(Being an Appeal against the Conviction and Sentence in Chief Magistrate’s Court at Makueni Hon. C.M Maundu CM in Criminal Case No. E256 of 2025)
The appellant was charged with assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars were that on 17 th day of June, 2025 at around 1000hrs at Westlands area, Wote location in Makueni County assaulted one Lawlyn Mutheu a child aged 2 years and 9 months.
When the appellant was arraigned in court on 19 th June, 2025, she pleaded guilty to the charges. The facts were read out to her which she admitted were correct. The trial court accordingly convicted her and subsequently sentenced her to serve four (4) years.
The appellant was aggrieved by the sentence the appellant preferred this appeal raising several grounds which can be compressed as follows:
1. That her plea of guilty was as a result of coercion by arresting officer who advised her to plead guilty to the charges;
2. That the trial court failed to consider her mitigations;
3. That she is remorseful and apologetic and thus pleads for leniency;
4. That she has children who depends on her and they have been subjected to suffering following her imprisonment;
5. That the sentence passed by the trial court was excessive, punitive and oppressive considering that she was a first offender and circumstances of the alleged offence.
The appellant urged the court to grant her non-custodial sentence or reduce the sentence to a reasonable fine.
The appellant filed written submissions dated 29 th April, 2026. Although the respondent through the Ms. Otulo prosecution counsel informed the court that she had filed submissions, I have perused the file record and the Case Tracking System portal and I find that none were filed. I will therefore consider the submission by the appellant only in this appeal.
From the submissions by the appellant, it clear that she is aggrieved by the sentence and not the conviction. She is praying for leniency having learned her lesson in the custody. She urges the court to grant a non-custodial sentence or in the alternative a reasonable fine. The appellant further argue that the trial court did not consider her mitigations.
I have considered the appeal herein and as indicated the appeal is purely on sentence meted by the trial court. The guiding principle applicable when the appellate court is dealing with sentence meted by the trial court were laid down long time ago in the case of Ogola Sio Awour vs Regina (1954) EACA where it was held:
“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by trial judge unless it is evident that the judge acted upon wrong principles or under-looked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”
From the foregoing it is clear that the sentencing is at the discretion of the trial court. The appellate court can only interfere with the sentence by the trial court if the same is either manifestly harsh or extremely lenient. It is clear that the exercise of discretion by the trial court in sentencing is insulated from interference by the appellate court unless the statute set out minimum sentence. All the trial court ought to consider in imposing the sentence is proportionality, equality and uniformity in sentence depending on the nature of the offence committed by the offender. Further in imposing the sentence the court must be guided by the principles of deterrence, rehabilitation, accountability for one’s action, protection of the society, retribution and denouncing the action of the offender. All these principles are found in the sentencing policy guidelines. Further sentence imposed by the court must be commensurate to the nature of the offence. In the case of Ambani vs Republic (1990) KLR the court stated:
“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blame worthiness of the offender and that it is thus not proper exercise of discretion in sentencing for the court to fail to look at the facts and circumstances of the case in their entirety before sentencing for any given sentence.”
Guided by the foregoing it is important to note that the appellant pleaded guilty to the charges when she was arraigned in court. She was a first offender. In her mitigation she was remorseful and asked for forgiveness from the parents of the complainant. She also indicated that she had children who dependent on her. However, from the circumstances of the offence and the fact that the appellant was entrusted with the responsibility to take care of the complainant minor, her action to assault a minor entrusted to her must be denounced. It is notable that the sentence provided for under Section 251 of the Penal Code under which the appellant was charged is 5 years imprisonment. The appellant was sentenced to serve 4 years.
Considering all the circumstances and guided by the principles in sentencing am inclined to review the sentence meted on the appellant by the trial court and sentence her to serve 2 years imprisonment. The 2-year sentence to run from the date the appellant was sentenced by the trial court that is from 19 th June, 2025.
The appeal partially succeeds to the foregoing extent.
Dated, signed and delivered virtually this 9 th day of July, 2026
F.N Kyambia
Judge.
