[2014] KEHC 3165 (KLR)
The High Court found that the applicant was a first offender, the offences of assault and malicious damage arose from the same transaction, and there were no aggravating factors. The applicant expressed remorse during mitigation. In the absence of aggravating circumstances, and considering the powers of revision...
Source-derived case information.
- Citation
- [2014] KEHC 3165 (KLR)
- Parties
- Applicant: Mwenda Lugwe; Respondent: State
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 13 of 2014
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- custodial sentence set aside; fine imposed in substitution
- Judges
- CW Meoli
- Legal Topics
- Assault Causing Actual Bodily Harm, Malicious Damage to Property, Sentencing Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwenda Lugwe
Applicant
State
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the custodial sentence imposed by the Lower Court for assault and malicious damage was appropriate in the circumstances.
- 2 Whether the applicant, as a first offender and being remorseful, should be granted an option of a fine.
Ratio Decidendi
The High Court found that the applicant was a first offender, the offences of assault and malicious damage arose from the same transaction, and there were no aggravating factors. The applicant expressed remorse during mitigation. In the absence of aggravating circumstances, and considering the powers of revision under Section 364 of the Criminal Procedure Code, the custodial sentence was deemed excessive. The court substituted the custodial sentence with a fine of KES 5,000 for each count, or in default, three months imprisonment per count.
Court Disposition
custodial sentence set aside; fine imposed in substitution
Orders
- The custodial sentence imposed by the Lower Court on 21st July, 2014 is set aside.
- The accused shall pay a fine of KES 5,000 or in default serve three months imprisonment on each of the two counts upon which he was convicted.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 13 OF 2014
(From original conviction and sentence in Assault Causing Actual Bodily Harm and Malicious
Damage to Property case No. 730 of 2012 of the Chief Magistrate’s Court at Malindi)
MWENDA LUGWE.................................................APPLICANT
VERSUS
STATE.............................................................PROSECUTOR
RULING ON REVISION
1. This file was placed before me on account of a letter by counsel who was not representing the accused at the trial. I have perused the record of the Lower Court. The accused was convicted on the two counts of assault and malicious damage which occurred in the same transaction. He was said to be a first offender.
2. Although the accused’s conduct was violent and unwarranted, he was remorseful in his mitigation address and there are no aggravating factors militating against him being given an option of a fine.
3. In view of the foregoing, and exercising the powers granted under Section 364 of the Criminal Procedure Code, I would set aside the custodial sentence imposed by the Lower Court on 21st July, 2014. I substitute therefor an order that the accused shall pay a fine of shs. 5,000/- or in default serve three months imprisonment on each of the two counts upon which he was convicted.
Delivered and signed at Malindi this 31stday of July, 2014
C. W. Meoli
JUDGE