[2011] KEHC 642 (KLR)
The court found that the appellant's conviction and sentence were proper as he pleaded guilty to the charge of attempted arson, and there was no credible evidence of insanity to negate criminal responsibility. The Probation Officer's Report attributed the appellant's conduct to substance abuse rather than mental...
Source-derived case information.
- Citation
- [2011] KEHC 642 (KLR)
- Parties
- Appellant: Wilson Mwangi Nyambura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 251 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- MJA Emukule
- Legal Topics
- Attempted Arson, Plea of Guilty, Sentencing Principles, Mental Health Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Mwangi Nyambura
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction and sentence for attempted arson were proper given the appellant's plea of guilty.
- 2 Whether the appellant's alleged insanity or mental health status should have affected the conviction or sentence.
- 3 Whether the sentence of five years imprisonment was harsh or excessive in the circumstances.
Ratio Decidendi
The court found that the appellant's conviction and sentence were proper as he pleaded guilty to the charge of attempted arson, and there was no credible evidence of insanity to negate criminal responsibility. The Probation Officer's Report attributed the appellant's conduct to substance abuse rather than mental illness. The sentence of five years imprisonment was deemed proportionate given the seriousness of the offence and the appellant's history of threats against the complainant and others. The court rejected the claim of insanity as a red herring and dismissed the appeal for lack of merit, but ordered a precautionary psychiatric examination for the appellant.
Court Disposition
appeal dismissed
Orders
- The appellant's appeal is dismissed as having no merit.
- The appellant to be escorted by prison authorities to the Provincial General Hospital for psychiatric examination and a report to be filed in court within 30 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 251 OF 2010
(From original conviction and sentence in criminal case No. 1995 of 2010 of the Principal Magistrate\'s Court at Nyahururu - T. Matheka, P.M.)
WILSON MWANGI NYAMBURA...........................................................................................APPELLANT
VERSUS
REPUBLIC..............................................................................................................................RESPONDENT
JUDGMENT
The appellant was charged and convicted on his own plea of guilty to the charge of attempted arson contrary to Section 333(a) of the Penal Code(Cap. 63, Laws of Kenya). He was sentenced to five years imprisonment by the lower court after perusing an unfavourable Probation Officer\'s Report from the Probation Officer Nyandarua North District.
Aggrieved with both his conviction and sentence he appealed to this court on four grounds all of which were in mitigation -
(1)he pleaded guilty,
(2) he is a first offender and he did not know that the offence would have resulted in a sentence due to the fact that his anger was beyond control,
(3) that the complainant owed him Sh 2,000/= which the complainant kept lying to him that he would pay,
(4) he is a young family man of 22 years of age and has realized that he made a mistake, and prayed for leniency.
And for those reasons the appellant prayed that his appeal be allowed, that the sentence was harsh, and that he wished to be present during the hearing of his appeal.
The appellant was indeed present during the hearing of his appeal. In his written submissions the appellant submitted that he is a "Mathare Patient", and that he has already served his term and that he has reformed and that his term should be reduced.
On his part Mr. Omutelema learned Senior Principal State Counsel submitted though the appellant pleaded guilty to the offence, he was not comfortable with the conviction, because a reference to "insanity" in 1st paragraph of p.2 of the Probation Officer\'s Report referred to above.
The learned trial magistrate considered the Report while sentencing the appellant. I have also considered the Report, and it is clear to me from the p.2, 1st paragraph that "insanity" was an excuse introduced by the mother in order to get her son, the appellant, from certain prosecution for alleged incident of defilement. According to the Report the then bad behavior of the appellant was due to abuse of psychotropic substances - namely "bhang" and not "insanity". In the circumstances, I doubt the excuse of insanity for the appellant\'s alleged numerous transgressions against his society.
The punishment for attempting to set fire to a building, a dwelling house, is fourteen years imprisonment. The appellant was sentenced to 5 years imprisonment. From the Probation Officer\'s Report, that sentence was quite proportional to the several prior threats the appellant had issued not only against the complainant in this case, but to other people also, including his grandmother.
I am not a Doctor, but if there was any untoward conduct by the appellant during his period in prison, the authorities would have noticed it, and made an appropriate report. The claim of "insanity" is a red herring. I therefore reject the claims of insanity, and dismiss the appellant\'s appeal as having no merit at all.
For precautionary purpose and for the record, I direct that the appellant be escorted by the prison authorities to the Provincial General Hospital for psychiatrist examination, and a report made within 30 days of today, filed in court and brought to the attention of the court for necessary directions.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 14th day of October, 2011
M. J. ANYARA EMUKULE
JUDGE