[2015] KEHC 4804 (KLR)
The court found that although the appellant was convicted on his own plea of guilty for child neglect, the circumstances indicated that his actions were due to ignorance rather than malice. The child was now receiving appropriate medical care, and the appellant had already served 6 months in custody. The court...
Source-derived case information.
- Citation
- [2015] KEHC 4804 (KLR)
- Parties
- Appellant: P O T; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 104 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; sentence set aside; appellant released
- Legal Topics
- Child Neglect, Sentencing Principles, Plea of Guilty, Parental Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P O T
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 40 months imprisonment for child neglect was lawful and appropriate.
- 2 Whether the court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The court found that although the appellant was convicted on his own plea of guilty for child neglect, the circumstances indicated that his actions were due to ignorance rather than malice. The child was now receiving appropriate medical care, and the appellant had already served 6 months in custody. The court determined that the custodial sentence of 40 months was excessive in the circumstances and that the period already served was sufficient to serve the ends of justice. Consequently, the court set aside the custodial sentence and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed; sentence set aside; appellant released
Orders
- The 40 months custodial sentence against the appellant is set aside.
- The appellant is to be released forthwith unless lawfully held for another cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO.104 OF 2014
P O T …..............................................................APPELLANT
VERSUS
REPUBLIC …............................................................................RESPONDENT
[Appeal from Original Conviction and Sentence from Maseno PM's Court: M. C. NYIGEI - RM
in Criminal Case No.1296 of 2014. ]
****************
J U D G M E N T
This appellant was charged with the Offence of Child Neglect contrary to Section 127 (1)(a) of the Children Act No.8/2007. The particulars were that on diverse dates between the month of December 2013 and 14th day of October 2014 at about 11. 00 hours at [particulars withheld] Sub_Location in Kisumu West District of the Kisumu County, being a guardian of G O T a child aged 15 years willfully neglected the said child an act that caused suffering to his health.
The appellant was convicted on his own plea of guilty and sentenced to 40 months imprisonment. The appellant has filed this appeal which to say the least is purely mitigated. According to Mr. Oguso learned counsel for the appellant his client is remorseful and that he never meant to neglect the child.
The facts on record showed that the child was suffering from some tumour on his face and the appellant, his father instead of taking him for conventional treatment took him to some herbalist and when it failed he resorted to prayers.
Mr. Oguso urged this court to be compassionate as the 6 months his client has served have taught him a lesson and that the child currently is undergoing treatment.
The state opposed the appeal on the ground that the plea was unequivocal and that the facts on record speak for itself. In any event the 40 months meted against him were not excessive.
I have perused the appeal together with the proceedings, the sentiments by the appellant and the respondent's replies. I have equally perused the
probation reports on the file as well as the reports from the Childrens' Department. This court shall only interfere with the question of sentencing if its unlawful or the court considered or did not consider relevant issues.
As conceded by the appellant the facts and issues surrounding this matter are not disputed. Out of his “ignorance” the appellant did not take his child to hospital forcing other well wishers to do so. Taking into consideration the history behind it and the fact that the child is now undergoing specialist treatment at Moi Teaching and Referral hospital, I shall allow the appeal by setting aside the 40 months custodial sentence against the appellant. I do order him released forthwith unless lawfully held. I do reckon that the 6 months period he has served in jail has taught him a lesson and to be responsible parent.
Dated, delivered this 25th day of May, 2015
H. K. CHEMITEI
J U D G E