In the presence of
Appellant virtually
Prosecution counsel for the respondent
Court Assistant Ms. Otwo.
2
The appellant was charged with assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars were that on 17 th day of June, 2025 at around 1000hrs at Westlands area, Wote location in Makueni County assaulted one Lawlyn Mutheu a child aged 2 years and 9 months.
When the appellant was arraigned in court on 19 th June, 2025, she pleaded guilty to the charges. The facts were read out to her which she admitted were correct. The trial court accordingly convicted her and subsequently sentenced her to serve four (4) years.
The appellant was aggrieved by the sentence the appellant preferred this appeal raising several grounds which can be compressed as follows:
1. That her plea of guilty was as a result of coercion by arresting officer who advised her to plead guilty to the charges;
2. That the trial court failed to consider her mitigations;
3. That she is remorseful and apologetic and thus pleads for leniency;
4. That she has children who depends on her and they have been subjected to suffering following her imprisonment;
5. That the sentence passed by the trial court was excessive, punitive and oppressive considering that she was a first offender and circumstances of the alleged offence.
The appellant urged the court to grant her non-custodial sentence or reduce the sentence to a reasonable fine.
The appellant filed written submissions dated 29 th April, 2026. Although the respondent through the Ms. Otulo prosecution counsel informed the court that she had filed submissions, I have perused the file record and the Case Tracking System portal and I find that none were filed. I will therefore consider the submission by the appellant only in this appeal.
From the submissions by the appellant, it clear that she is aggrieved by the sentence and not the conviction. She is praying for leniency having learned her lesson in the custody. She urges the court to grant a non-custodial sentence or in the alternative a reasonable fine. The appellant further argue that the trial court did not consider her mitigations.
I have considered the appeal herein and as indicated the appeal is purely on sentence meted by the trial court. The guiding principle applicable when the appellate court is dealing with sentence meted by the trial court were laid down long time ago in the case of Ogola Sio Awour vs Regina (1954) EACA where it was held:
“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by trial judge unless it is evident that the judge acted upon wrong principles or under-looked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”
From the foregoing it is clear that the sentencing is at the discretion of the trial court. The appellate court can only interfere with the sentence by the trial court if the same is either manifestly harsh or extremely lenient. It is clear that the exercise of discretion by the trial court in sentencing is insulated from interference by the appellate court unless the statute set out minimum sentence. All the trial court ought to consider in imposing the sentence is proportionality, equality and uniformity in sentence depending on the nature of the offence committed by the offender. Further in imposing the sentence the court must be guided by the principles of deterrence, rehabilitation, accountability for one’s action, protection of the society, retribution and denouncing the action of the offender. All these principles are found in the sentencing policy guidelines. Further sentence imposed by the court must be commensurate to the nature of the offence. In the case of Ambani vs Republic (1990) KLR the court stated:
“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blame worthiness of the offender and that it is thus not proper exercise of discretion in sentencing for the court to fail to look at the facts and circumstances of the case in their entirety before sentencing for any given sentence.”
Guided by the foregoing it is important to note that the appellant pleaded guilty to the charges when she was arraigned in court. She was a first offender. In her mitigation she was remorseful and asked for forgiveness from the parents of the complainant. She also indicated that she had children who dependent on her. However, from the circumstances of the offence and the fact that the appellant was entrusted with the responsibility to take care of the complainant minor, her action to assault a minor entrusted to her must be denounced. It is notable that the sentence provided for under Section 251 of the Penal Code under which the appellant was charged is 5 years imprisonment. The appellant was sentenced to serve 4 years.
Considering all the circumstances and guided by the principles in sentencing am inclined to review the sentence meted on the appellant by the trial court and sentence her to serve 2 years imprisonment. The 2-year sentence to run from the date the appellant was sentenced by the trial court that is from 19 th June, 2025.
The appeal partially succeeds to the foregoing extent.
Dated, signed and delivered virtually this 9 th day of July, 2026
F.N Kyambia
Judge.
In the presence of
Appellant virtually
Prosecution counsel for the respondent
Court Assistant Ms. Otwo.
2