[2021] KEHC 8210 (KLR)
The court found that the accused, though a first offender and remorseful, committed an act of brutality by chasing and inflicting fatal injuries on the deceased without provocation or justification. The court considered the sentencing objectives, the period spent in custody, and the mitigation advanced. While the...
Source-derived case information.
- Citation
- [2021] KEHC 8210 (KLR)
- Parties
- Applicant: Republic; Defendant: Abdiharam Barissa
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 11 of 2014
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted and sentenced
- Judges
- CM Kariuki
- Legal Topics
- Grievous Harm, Sentencing Guidelines, Mitigation, First Offender, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Abdiharam Barissa
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should receive a life sentence or a lesser custodial sentence for the offence of grievous harm.
- 2 What mitigating factors should influence the sentence imposed on the accused.
Ratio Decidendi
The court found that the accused, though a first offender and remorseful, committed an act of brutality by chasing and inflicting fatal injuries on the deceased without provocation or justification. The court considered the sentencing objectives, the period spent in custody, and the mitigation advanced. While the circumstances did not warrant a life sentence, the gravity of the offence called for a severe custodial sentence. Accordingly, the accused was sentenced to 25 years' imprisonment, effective from the date of first custody.
Court Disposition
convicted and sentenced
Orders
- The accused is sentenced to 25 years' imprisonment with effect from 27/6/2014.
- Right of appeal explained.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 11 OF 2014
REPUBLIC....................................................PROSECUTION
VERSUS
ABDIHARAM BARISSA.......................................ACCUSED
SENTENCING ORDER
1. The accused has been convicted of offence of grievous harm contrary to section 234 of the Penal Code Cap 63 Laws of Kenya.
2. The accused was afforded opportunity to mitigate after State stated that there were no previous records.
3. The accused mitigated via his advocate to the effect that, he is remorseful and regrets the death of the deceased. He says the incident occurred in the heat of the moment when he fought the deceased.
4. The 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4. 1 as follows:
“Sentences are imposed to meet the following objectives:
I. Retribution: To punish the offender for his/her criminal conduct in a just manner.
II. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
III. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.
IV. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.
V. Community protection: To protect the community by incapacitating the offender.
VI. Denunciation: To communicate the community’s condemnation of the criminal conduct.”
5. In the case ofNicholas Mukila Ndetei v Republic [2019] eKLR the held that, “the sentencing policy states at paragraph 4. 2 that when carrying out sentencing all these objectives are geared to in totality, though in some instances some of the sentences may be in conflict.”
6. The court has considered the evidence on record as to how accused killed the deceased, period in custody, mitigations and the fact that he is a first offender. The court notes that the accused chased deceased and without any provocation or justification inflicted the fatal injuries. It was an act of brutality which calls for harsh sentence in the circumstances.
7. However, the court finds that, in the circumstances of the incident, there are no circumstances to warrant court to mete out life sentence but severe custodial sentence suffices.
8. Thus accused is sentenced to 25 years’ imprisonment with effect from 27/6/2014.
9. Right of appeal explained.
DELIVERED AND SIGNED AT GARISSA THIS 24TH DAY OF MARCH, 2021.
........................
C. KARIUKI
JUDGE