[2022] KEHC 16301 (KLR)

Sigei v Republic (Criminal Appeal E027 of 2022) [2022] KEHC 16301 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16301 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E027 of 2022

MW Muigai, J

December 8, 2022

Between

Emmanuel Kipkoech Sigei

Appellant

and

Republic

Respondent

(Being an Appeal from the Conviction and Sentence of Hon. B. A. Louva (Resident Magistrate) Delivered On 17/02/2022 at the Chief Magistrate’s Court in Machakos In Machakos Cr. E079 Of 2022)

Ruling

Trial Court Record 1. The appellant herein Emmanuel Kipkoech Sigei was charged with an offence of assault causing actual bodily harm contrary to section 251 of thePenal Code.

2. The particulars being that on the February 6, 2022 at Kyumbi Township in Athi River Sub- County within Machakos County willfully and unlawfully assaulted Caroline Simaloi Kamamia by use of a knife thereby occasioning her actual bodily harm.

3. The appellant was arraigned in court on February 8, 2022. The charge was read out to him and he responded (Ni ukweli). A plea of guilty was on entered on his behalf and the trial court ordered for a re-sentence report to be carried out.

4. The pre-sentence report was presented in court on February 11, 2022.

5. On February 17, 2022 the trial court after considering the pre-sentence report noted that the said report was not favorable and convicted the appellant to serve two (2) years imprisonment.

Appeal 6. Aggrieved by the conviction by the trial court the appellant filed grounds of appeal based on the following grounds;-a.that the trial magistrate erred in both law and facts by convicting him before explaining to him the consequences of pleading guilty.b.That he be furnished with the trial proceedings records to peruse and prepare for more grounds before the hearing of this appeal.

Application 7. The appellant vide his letter filed in court on December 5, 2022 wrote informing this court that he was withdrawing his appeal based on current developments due to the ongoing decongestion exercise in prison. He further stated that he has been interrogated by the probation officer on the request to grant him a non-custodial sentence in the resentencing application.

8. A report by the probation in respect of the appellant dated December 2, 2022 was filed on December 7, 2022. An earlier probation report was filed on February 17, 2022 before sentencing by the trial court.

9. The accused person underwent formal schooling in various schools due too family migration and he completed KCPE and secured admission to secondary school instead ran away from home. He claims that he has been traversing the country in various towns in search of casual jobs. He was on transit to Mombasa when the incident occurred while at Machakos where he assaulted the commercial sex worker upon disagreement.

10. The said report gave the history of the appellant herein both in family and community level. The community report was negative as it portrayed him as a mischievous person, a threat to the local community. The community was apprehensive that he should be taken for rehabilitation first before being released to the community. The family also gave a negative report about him but they believe he has learnt his lesson for the period he has bene in prison and are willing to forgive him and accept him back home and offer him better parental care and guidance

11. The Probation Officer’s report depicts the appellant as truant, dishonest untruthful and a young man of loose morals by engaging in illicit sexual activities.

12. The victim sustained injuries from the assault which have healed. After the incident the victim found the accused person a threat to society.

13. Clause 23 of the Judiciary Sentencing Policy Guidelines provides for the mitigating circumstances in sentencing and warrant a more lenient penalty than would be ordinarily imposed in their absence. Among the relevant ones to this case include:..........5)Age where it affects the responsibility of the individual offender7)Being a first offender8)Remorsefulness.....10)Pleading guilty at the earliest opportunity and co-operation with the prosecution and the police.Also, the views of the victim

12. The ODPP filed response to the appeal before it was withdrawn and submitted that the conviction and sentence were on firm legal ground.

13. This court considers that the offence of assault was/is a misdemeanor and the accused person pleaded guilty to the offence. The victim did not sustain permanent injuries and /or grievous harm or maim.

14. The accused is a single young man aged 20 years old who has dropped from school and has a difficult relationship with the family, One report indicates he is a stepson and other indicates that he is an adopted child. He is described as a truant deviant and cunning. The records confirm that he is a 1st offender was remorseful and admitted the offence on his plea of guilt. He explained the circumstances that led to the assault of the victim, he was protecting the money he had and he was angry after he found the victim in the company of another man. Despite the reasons, the assault was not excusable conduct.

15. The accused was rightly charged and convicted on the charge of assault a misdemeanor serving custodial sentence for almost 9-10 months now is sufficient retribution and punishment. The accused person’s young age and record as a 1st offender is entitled to another chance to reform and be rehabilitated back in society and to eke out a living through honest hard work and/or obtain skills training.

16. For these reasons, this court is inclined to grant non – custodial sentence for the remaining sentence of 1 year is under supervised and conditional discharge/probation.

Disposition: 1. The appellant herein was sentenced on February 17, 2022 and has therefore served quite a substantial time.

2. This court orders that he be placed for a period of one -year supervised probation under section 35 of the Penal Code to be of good conduct and engage in lawful skill training and/or source of livelihood.

3. In default of order (2) above to serve the remaining sentence in custodial sentence.

It is so ordered.

DATED, DELIVERED & SIGNED AT MACHAKOS THIS 8TH DAY OF DECEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M. W. MUIGAIJUDGEIn the presence of:Absent - AppellantMr. Mwongera - For The RespondentPatrick - Court Assistant13/12/2022Coram: Muigai, LJMr. Dominic Kyalo – Probation Officer – MachakosMs Eunice Kiinya – Probation Officer – MachakosWe are seeking a Court Order that the Appellant/Applicant Emmanuel Kipkoech Sigei be released by Prisons Department to Probation Officer at Kericho and we can liase and take from there and he shall be taken care of from there.COURT: Pursuant to the Ruling delivered on 8/12/2022 the Prisons Department shall transport and release the subject Emmanuel Kipkoech Sigei to Kericho Probation Officer for implementation and enforcement of the Court Order and to liase with Probation Officer Machakos.M. W. MUIGAIJUDGE****13/12/2022