[2019] KEHC 10184 (KLR)
The High Court found that the trial court exercised its discretion properly in sentencing the applicant to five years imprisonment for the offence of grievous harm, which carries a maximum sentence of life imprisonment. The court noted that the sentence was lenient given the seriousness of the injuries inflicted on...
Source-derived case information.
- Citation
- [2019] KEHC 10184 (KLR)
- Parties
- Applicant: Mutembei Jediel Ndwiga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 141 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- BB Limo
- Legal Topics
- Grievous Harm, Sentencing Principles, Judicial Discretion, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutembei Jediel Ndwiga
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the sentence imposed by the trial court was excessive or improper in light of the applicant's circumstances.
- 2 Whether the trial court exercised its discretion correctly in sentencing the applicant to five years imprisonment for grievous harm.
Ratio Decidendi
The High Court found that the trial court exercised its discretion properly in sentencing the applicant to five years imprisonment for the offence of grievous harm, which carries a maximum sentence of life imprisonment. The court noted that the sentence was lenient given the seriousness of the injuries inflicted on the complainant. The applicant failed to demonstrate that the trial court considered irrelevant factors or omitted relevant ones in its sentencing decision. Consequently, there was no basis for the High Court to interfere with the sentence, and the application for revision was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is disallowed.
- The applicant is advised to be of good behaviour and continue with rehabilitation in the correctional facility.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL REVISION NO.141 OF 2018
MUTEMBEI JEDIEL NDWIGA......................................APPLICANT
VERSUS
REPUBLIC...................................................................RESPONDENT
(From original conviction and sentence in Criminal Case No. 757 of 2012 of the Principal Magistrate's Court at Chuka).
R U L I N G
1. Mutembei Jediel Ndwiga, the applicant herein was charged and convicted together with two others for the offence of grievous harm contrary to Section 234 of the Penal Code vide Chuka Principal Magistrate's Court Criminal Case No.757/2012.
The particulars of the offence were that on 3rd July 2012 at Kamara Chogoria Location within Tharaka Nithi County, the applicant jointly with others unlawfully cause grievous harm to Moses Kinegeni. The applicant herein and his two Co-accused upon conviction were sentenced to serve 5 years imprisonment each on 12th October 2015.
2. The applicant has now moved this court under Sections 362 and 364 of the Criminal Procedure Code for review of his sentence on the following grounds:-
(i) That he was a first offender.
(ii) That he is a breadwinner in his family,
(iii) That he is remorseful and should be forgiven
(iv) That he is now rehabilitated
(v) That his sentence should be reduced to a non custodial one.
3. The applicant has sworn an affidavit to support the above grounds.
4. This court did call for the lower court file pursuant to the provisions of Section 362 of the Criminal Procedure Code upon perusal of the record and the judgment this court is satisfied with the correctness, legality and propriety of the proceedings and the judgment delivered by the trial court.
5. The victim/complainant suffered serious injuries including a closed fracture of the right tibia and fibula. The sentence provided under Section 234 of the Penal Code is a maximum of life imprisonment. The trial court exercised its discretion under Section 26(2) of the Penal Code and handed out 5 years each to the applicant and his Co-accused . This court can only intervene if it is established that the trial court took into consideration an irrelevant factor or omitted a relevant one in the exercise of discretion. The applicant has not attacked the trial court's exercise of that discretion perhaps for good reason. The trial court was actually lenient to the applicant and his Co-accused because 5 years imprisonment in my view of the offence committed is lenient and the applicant could not have asked for more because at the end of the day he and his partners in crime need time to reflect on the crime they committed and reform. They should not have taken the law into their hands and cause serious/grievous injuries to their neighbour regardless of the differences they might have had. Had the State asked for enhancement, I would enhance the sentence.
In the premises this court finds no merit in this application dated 7th August, 2018. The same is disallowed. The applicant is advised to be of good behavour and continue with his rehabilitation and transformation in the correctional facility he is kept.
Dated, signed and delivered at Chuka this 23rd day of January, 2019.
R.K. LIMO
JUDGE
22/1/2019
Ruling signed, dated and delivered in the open court in presence of applicant in person and Momanyi for Director of Public Prosecution/Respondent.
R.K. LIMO
JUDGE
23/1/2019