[2018] KEHC 3641 (KLR)
The High Court found that the trial court did not sufficiently consider the applicant's status as a first offender and the minor nature of the injuries suffered by the complainant. The sentence of 1 year imprisonment, though within the statutory maximum, was deemed harsh in the circumstances. The court emphasized...
Source-derived case information.
- Citation
- [2018] KEHC 3641 (KLR)
- Parties
- Applicant: James Kibaara Kinyua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 25 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Sentence revised; custodial sentence reduced and community service imposed.
- Judges
- BB Limo
- Legal Topics
- Sentencing Principles, Revision of Sentence, Assault Offences, First Offender Considerations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kibaara Kinyua
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence of 1 year imprisonment for assault was harsh and excessive in the circumstances.
- 2 Whether the trial court failed to consider relevant factors such as the applicant being a first offender and the nature of the injuries.
Ratio Decidendi
The High Court found that the trial court did not sufficiently consider the applicant's status as a first offender and the minor nature of the injuries suffered by the complainant. The sentence of 1 year imprisonment, though within the statutory maximum, was deemed harsh in the circumstances. The court emphasized the need for proportionality in sentencing and the importance of considering non-custodial options for first offenders convicted of minor assaults. The court also took into account the probation report, which was not available to the trial court, and concluded that a combination of a shorter custodial sentence and community service would be more appropriate and just.
Court Disposition
Sentence revised; custodial sentence reduced and community service imposed.
Orders
- The sentence of 1 year imprisonment is set aside.
- The applicant is sentenced to 3 months imprisonment and thereafter 3 months community service to be supervised by the Probation Officer.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
HCCR MISCELLANOUS CASE NO. 25 OF 2018
(FORMERLY CHUKA CMCR NO.63 OF 2017)
REPUBLIC......................................................RESPONDENT
VERSUS
JAMES KIBAARA KINYUA..............................APPLICANT
R U L I N G
1. JAMES KIBAARA KINYUA,the applicant was charged and convicted for assaulting Dorris Igonji Murungi on 23rd December, 2016 contrary to Section 251 of the Penal Code. He was sentenced to serve 1 year imprisonment.
2. He has now moved this court for revision of sentence under Sections 362 & 364 of Criminal Procedure Code contending that the sentence meted out against was a bit harsh . He has averred that he was found guilty of a mis demeanor and should have been given an option of fine or non custodial sentence.
3. The cited law under which the applicant was convicted and sentenced provides for a maximum sentence of five years. The applicant herein as observed was sentenced to serve 1 year imprisonment by the trial court. This court has been told to interfere with the exercise of the lower court's discretion on the basis that the sentence was harsh. I have called for the lower court's file and have perused through the proceedings. I have looked at the nature of injuries suffered by the complainant and noted that they were minor soft tissue. I also noted from the exhibits 1, 2 and 3 that the complainant had reported that she had been raped but medical examination was negative. She later during the trial denied having reported having been raped. That denial in my view is inconsistent with the report made at Magutuni Police Post and appears to suggest that there was more in the case than the report made to the police and the attendant prosecution of the applicant. However this is now immaterial in this application.
4. I have also noted that the applicant was a first offender with a family to fend for. These two aspects are relevant factors which should have been considered in determining appropriate sentence of course commensurate with the offence. Of course slapping another person is an offence and amounts to an assault especially when the victim is a woman and vulnerable to an assailant who is a man. The trial court however should have taken all factors into consideration and hand out a sentence commensurate with the offence. This court has also looked at the probation report dated 4th October, 2018 which of course was not part of the consideration during the sentence at the trial court. A custodial sentence of 1 year in the circumstances appears rather harsh.
5. In the premises, this court under Section 364 (1) (b) of the Criminal Procedure Code hereby sets aside the sentence of 1 year and in its place sentence the applicant to 3 months in jail and thereafter 3 months Community Service to be identified and supervised by the Probation Officer near the place where the applicant comes from. The Probation Officer shall identify a public facility within Sub-County where the applicant comes from and supervise Community Service and a report filed in this court upon finishing the term I have given here (3 months). In default of Service to the Community, the applicant shall be arrested and taken back to prison to finish the remaining term in prison.
Dated, signed and delivered at Chuka this 8th day of October, 2018.
R. K. LIMO
JUDGE
8/10/2018
Ruling dated, signed and delivered in the open court in presence of Machirah for state.
R.K. LIMO
JUDGE
8/10/2018