[2018] KEHC 4637 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

CRIMINAL APPEAL NO 124 OF 2017

ROTICH CHEBII................APPELLANT

VERSUS

REPUBLIC........................RESPONDENT

[Appeal from the original conviction and sentence in the Principal Magistrate’s Court at Kabarnet delivered on the 23rd day of July, 2015 by Hon. S.O. Temu, PM]

JUDGMENT

1. The appellant herein was charged with the offence of grievous harm contrary to section 234 of the Penal code. The particulars of the charge were that Rotich Chebii on the 14th day of December, 2014 at Rabai Trading Centre within Baringo County unlawfully did grievous harm to Simon Komen.

2. The appellant appealed with the following grounds of appeal:

1. That I am a first offender.

2. That the current offence originated from the use of alcohols and drugs of which I promise to abandon and become a good citizen as per the laws and rules of the land.

3. That the honourable court may re-evaluate and analyse this sentence afresh as it may deem lenient to.

4. That I am the only boy whom my parents depend on, given that they are old in age.

5. That the honourable court may grant me a lesser sentence or a non/custodial sentence as the court may deem fit.

3. The appellant submitted his written submissions and stated as follows:

I am a convict serving a sentence of seven years, I came from a poor family of which I was struggling on my casual part time jobs in order for my family to get basic needs and my aged parents depend on me of their old age they cannot afford to do casual jobs.

I have learned the mistakes through the tough conditions in prison and I promise to be an upright citizen and show lawful acts that may not gross purpose with the laws of the land.

The sentence that was ordered by Hon. S.O. Temu on 23rd July, 2015 had no remission and am unable now to assists my family, I come from an arid area where there are no farm produce, my family wholly depends on me this mistakes it hard for their survival in my absence I have children their mother had to leave them alone upon my conviction they are now struggling to meet their basic assistance through my aged parents.

I have trained in prison and gained skills in tailoring and I am now a Christian convert who believes fully in God and even reached to my fellow inmates. Kindly pray for a second chance to build up the nation through my skills and provide for my family now that I have learned my mistakes of which they emanated from the use of alcohol and influence of bad company which I promise to shun.

Since I am a first offender and though my rehabilitation I have gained skills that will benefit my neighbouring citizen, I kindly request for this court to give me lesser sentence to enable me to meet my family and I do promise I will be a law abiding citizen.

4. In reply the Prosecution Counsel, Ms. Kitilit, made oral submissions that:

The offence of grievous harm the court was lenient in the 7 years sentence as the offence carries a life sentence. There was no remission during the time he was sentenced. We object to the reduction of the sentence.

Determination

5. The accused does not challenge the finding of the trial court on conviction. He simply requests for a reconsideration of the sentence in view of the fact that the provision for remission was not applied to his case as he was sentenced as stated by the DPP during the period that the provision for remission under section 46 of the Prisons Act had been removed by the Statute Law (Miscellaneous Amendment) Act 2014 before it was restored by the Statute Law (Miscellaneous Amendment) Act 2015.

6. Had the sentence of 7 years imposed on 23/7/2015 been passed a year earlier or later, when the provision for remission was in force, the appellant would have served 4 years 6 months imprisonment. In his sentencing the court factored the issue of seriousness of the injury noting that the hit on the head could have killed the complainant and gave due allowance that the appellant was a first offender, as follows:

“Sentence

I have considered the nature for the offence and finds that the accused is a first offender. The accused had hit the complainant on the head and it was suspected that he had killed him but God had saved him. The injury was serious and there was no reason at all why the accused had inflicted the same on the complainant. The two families have not been able to reconcile and thus the accused is not fit for non-custodial sentence. The offence calls for life sentence but since the accused is a first offender he will not be so sentenced. The accused is thus granted a chance to reform within prison where he should be able to learn some trade. He will thus serve 7 years imprisonment.”

7. It is not clear from the Record of the Court on Sentencing that the court was alive to the fact of the removal of the provision for remission only seven months earlier by the Statutory Law (Miscellaneous Amendment Act No. 18 of 24th November 2014 (coming into effect on 8th December 2014). It may be that the court expected the appellant to be entitled to the 1/3 remission for good conduct in the usual way. I would find this as an important factor in considering whether, in accordance with Wanjema v. R (1971) EA 493, to review the sentence passed on the appellant.

8. While I agree with the view of the trial court on the impact on the sentence of the seriousness of injury in assault cases and noting the 12mm fracture on the skull, I would consider that the sentence of seven (7) years imprisonment is excessive having regard to the circumstance of the offence. The appellant and the complainant were, according to the PW3 and the statement of the accused himself as well as the history as recorded in the Discharge Summary form from Provincial General Hospital, fighting over an abuse by the complainant according to the appellant, or a lady according to the complainant’s history recorded in the Discharge Summary.

9. PW3 said –

“On 14/12/2014, I was taking home goats from the forest at about 6. 00pm and the two people fighting I had then found the two fighting while naked. I had had watched the two fight and Chebii had picked a stone with his right hand and he had hit Simon on the head and he fell down.”

10. PW2 confirmed on cross-examination that both the appellant and the complainant “had no shirts” giving credence to the evidence of PW3 and the appellant that the two had been fighting. As recorded on the Discharge Summary form from Provincial General Hospital - Nakuru dated 1/1/2015 the patient had complained “of having been assaulted by a known person to him after having a quarrel over a lady….”

11. The appellant in unsworn statement said –

“The charges are not true. On 18/12/2014 I was from the shamba when I met the complainant on the road and he had abused me. We started to argue and we fought. We then left.”

12. It was not a case of a cold blooded attack on an innocent victim; the victim and the attacker herein argued and then they were engaged in a fight.

Orders

13. In the circumstances of the offence, I would find the appellant’s blameworthiness diminished to the extent of the circumstances of the fighting that ensued their quarrel over whatever was the matter between them. I find that an imprisonment for a term of 3 1/2 years to be sufficient punishment. In accordance with the powers of the court under section 354 (3) of the Criminal Procedure Code, without altering the finding of guilt and the resultant conviction for the offence of grievous harm contrary to section 234 of the Penal Code, reduce the sentence to imprisonment for three and a half (3 ½) years.

14. As the appellant has already served slightly over 3 years, which is a substantial part of the 3 ½ year sentence, and noting that the appellant did not receive the benefit of 1/3 remission of the imprisonment term, I consider that the appellant has sufficiently been punished for his offence and, accordingly, direct that the appellant shall be released from prison forthwith unless he is otherwise lawfully held.

DATED AND DELIVERED ON 30TH DAY OF JULY, 2018.

EDWARD M. MURIITHI

JUDGE

Appearances: -

Appellant in person.

Ms. Kitlit, Prosecution Counsel, for the Director of Public Prosecutions.