[2017] KEHC 2919 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 17 OF 2017

SALIM JUMA ONYANGO...............................APPELLANT

VERSUS

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

(Appeal against Sentence imposed in Tamu Criminal Case Number 144 of 2017 delivered by P.Olengo (P.M) on 8. 3.17).

JUDGMENT

The trial

The Appellant herein, SalimJuma Onyango has filed this appeal against sentence on a charge of assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the offence were that:-

“On the 6th March 2017, at Karmiroki village in Nyakach sub-County within Kisumu County unlawfully assaulted Mary Atieno Onyango thereby occasioning her actual bodily harm.

Appellant was convicted on his own plea of guilt and was sentenced to serve 4 years imprisonment.

The appeal

Being dissatisfied with the conviction and sentence, the appellant lodged the instant appeal. The court record does not contain the petition of appeal but from the submissions; I gather that the appellant is only challenging sentence. In his written submissions filed on 25 July 2017, the appellant states that:-

(i)He is apologetic

(ii)He is the sole bread winner of his family and it is suffering

(iii)He is a first offender

In opposing the appeal, Ms. Wafula, learned state counsel submitted that appellant assaulted his mother and that the was appropriate in the circumstances.

Analysis and Determination

As the first appellate court in the instant appeal, this court is required and is indeed duty bound to subject the evidence tendered in the lower court to thorough re-evaluation and analysis so as to reach its own conclusion as to the guilt or otherwise of the appellant. In doing so, I am guided by the ruling of the Court of Appeal in the case of OKENO VS. REPUBLIC [1972] E.A.32, where it held that:-

“It is the duty of a first appellant court to consider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld”

The appellant is only appealing on the extent of the sentence. Section 251 of the Penal Code provides:-

Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years.

The trial magistrate imposed a sentence of 4 years.

Issues for Determination

The question for determination is whether the appellant was sentenced to a harsh and excessive sentence.

Determination

Generally speaking, the penalty prescribed by a written law for an offence, unless a contrary intention appears, is the maximum penalty. (See Daniel Kyalo Muema vs Republic, Court of Appeal Criminal Appeal No. 479 of 2007 (Nairobi). This principle is contained in section 66 (1) of the Interpretation and General Provisions Act Cap 2, Laws of Kenya which provides:-

“Where in a written law a penalty is prescribed for an offence under that written law, that provision shall, unless a contrary intention appears, mean that the offence shall be punished by a penalty not exceeding the penalty prescribed”

The principle of law in Section 66 aforesaid is entrenched in Section 26 of the Penal Code which expressly authorizes a court to sentence the offender to a shorter term than the maximum provided by any written law and further authorizes the court to pass a sentence or a fine in addition to or in substitution for imprisonment except where the law provides for a minimum sentence of imprisonment. In particular, Section 26 (2) and (3) of the Penal Code provides:-

(2) Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other shorter period may be sentenced to any shorter term.

(3) A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution for imprisonment..

In Shadrack Kipchoge Kogo vs RepublicCriminal Appeal No. 253 of 2003,the court of appeal stated:-

“Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred”

The trial record shows that the appellant did not mitigate but that he was a first offender.

In Otieno v. Republic [1983] eKLR the court stated that

“the general rule is that a maximum sentence should not be imposed on a first offender”.

The maximum sentence for assault causing actual bodily harm is 5 years. The trial court’s record does not show that there existed any aggravating factors that justified the sentence of 4 years. The fact that appellant was a first offender and that he pleaded guilty to the charge are mitigating circumstances that warranted a more lenient penalty than would have been ordinarily imposed in their absence.

Decision

This court has discretion under Section 354 (3) (b) of the Criminal Procedure Code to increase or reduce the sentence or alter the nature of the sentence and this is one case where the court’s discretion is exercised in favor of the appellant. The upshot of the foregoing is that the appellant’s conviction is upheld but the sentence is set aside and substituted with a term of 12 months imprisonment from the date of conviction.

DATED AND DELIVERED THIS12thDAY OFOctober, 2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Present in person

For the State - Ms. Wafula