[2024] KEHC 796 (KLR)
The court found that the prosecution failed to establish the charge of murder but proved the lesser offence of causing grievous bodily harm contrary to section 234 of the Penal Code. In determining the sentence, the court considered the accused's advanced age, remorse, positive pre-offence character, lack of prior...
Source-derived case information.
- Citation
- [2024] KEHC 796 (KLR)
- Parties
- Applicant: Republic; Defendant: Clestone Ekina Masinde; Defendant: Constant Ekina Wawire
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 4 of 2010
- Procedural Posture
- Criminal Case / Sentence
- Outcome
- The accused was convicted of causing grievous bodily harm and sentenced to three years' imprisonment from the date of conviction.
- Judges
- SC Chirchir
- Legal Topics
- Grievous Bodily Harm, Sentencing Principles, Mitigation, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Clestone Ekina Masinde
Defendant
Constant Ekina Wawire
Defendant
Procedural Posture
Criminal Case / Sentence
Legal Issues
- 1 Whether the accused should be convicted of murder or the lesser offence of causing grievous bodily harm.
- 2 What is the appropriate sentence for causing grievous bodily harm under section 234 of the Penal Code.
Ratio Decidendi
The court found that the prosecution failed to establish the charge of murder but proved the lesser offence of causing grievous bodily harm contrary to section 234 of the Penal Code. In determining the sentence, the court considered the accused's advanced age, remorse, positive pre-offence character, lack of prior criminal record, and the fact that he had already spent seven years in custody. Balancing these mitigating factors against the seriousness of the offence and the prosecution's submissions, the court sentenced the accused to three years' imprisonment from the date of conviction.
Court Disposition
The accused was convicted of causing grievous bodily harm and sentenced to three years' imprisonment from the date of conviction.
Orders
- The accused is sentenced to three years in prison with effect from the date of conviction.
- Right of appeal within 14 days.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Masinde & another (Criminal Case 4 of 2010) [2024] KEHC 796 (KLR) (1 February 2024) (Sentence)
Neutral citation: [2024] KEHC 796 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case 4 of 2010
SC Chirchir, J
February 1, 2024
Between
Republic
Prosecutor
and
Clestone Ekina Masinde
1st Accused
Constant Ekina Wawire
2nd Accused
Sentence
1. The accused herein was charged with murder. After full trial, the court found that the murder charge was not established and convicted the accused of the lesser charge of causing grievous bodily harm on the deceased contrary to section 234 of the Penal Code.
2. A presentencing report was prepared and the parties were given a chance to submit. In mitigation, the accused submitted that he is remorseful, he is 66 years old and asks for leniency.
3. For the state, the prosecution seeks custodial sentence. The prosecution insists that this was a case of murder ,and the accused only got away because of lack of post mortem Report.
4. I have perused the presentencing report and considered the submissions of both parties. The presentencing report indicates, that prior o the incident the accused was a person of sound character. He got on well with the community and held the position of the village elder. There was no prior criminal record.
5. The offence of causing grievous bodily harm attracts a sentence of up to life imprisonment. I have taken into consideration the aforegoing submissions and the findings of the probation report.
6. I have further considered the fact that the accused has spent 7 years in custody.
7. In view of all the aforegoing , I hereby sentence the accused to 3 years in prison, with effect from the date the date of conviction.Right of Appeal, 14 days.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 1ST DAY OF FEBRUARY, 2024S. ChirchirJudgeIn the presence of:-Mr. Rono- Court Assistant.The Accused.Mr. Munyeno for the Accused.Mr. Liena for DPP