[2019] KEHC 5422 (KLR)
The court found that while the original sentence of five years' imprisonment for causing grievous harm was not harsh given the seriousness of the offence and the appellant's leading role in the assault, the appellant's current condition—being heavily pregnant—constituted an exceptional circumstance. The welfare of...
Source-derived case information.
- Citation
- [2019] KEHC 5422 (KLR)
- Parties
- Appellant: Ruth Mumo Muli; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 92 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence set aside and substituted with conditional discharge
- Legal Topics
- Sentencing Principles, Grievous Harm, Mitigating Factors, Non Custodial Sentence
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Mumo Muli
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years' imprisonment for causing grievous harm was excessive in light of the appellant's circumstances.
- 2 Whether the appellant's pregnancy and family situation warranted interference with the custodial sentence.
Ratio Decidendi
The court found that while the original sentence of five years' imprisonment for causing grievous harm was not harsh given the seriousness of the offence and the appellant's leading role in the assault, the appellant's current condition—being heavily pregnant—constituted an exceptional circumstance. The welfare of the unborn child, an innocent party, was a compelling reason to interfere with the custodial sentence. Consequently, the court set aside the five-year imprisonment and substituted it with a conditional discharge under Section 35(1) of the Penal Code, on condition that the appellant does not commit any offence within three years.
Court Disposition
sentence set aside and substituted with conditional discharge
Orders
- The sentence of five years' imprisonment is set aside.
- The appellant is discharged under Section 35(1) of the Penal Code on condition that she does not commit any offence within three years (36 months).
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HCCRA NO. 92 OF 2019
RUTH MUMO MULI........................................APPELLANT
-VERSUS-
REPUBLIC..................................................RESPONDENT
(From the original Judgment before Hon. E. M. Muiru (SRM) in Kilungu
Senior Resident Magistrate’s Court Criminal Case No. 692 of 2018
delivered on 12th day of April , 2019).
JUDGMENT
1. Ruth Mumo Muli was charged and convicted of the offence of causing grievous harm contrary to Section 234 of the Penal Code. Upon conviction after a full hearing, she was sentenced to serve five years’ imprisonment on 12th April, 2019.
2. She appealed against the judgment of the trial court. When the appeal came for directions she said she was ready to orally argue her appeal. She also abandoned her appeal against conviction and only pursued the one against sentence.
3. In her submissions, the Appellant said she is remorseful for what she did. She contended that she is a mother of small children the youngest being aged two (2) years and eight (8) months. She also informed the court that she is expectant and had a problem eating the food at the prison.
4. Mrs. Owenga conceded to the appeal on the main ground of the Appellant’s heavy pregnancy. She urged the court to consider a non-custodial sentence for her.
5. The record shows that the injuries suffered by the complainant who is related to the Appellant were: -
- Chest injury
- Swelling on left breast
- Swollen right hand
- Fracture near the small finger
- Bruises on left leg
6. The evidence clearly reveals the leading role the Appellant played in assaulting the complainant. The sentence of five (5) years in the circumstances cannot be said to be harsh.
7. The only thing that will make this court interfere with her sentence of five (5) years imprisonment is her present condition. She is heavily pregnant with child. This is an innocent creature of God who should not be made to suffer because of the Appellant’s sins.
8. On that ground alone, I hereby set aside the sentence of five (5) years imprisonment and substitute it with an order discharging the Appellant under Section 35(1) Penal Code on condition that she does not commit any offence within three years (36 months).
9. The condition is clearly explained to her.
Orders accordingly.
DELIVERED, SIGNED & DATED THIS 25TH DAY OF JULY 2019, IN OPEN COURT AT MAKUENI.
...........................
H. I. ONG’UDI
JUDGE