considered the social inquiry report, I do find that the appellants ground of appeal that he should have his sentence substituted with non-custodial cannot succeed. However, I do find that the sentence of 25 years was harsh & excessive considering that he pleaded guilty in the 1s instance and did not waste the courts time.
11. In that regard this court is of the view that a sentence of 10 years would have been appropriate considering sentences in other more severe offences. This court orders that the appellant continues with medication in respect to mental illness while still in custody. The substituted sentence of 10 years should run from 3/08/2020.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 3RD DAY OF NOVEMBER 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence ofOgwel - Court assistantMs. Anyumba for stateAppellant – Present in personHon. Lady Justice A. Ong’injo J3/11/2022