[2016] KEHC 2453 (KLR)
The High Court found that although the injuries were classified as grievous harm, they were likely to heal fully with time and did not result in permanent injury. The appellant was a first offender, expressed remorse, and pleaded guilty, saving the court's time. The trial court did not sufficiently consider these...
Source-derived case information.
- Citation
- [2016] KEHC 2453 (KLR)
- Parties
- Appellant: Margret Kirinya Omukaga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 11 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence set aside; pre-sentence report ordered for non-custodial sentence consideration
- Legal Topics
- Sentencing Principles, Grievous Harm, Mitigation of Sentence, Remission of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margret Kirinya Omukaga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the four-year custodial sentence for causing grievous harm was harsh and excessive.
- 2 Whether the trial court properly considered the appellant's mitigation and first offender status.
- 3 Whether the reinstatement of remission should affect the sentence.
Ratio Decidendi
The High Court found that although the injuries were classified as grievous harm, they were likely to heal fully with time and did not result in permanent injury. The appellant was a first offender, expressed remorse, and pleaded guilty, saving the court's time. The trial court did not sufficiently consider these mitigating factors. Additionally, remission of sentence had been reinstated after the appellant's conviction, which should be taken into account. Therefore, the custodial sentence was deemed too harsh in the circumstances, and the sentence was set aside in favor of considering a non-custodial sentence pending a probation report.
Court Disposition
sentence set aside; pre-sentence report ordered for non-custodial sentence consideration
Orders
- The custodial sentence is set aside.
- A pre-sentence report to be availed by the Probation Department within seven days to guide the court on the type of non-custodial sentence to impose.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
HIGH COURT CRIMINAL APPEAL NO. 11 OF 2016
MARGRET KIRINYA OMUKAGA........................................APPELLANT
VERSUS
REPUBLIC.........................................................................RESPONDENT
(An appeal from the sentence imposed on 8th December, 2015 by Washika Wachira, SRM)
J U D G E M E N T
1. On 8th December, 2015 Margaret KirinyaOmukaga, the Appellant, appeared in Court and pleaded guilty to a charge of causing grievous harm to one ChrisadosElodi contrary to Section 234 of the Penal Code. She was sentenced to serve four years imprisonment.
2. She now appeals against the sentence on the grounds that the same was harsh and excessive, that the Magistrate did not consider her mitigation and the fact that she was not a first offender; that she is remorseful, and that she is suffering from ill health.
3. The State did not oppose the appeal. Mr. Owitifor the State stated that the Appellant saved the Court’s time by pleading guilty and that she is a first offender. Further, that although the Appellant could not benefit from remission of sentence as she was convicted at a time when remission had been done away with, remission had since been reinstated and the Court should consider this fact in reviewing the sentence.
4. The P3 form disclosed the injury sustained as a deep penetrating injury on the left temporal area measuring approximately 2cm X 1cm X 1cm and multiple penetrating injuries on the head and face. The medical officer who prepared the P3 form concluded that the complainant had suffered grievous harm.
5. Much as sentencing is the discretion of the trial Court, this Court has a duty to consider the facts of each case in order to reach a conclusion as to whether the sentence was harsh in the circumstances. In the case at hand the injuries, though the doctor may have concluded could endanger life, are likely to fully heal with time. No permanent injury was thus caused to the complainant.
6. The Appellant was also a first offender and had indicated to that Court that she was sorry and was not going to repeat the offence. By pleading guilty the Appellant had signalled that she acknowledged her mistake.
7. In the circumstances of this case, I find that a custodial sentence was too harsh. The sentence is therefore set aside. A pre-sentence report to be availed by the Probation Department within the next seven days in order to guide the Court as to the type of non-custodial sentence to impose.
Dated, signed and delivered at Busia this 18th day of August, 2016
W. KORIR,
JUDGE OF THE HIGH COURT