[2007] KEHC 2424 (KLR)
The court found that, although the original sentence of one year imprisonment was lawful, it was excessive given the advanced age of the first appellant, the non-serious nature of the injuries, and the fact that both appellants had already served five months in prison. The court exercised its discretion to interfere...
Source-derived case information.
- Citation
- [2007] KEHC 2424 (KLR)
- Parties
- Appellant: Susan Naswa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 111 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Appeal on Sentence, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Naswa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the custodial sentence of 1 year imprisonment imposed on the appellants was excessive in the circumstances.
- 2 Whether the court should interfere with the sentence and substitute it with a lesser or non-custodial sentence.
Ratio Decidendi
The court found that, although the original sentence of one year imprisonment was lawful, it was excessive given the advanced age of the first appellant, the non-serious nature of the injuries, and the fact that both appellants had already served five months in prison. The court exercised its discretion to interfere with the sentence, setting aside the custodial term and substituting it with the period already served, thereby ordering the immediate release of the appellants unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal against sentence is allowed.
- The sentence of 1 year imprisonment for each appellant is set aside.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA Criminal Appeal 111 of 2006
SUSAN NASWA………………………..…...…………..APPELLANT
VS
REPUBLIC……………………………………………RESPONDENT
JUDGMENT OF THE COURT
I have heard the submissions by both learned counsel on the issue of the sentence in this matter.
Although the 1st appellant is not in court, the record shows that she is 65 years old. That is certainly an advanced age and unless there are extreme circumstances that militate against a non-custodial sentence, or in instances where the court lacks discretion in the nature of the sentence to impose, such an elderly woman should not be in prison.
I have read the probation officer’s report. It is said she was rude and unremorseful. In my considered view, the custodial sentence of 1 year was still on the higher side. She has already served 5 months imprisonment. The injuries on the complainant were not serious.
2nd appellant on the other hand was also said to have been unremorseful and hence the sentence passed on him. While appreciating that the sentence imposed on the 2 appellants was lawful, I feel that in the spirit of decongesting prisons and also due to the fact that they have both served a prison term of 5 months, I can justifiably interfere with the said sentence.
Accordingly, the appeal against the sentence is allowed. The sentence of 1 year imprisonment for each appellant is hereby set aside. In its place the sentence is reduced to the term already served. The appellants are accordingly set free unless they are otherwise lawfully held.
W. KARANJA
JUDGE
14/5/2007