[2018] KEHC 868 (KLR)
The court found that since the offence was of a personal nature (grievous harm), the complainant and appellant were cousins, and the matter had been settled at the family level by clan elders, it was appropriate to promote reconciliation as an alternative dispute resolution mechanism. With the concurrence of the...
Source-derived case information.
- Citation
- [2018] KEHC 868 (KLR)
- Parties
- Appellant: Nelson Kandie Sumukwo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 22 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed; appellant discharged absolutely and unconditionally.
- Judges
- EM Muriithi
- Legal Topics
- Grievous Harm, Reconciliation, Sentence Variation, Family Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nelson Kandie Sumukwo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether reconciliation between the complainant and appellant justifies setting aside the conviction and sentence for grievous harm.
- 2 Whether the court can promote alternative dispute resolution in criminal matters of a personal nature under Article 159(2)(c) of the Constitution.
Ratio Decidendi
The court found that since the offence was of a personal nature (grievous harm), the complainant and appellant were cousins, and the matter had been settled at the family level by clan elders, it was appropriate to promote reconciliation as an alternative dispute resolution mechanism. With the concurrence of the Director of Public Prosecutions and in line with Article 159(2)(c) of the Constitution, the court allowed the appeal, set aside the sentence, and ordered the absolute and unconditional discharge of the appellant under section 35(1) of the Penal Code.
Court Disposition
Appeal allowed; appellant discharged absolutely and unconditionally.
Orders
- The appeal from the sentence is allowed.
- The appellant is discharged absolutely and unconditionally under section 35(1) of the Penal Code.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
CRIMINAL APPEAL NO. 22 OF 2017
[FORMERLY ELDORET HCCRA NO 38 OF 2012]
NELSON KANDIE SUMUKWO............................................APPELLANT
VERSUS
REPUBLIC..........................................................................RESPONDENT
[An appeal from the original conviction and sentence
in criminal case no. 539 of 2011in the Principal Magistrate’s Court
at Kabarnetdeliveredon the 24th & 28th day ofFebruary, 2014
by Hon. H. Nyaga SPM]
JUDGMENT
1. The appellant was on 24th and 28th February 2012, respectively, convicted and sentenced to 31/2years imprisonment for the offence of grievous harm contrary to section 234 of the Penal Code. He filed his petition of appeal on 29/2/2012.
2. Before the appeal could be heard, Counsel for the appellant indicated that the complainant wished to forgive the appellant, and that before the matter could be dealt with on the basis of the reconciliation. The DPP did not object.
3. The Court considered it a constitutional duty in any appropriate matter to promote alternative dispute resolution in terms of Article 159 (2) (c) of the Constitution. Being a personal matter of an assault and grievous harm, I considered it appropriate to allow reconciliation as method of resolution of dispute between the parties, with concurrence of the DPP.
4. The complainant Anthony Bargoge Tarus was examined by the Court on Oath and he confirmed that he had fully recovered from the Assault by the appellant and that he had unconditionally forgiven the appellant and the matter had been settled at the family level by the elders as the accused was his cousin.
DETERMINATION
5. This is a proper case for the use of alternative dispute resolution mechanism of reconciliation as the complainant and the appellant are cousins; the offence is one of personal nature being grievous harm contrary to section 234 of the Penal Code, and the matter has been settled at the family level by the clan elders.
6. As the DPP agrees, the Court promotes Alternative Dispute Resolution and pursuant to Article 159 of the Constitution, the Court allows the appeal from the sentence pursuant to section 354 (3) (b) of the Criminal Procedure Code and alters the nature of the sentence having regard to the reconciliation between the parties.
7. There shall therefore, be an order for discharge of the appellant under section 35 (1) of the Penal Code absolutely and unconditionally, as the matter has now been settled by reconciliation of the parties.
Order accordingly.
DATED AND DELIVERED THIS 20TH DAY OF DECEMBER 2018
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Assistant DPP for the Respondent.