[2023] KEHC 23083 (KLR)

Ngetich v Republic (Criminal Appeal E033 of 2022) [2023] KEHC 23083 (KLR) (4 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23083 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Appeal E033 of 2022

RB Ngetich, J

October 4, 2023

Between

Stephen Kendagor Ngetich

Appellant

and

Republic

Respondent

(BEING AN APPEAL AGAINST BOTH THE CONVICTION AND SENTENCE ARISING FROM THE JUDGEMENT OF HON. J. WANJALA (CM) DATED 31 ST AUGUST, 2022 IN THE CHIEF MAGISTRATE’S COURT AT KABARNET CRIMINAL CASE NO. E032 OF 2022)

Judgment

1. The Appellant was charged with the offence of grievous harm contrary to section 234 of the Penal Code. The particulars of the offence being that on the 12th day of January, 2022 at around 0830hours at Sesia village in Baringo Central subcounty within Baringo county the accused unlawfully did grievous harm to Brian Chepsergon Kipkechem.

2. The Appellant pleaded not guilty to the charge and the matter was set down for hearing with the prosecution availing 4 witnesses in support of the charge facing the accused. Upon hearing the prosecution and defence case, the trial court delivered judgement on the August 31, 2022 finding the appellant guilty of the offence charged, convicted him and sentenced him to serve 36 months imprisonment.

3. Being aggrieved and dissatisfied by the trial court’s decision, the appellant filed this appeal on the following grounds: -i.That he is a first offender.ii.That he is remorseful of what transpired on that fateful day.iii.That he promises to be a law abiding citizen.iv.That his wife delivered a baby most recently and she entirely depended on him.v.That his single parent (mother) is disabled and both his wife and her depended on him as their sole bread winner.vi.That he was born in a family of two siblings his sister and him. His sister was married elsewhere and does not bother about the welfare of the family.

4. In the appeal, appellant prayed that the honourable court quash his conviction and sentence, reduce the sentence or acquit him.

5. The appeal proceeded by way of written submissions. In his oral submissions before court the appellant said he is not challenging conviction and he seeks for the sentence to be reduced. He pleaded for leniency and stated that he is a first offender and is remorseful. The appellant submits that the sentence of 3 years imprisonment meted on him was too harsh. He urged this court to reduce the sentence or acquit him so that he may go home and take care of his family. He submitted that he is the sole bread winner and having stayed behind bars for 6 months, he has learned the hard way and promises to be a law-abiding citizen.

6. The State Counsel Ms. Ratemo submitted that the appellant was charged with a serious offence; that he inflicted permanent injury on the complainant and submitted that section 234 of the Penal Codeprovides for life sentence but the appellant was sentenced to serve 3 years imprisonment.

7. The state counsel further submitted that considering the circumstances of this case, the sentence imposed on the appellant was lenient and there is nothing to indicate that the trial court applied wrong principles; that there is no reason for this court to interfere with the sentence but the state is not opposed to the court time spent in remand being considered.

Analysis And Determination 8. The Appellant is not challenging conviction and what is left for this court’s determination whether this court should interfere with sentence imposed by the trial court It is settled principle of law that trial court has discretion to determine sentence and the said sentence can only be interfered with by the appellate court if the appellate court is satisfied that wrong principles were applied in arriving at the sentence or the sentence imposed is manifestly harsh and excessive. This position was stated by the court of appeal in the case of Bernard Kimani Gacheru v Republic Criminal Appeal No 188 of 2000 as follows:-“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

9. Section 234 of the Penal Code under which the appellant herein was charged provides that anyone convicted of the offence of grievous harm is liable to life imprisonment. The appellant herein was sentenced to 3 years imprisonment. The sentence imposed in my view is below sentence provided by statute and very lenient. The appellant has not demonstrated before this court reasons to interfere with the sentence imposed. I also take note of the fact that injury inflicted on the complaint resulted in disability. In my view the sentence ought to be enhance but I take note of the fact that no notice of enhancement of sentence was served on the appellant. I will not therefore interfere with sentence imposed by the trial court.

10. Final Orders: -1)Appeal on conviction is marked as abandoned.2)Appeal on sentence is hereby dismissed.3).Period served in remand to be reduced from sentence imposed by trial court.

JUDGMENT DELIVERED, DATED AND SIGNED IN VIRTUALLY AT KABARNET THIS 4TH DAY OF OCTOBER 2023. ............................RACHEL NGETICHJUDGEIn the presence ofMr. Kemboi - Court Assistant.Ms Ratemo for State.Appellant present.