[2012] KEHC 3503 (KLR)
The court found that although the appellant pleaded guilty and was remorseful, the pre-sentence report was unfavorable due to his uncooperative behavior and provision of false information. The court noted that the sentencing options given by the trial court—five years imprisonment or a fine of Kshs 30,000—were not...
Source-derived case information.
- Citation
- [2012] KEHC 3503 (KLR)
- Parties
- Respondent: Republic; Appellant: Josephat Shiuli Oywaya
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 131 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; appeal partially allowed
- Judges
- A Ali-Aroni
- Legal Topics
- Sentencing Principles, Plea of Guilty, Grievous Harm, Penal Code Section 234
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Josephat Shiuli Oywaya
Appellant
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive or unlawful.
- 2 Whether the appellant is eligible for a non-custodial sentence given the circumstances.
Ratio Decidendi
The court found that although the appellant pleaded guilty and was remorseful, the pre-sentence report was unfavorable due to his uncooperative behavior and provision of false information. The court noted that the sentencing options given by the trial court—five years imprisonment or a fine of Kshs 30,000—were not consistent. The judge exercised discretion to substitute the five-year jail term with a two-year imprisonment while maintaining the fine option, finding this to be a more proportionate and just sentence under the circumstances.
Court Disposition
sentence varied; appeal partially allowed
Orders
- The sentence of five years imprisonment is set aside and substituted with two years imprisonment.
- The option of a fine of Kshs 30,000 is maintained.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISUMU
Criminal Appeal 131 of 2011
REPUBLIC ----------------------------------------------------------------------- PROSECUTOR
-VERSUS-
JOSEPHAT SHIULI OYWAYA ------------------------------------------------------------- ACCUSED
JUDGMENT
The appellant Josephat Shiuli Oywaya was charged with the offence of causing grievous harm contrary to Section 234 of the Penal Code. He pleaded guilty to the offence and was convicted on his own plea and sentenced to 5 years imprisonment with an option fine of Kshs 30,000/=.
The particulars of the offence were that on the 22nd of September, 2010 at 8 am while in Lwanda Police Station within the county of vihiga the appellant unlawfully did grievous harm to one Noah Owuor by knocking out his tooth.
Being aggrieved by the sentence the appellant petitioned this court on appeal on the grounds that he is remorseful, and seeks for a non-custodial sentence. Having considered the petition of appeal I gather from the same that the appeal is against the sentence.
The State opposed the appeal on the grounds that the appellant pleaded guilty and the sentence is lawful.
The court asked for a prejudgment report which report did not favour the appellant. The reports states that he was uncooperative and gave wrong information which did not allow the making of the report. This in my view therefore makes it quite obvious that he is not a candidate for a non-custodial sentence. In any event the court gave him a favourable option of paying fine of Kshs 30,000/= which he failed to opt for.
However I am of the view that the 2 options given in sentencing are not in tandem, in this regard I will maintain the option of fine at Kshs 30,000/=. I will substitute the jail term of 5 years with 2 years imprisonment.
DATED AND DELIVERED THIS 6TH DAY OF JULY, 2012.
ALI-ARONI
JUDGE
In the presence of:
………………………………...……..………… for State
…………………….…………….. Accused person(s) present