[2021] KEHC 9778 (KLR)
The court found that the original sentence of five years for assault causing actual bodily harm and three years for malicious damage to property was harsh and excessive, particularly given the applicant's status as a first offender and the relatively low value of the damaged property. The court also considered the...
Source-derived case information.
- Citation
- [2021] KEHC 9778 (KLR)
- Parties
- Applicant: Benard Oriendo Okwera; Respondent: State
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 28 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; custodial term reduced
- Judges
- JN Onyiego
- Legal Topics
- Sentencing Principles, Assault Causing Actual Bodily Harm, Malicious Damage to Property, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Oriendo Okwera
Applicant
State
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was harsh and excessive in the circumstances.
- 2 Whether the court should revise the sentence considering the applicant's status as a first offender and the value of the damaged property.
Ratio Decidendi
The court found that the original sentence of five years for assault causing actual bodily harm and three years for malicious damage to property was harsh and excessive, particularly given the applicant's status as a first offender and the relatively low value of the damaged property. The court also considered the impact of COVID-19 on prison congestion. The judge substituted the sentence for count one with three years' imprisonment and for count two with one year, both to run concurrently from the original date of sentencing. The court emphasized the need for proportionality in sentencing and acknowledged the seriousness of the offence, but determined that the maximum sentence was not...
Court Disposition
sentence revised; custodial term reduced
Orders
- The sentence of five years for count one (assault causing actual bodily harm) is substituted with a sentence of three years' imprisonment.
- The sentence of three years for count two (malicious damage to property) is substituted with a sentence of one year imprisonment.
Full Case Text
Judgment text and source record
24 paragraphs
Okwera v State (Criminal Revision 28 of 2020) [2021] KEHC 9778 (KLR) (12 February 2021) (Ruling)
Neutral citation: [2021] KEHC 9778 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Revision 28 of 2020
JN Onyiego, J
February 12, 2021
Between
Benard Oriendo Okwera
Applicant
and
State
Respondent
Ruling
1. The appellant was on August 19, 2019 charged before Taveta Law Court’s Principal Magistrate's Court of two counts. Count one, he was charged with assault causing actual bodily harm in that he assaulted Otieno Hasibo thereby occasioning him actual bodily harm. Count 2, he was charged with malicious damage to property contrary to section 339 (1) of the penal code in that he destroyed Otieno's radio valued at 1,500/=
2. Having entered a plea of guilty, he was on 14. 10. 19 sentenced to 5 years imprisonment in respect of count I and 3 years imprisonment in respect of count 2. Sentences are to run concurrently. While imposing this sentence, the court considered the mitigation on record to the effect that; accused is a first offender, the complainant is a father to the appellant who is aged 76 years, the probation report is not suitable and that he was not remorseful.
3. Dissatisfied with the sentence, the appellant moved to this court by way of a letter dated 17. 8.20 seeking revision of his sentence. He pleaded for leniency while alleging that the sentence is harsh and excessive.
4. When the matter came for hearing, the court ordered for pre-sentence report. From the victim’s impact report dated 10. 2.2021 prepared by Kipsang a Probation Officer the victim and the appellant's family members expressed their desire that the appellant should serve his sentence in full.
5. During the hearing, the appellant reiterated his grounds for review of sentence stating that he has reformed and regrets his mistake. The state through Mr. Kipchirchir opposed the application stating that the appellant/applicant should serve his sentence in full.
6. I have considered the application herein, sentence imposed visavis the seriousness of the offence committed. I have also considered the victim impact report which is not suitable.
7. There is no doubt the objective of punishment is deterrence, retribution, rehabilitation, denouncing of the offence on behalf of the community, incapacitating the offender or restorative justice. The appellant did attack his 76 old father thus injuring his eye seriously. The father is still bitter. Indeed, punishment must be proportionate with the nature of the offence.
8. In this case the court gave the maximum sentence of 5 years in respect of count I. I find this to be harsh and excessive considering that the appellant is a first offender. Further, considering that prisons are congested due to covid-19, I will substitute the sentence with an imprisonment term of 3 years to be calculated from the date he was sentenced for count I. As regards count 2, the same is not reasonable considering the value of the destroyed property. I will therefore reduce and substitute it with one year imprisonment.
9. Accordingly, the sentence of;a.five years for count one is substituted with a sentence of three years.b.three years for count two is substituted with a sentence of one year.c.sentences to run concurrently and the same to be calculated from the date of sentence.Right of Appeal of 14 days.
DATED SIGNED DELIVERED IN OPEN COURT THIS 12TH DAY OF FEBRUARY 2021J. N. ONYIEGOJUDGE