[2008] KEHC 2120 (KLR)
The High Court found that while the offence committed by the appellants was grave and indefensible, particularly as it was perpetrated against their own defenceless child, the mitigation offered—specifically the presence of a younger child requiring care—warranted a reconsideration of the sentences imposed by the...
Source-derived case information.
- Citation
- [2008] KEHC 2120 (KLR)
- Parties
- Appellant: Rose Lydia Wawira; Appellant: Silas Njiru Nyaga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 20 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentences reduced
- Judges
- MM Kasango
- Legal Topics
- Sentencing, Grievous Harm, Child Abuse, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Lydia Wawira
Appellant
Silas Njiru Nyaga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences imposed by the lower court on the appellants for the offence of grievous harm were appropriate in the circumstances.
- 2 Whether the mitigation presented by the appellants warranted a reduction of sentence.
Ratio Decidendi
The High Court found that while the offence committed by the appellants was grave and indefensible, particularly as it was perpetrated against their own defenceless child, the mitigation offered—specifically the presence of a younger child requiring care—warranted a reconsideration of the sentences imposed by the lower court. The appellate court exercised its discretion to set aside the original sentences of 3.5 and 7 years imprisonment, substituting them with a uniform sentence of 2 years imprisonment for each appellant, to run from the date of the original sentence. The court balanced the seriousness of the offence with the mitigating factors, finding that a reduced but custodial...
Court Disposition
appeal allowed in part; sentences reduced
Orders
- The sentences imposed by the lower court on both appellants are set aside.
- Both appellants are sentenced to 2 years imprisonment each, effective from 14th December 2006.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 20 of 2007 & 80 of 2007 (Consolidated
ROSE LYDIA WAWIRA ……………............……… APPELLANT
Versus
REPUBLIC ………………………..……………… RESPONDENT
(Being an appeal against the conviction and sentence by M. R. GITONGA, Senior
Principal Magistrate, in the Chief Magistrate’s Criminal Case No. 5637 of 2006 at
NYERI)
CONSOLIDATED WITH
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO. 80 OF 2007
SILAS NJIRU NYAGA ……..……………………… APPELLANT
Versus
REPUBLIC ………………………..……………… RESPONDENT
(Being an appeal against the conviction and sentence by M. R. GITONGA, Senior
Principal Magistrate, in the Chief Magistrate’s Criminal Case No. 5637 of 2006 at
NYERI)
JUDGMENT
The first and second appellant are a husband and wife and the parents of the complainant. They were charged in the lower court with Grievous Harm contrary to Section 234 of the Penal Code. They both pleaded guilty as charged. The facts given by the prosecution were that on 7th December 2006 at Ruringu Estate the appellants left their home for the trading centre. On returning home they found their kshs.700 missing from where they had kept it. They inquired from their nine year old son Martin Mutembei Njiru the whereabouts of the money. He denied having seen or having taken the money. The appellants insisted that he had taken the money. The second appellant then put a panga on fire and when it was red hot he began to burn their son on the buttocks. The first appellant also joined in and began to assault the child in a similar method. It was their son’s screams that attracted their neighbours who came to his rescue. The matter was reported to the Assistant Chief and the child was taken to Nyeri PGH. Both appellants confirmed that the facts were correct. The first appellant in mitigation stated that she had a small child who was two years old. She therefore sought that she be allowed to take care of the child. In the second Appellant’s mitigation he stated that the complainant was their child and that he had stolen the money. He also confirmed that they have another smaller child. The lower court considered their mitigation and proceeded to sentence the first appellant to 3 ½ years imprisonment. The second appellant was sentenced to seven years imprisonment. They both have brought their appeal against sentence.
The offence that they faced has a maximum sentence of life imprisonment. The offence they committed was against a defenceless young child is indefensible. The lower court considered the mitigation they presented and I too has considered their mitigation. Having so considered I find that it is necessary to reconsider their sentence. Accordingly I do hereby set aside the sentence against both appellants passed by the lower court on 14th December 2006. Instead I substitute and sentence both appellants to 2 years imprisonment each. That sentence will begin to run from 14th December 2006.
DATED AND DELIVERED THIS 28TH DAY OF JULY 2008
MARY KASANGO
JUDGE