[2012] KEHC 3231 (KLR)
The court found that while the appellant was a first offender and the offence arose from a family dispute, the use of a panga (machete) during the attack was an aggravating factor. However, the appellant had already served three months in custody and had been out on bail pending appeal for a significant period. The...
Source-derived case information.
- Citation
- [2012] KEHC 3231 (KLR)
- Parties
- Appellant: Mark Person Mawira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 172 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Assault, Mitigation, First Offender, Family Disputes, Use of Weapon
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Person Mawira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive and unwarranted in the circumstances.
- 2 Whether the trial court failed to consider the appellant's status as a first offender and the context of the offence.
Ratio Decidendi
The court found that while the appellant was a first offender and the offence arose from a family dispute, the use of a panga (machete) during the attack was an aggravating factor. However, the appellant had already served three months in custody and had been out on bail pending appeal for a significant period. The court determined that returning the appellant to prison would be unnecessarily harsh in the circumstances. Accordingly, the sentence of three years imprisonment was set aside and substituted with a fine of Ksh.30,000, with a default sentence of six months imprisonment.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of three years imprisonment is set aside.
- The appellant is ordered to pay a fine of Ksh.30,000.
Full Case Text
Judgment text and source record
15 paragraphs
MARK PERSON MAWIRA……………………..….…APPELLANT
VERSUS
REPUBLIC………………………………….………....RESPONDENT
JUDGEMENT
The Appellant was charged and convicted with one count of Assault causing actual bodily harm contrary to section 251 of the Penal Code. He was sentenced to 3 years imprisonment. Being aggrieved by the conviction and sentence the Appellant filed this appeal. He has raised several grounds which can be summarized as follows:
(a)That the conviction was and still remains unsafe because of the materially contradictory, uncorroborated and unreliable prosecution evidence.
(b)The sentence is in any case excessive and unwarranted.
When the appeal came up for hearing Mr. Basilio Gitonga for the Appellant abandoned the appeal against the conviction and urged the appeal against sentence. In his brief submissions counsel urged that the Appellant was given a custodial sentence without an option of fine yet he was a first offender and the offence arose out of a prolonged family dispute over land.Counsel urged that the Appellant was remorseful and was urging the court to give him a non-custodial sentence.
Mr. Moses Mungai for the State opposed the Appeal.Counsel urged that the Appellant was not remorseful because when he was asked to mitigate by the trial court he said nothing. Counsel also urged that the learned trial magistrate was lenient because she awarding three years imprisonment instead of the maximum five.
I have considered this appeal.It is not disputed that the Appellant was a first offender. It is also not disputed that the circumstances surrounding the attack revolved around family disputes over land. There is no dispute that the Appellant attacked an employee of his brother with whom he had the dispute.
I have considered the circumstances of the offence and do find that the appellant vented his anger against a person who had not wronged him. The attack was not at a farm as the Appellants counsel submitted, but in a workshop. The Appellant was also armed with a panga during the attack, which aggravates the offence for which he was charged.
I have considered that the Appellant served 3 months out of the sentence of imposed against him because of being granted bail pending Appeal. He has been out on bail since November, 2009. It would be unnecessary harsh in my view to return the Appellant to serve an imprisonment sentence. Given all the circumstances of this Appeal I will allow the same, set aside the sentence of 3 years imprisonment, and in substitution thereof order the Appellant to pay a fine of Ksh.30,000/- and in default to serve six months imprisonment.
DATED, SIGNED AND DELIVERED THIS 5TH DAY OF JULY 2012
LESIIT,J.
JUDGE.