[2008] KEHC 3000 (KLR)
The trial court, presided over by a Resident Magistrate, imposed sentences of 10 years and 5 years' imprisonment to run concurrently for indecent assault and assault causing actual bodily harm, respectively. However, Section 7 of the Criminal Procedure Code restricts the sentencing powers of a Resident Magistrate to...
Source-derived case information.
- Citation
- [2008] KEHC 3000 (KLR)
- Parties
- Appellant: Okerosi Mwencha alias Oginga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 204 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; sentence reduced to period served; appellant released unless otherwise lawfully held
- Judges
- DK Musinga
- Legal Topics
- Sentencing Jurisdiction, Indecent Assault, Assault Causing Actual Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Okerosi Mwencha alias Oginga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the Resident Magistrate had jurisdiction to impose a sentence exceeding 7 years' imprisonment for the offences charged.
- 2 Whether the sentence imposed was lawful and should be upheld or set aside.
Ratio Decidendi
The trial court, presided over by a Resident Magistrate, imposed sentences of 10 years and 5 years' imprisonment to run concurrently for indecent assault and assault causing actual bodily harm, respectively. However, Section 7 of the Criminal Procedure Code restricts the sentencing powers of a Resident Magistrate to a maximum of 7 years' imprisonment, except for certain offences not applicable here. The appellate court found that the trial magistrate acted without jurisdiction in passing the sentence. Given that the appellant had already served more than two years in custody, the appellate court held that he had been sufficiently punished. The appeal was allowed, and the sentence was...
Court Disposition
appeal allowed; sentence reduced to period served; appellant released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The sentence is reduced to the period already served.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Criminal Appeal 204 of 2006
OKEROSI MWENCHA ALIAS OGINGA …………. APPELLANT
VERSUS
REPUBLIC ………………………………...……... RESPONDENT
(From original conviction and sentence in the Resident Magistrate’s Court at Kehancha, Criminal Case no.1176 of 2005 by M. K. K. SEREM, RM)
JUDGMENT
On 10th January, 2006 the appellant was convicted of the charges of indecent assault of a female and assault causing actual bodily harmcontrary tosections 144(1)and251of thePenal coderespectively.He was sentenced to 10 years’ imprisonment on the first count and 5 years’ imprisonment on the second count. The sentences were to run concurrently. He was aggrieved by the said sentence and preferred an appeal to this court.
Mr. Kemo, Principal State Counsel, conceded the appeal, and in my view rightly so, on the basis that the learned trial magistrate was a Resident Magistrate at the time. Section 7 of the Criminal Procedure Code does not allow such a magistrate to pass a sentence exceeding 7 years’ imprisonment except for offences under sections 278, 308(1) 322 of the Penal Code or under the Sexual Offences Act, 2006 which came into operation on 21st July 2006. The trial court did not have jurisdiction to pass the sentence which it did.
The appellant has been in custody for more than two years. He has been punished sufficiently and I believe he has also had time to reflect on his actions. I allow the appeal and reduce the sentence to the period already served. The appellant is set at liberty unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED at Kisii this 7th day of March 2008.
D. MUSINGA
JUDGE.
Judgment delivered in open court.
Accused present.
Mr. Kemo for the Republic
D. MUSINGA
JUDGE