[2022] KEHC 14731 (KLR)

Mugo v Republic (Criminal Revision E151 of 2022) [2022] KEHC 14731 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14731 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Revision E151 of 2022

GL Nzioka, J

October 18, 2022

Between

Simon Njane Mugo

Appellant

and

Republic

Respondent

(From Original Criminal Case No. E191 OF 2021 of Magistrates Court Engineer)

Ruling

1. The applicant was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code.The particulars of the charge are that, he assaulted Martha Nyambura Mugo on January 24, 2021 at Warurungana village at Kinangop Sub-county, within Nyandarua County and occasioned her actual bodily harm.

2. The applicant was also charged in the 2nd count with the offence of threatening to kill contrary to section 223(1) of the Penal Code. It is stated in the particulars thereof, that on the same date as aforesaid, at the same place, he used a panga and a jembe to threaten to kill the complainant Martha Nyambura Mugo.

3. The charges were read to the applicant and he pleaded not guilty thereto. The case proceeded to full hearing and subsequently a judgment was rendered on the May 27, 2021 whereby the applicant was found guilty on the 1st count, convicted and sentenced to serve four(4) years imprisonment. However, he was acquitted on the 2nd count, due to insufficient evidence.

4. On September 21, 2022 the applicant filed an undated notice of motion application seeking for review of the sentence imposed upon him. In a memorandum of sentence review filed alongside the application, he states that; he is not appealing against conviction and sentence but review of the sentence to a non-custodial or preferably be placed on community service under the Community Service Order.

5. In an affidavit in support of the application, he avers that, he is remorseful, has reformed his character while in prison and is ready and willing to serve the community. Further, that, he is a first offender.

6. The application was opposed by the respondent, vide submissions on sentence review dated October 12, 2022. The Respondent states that;-a.The applicant was convicted of assault.b.The circumstances of the case were aggravated.c.The applicant attacked the complainant with a Fork Jembe resulting to serious injuries.d.The sentence is sufficient and commensurate to the offence and surrounding circumstances to the offence.

7. I have considered the application and I find that, it is not anchored on any cited provisions of the law. The applicant has clearly stated that, he is not appealing against the conviction or sentence. Therefore this matter is not brought under the provisions of section 347 of the Criminal Procedure Code (Cap 75) Laws of Kenya (herein “the code”). The only other provisions under which the application can be entertained is section 362 of the code, whereby the court exercises its revisionary power to revise a sentence.

8. However, for the court to invoke the provisions of section 362 as read with section 364 of the code, the subject sentence must be; incorrect, illegal or improper

9. The applicant herein was convicted of the offence of assault under section 251 of the Penal Code. The sentence provided there under, is a period of five (5) years. He was sentenced to four years. Therefore the sentence is lawful and legal. It is not subject to revision under section 362 and 364 of the code.

10. However, taking into account the fact that, the applicant is a first offender, the sentence of four (4) years is rather harsh and excessive. Similarly, taking into account, that, the matter herein involves a family, a pre-sentence report should have been called for before sentence to assist the court determine an appropriate sentence that, would not only deter the applicant, but assist in creating a cohesive relationship between the parties. I have also noted from the pre-bail report filed in the trial court, that, the applicant is said to have been committed to Mathari mental hospital for treatment at one time or another, a social inquiry report should have been called for.

11. The upshot of the aforesaid is that, the revision application is dismissed, but the matter is referred to the Probation Department to prepare a pre-sentence report under the Community Service Order (Act)It is so directed.

DATED, DELIVERED AND SIGNED ON THIS 18TH OCTOBER 2022 AT NAIVASHA.GRACE L. NZIOKAJUDGEIn the presence of:-Applicant in personMs Maingi for the RespondentMs Ogutu - Court Assistant