(Being an appeal from the conviction and sentencing of Hon. V. Karanja (PM) in Iten Senior Principal Magistrate’s Court in Criminal Case No. E888 of 2023 delivered on 13/2/2023)
JUDGMENT
1. The Appellant was charged with assault causing actual bodily harm contrary to contrary to Section 251 of the Penal Code. The particulars of the offence are that on 14/8/2023 at around 1840hrs at Kipka Sub-location, Kiptuilong Location in Keiyo North Sub-County within Elgeyo Marakwet County wilfully and unlawfully assaulted Joel Kirarei Yego by hitting him on both hands using a walking stick thereby occasioning him actual bodily harm.
2. The Appellant pleaded not guilty to all the charge and the case went to full trial in which the prosecution called three (3) witnesses. By judgment delivered on 13/2/2024, the Appellant was convicted on the main charge and sentenced on the same date to serve (5) years imprisonment.
3. Being dissatisfied with the decision of the trial Court, the Appellant instituted this appeal on 26/2/2024, initially against both conviction and sentence. However at the mention of 4th April 2025, the Appellant orally indicated to court that he was withdrawing his Appeal against conviction for reasons that the Appeal as filed had taken too long. That he would now pursue the Appeal as against sentence only.
4. The court noted this and directed that he files submissions on the Appeal as amended. The same were filed on 8th April 2025. The Counsel for the State had filed their submissions dated 16th September 2024 before the Appellant amended his Appeal encompassing all the grounds raised in the initial Appeal to which they relied on fully. The court will therefore consider the same as appropriate.
5. Specific to the sentence, the Ground of Appeal is as follows; on four grounds reproduced verbatim as follows: -
1) That the Court erred in law and fact by awarding a predetermined mandatory sentence of 5 years’ imprisonment without considering the mitigating circumstances of the case.
The Appellant’s Submissions
6. The Appellant solely submitted on the issue of sentence. He urged the Court to invoke its power of review under Section 362 of the CPC and resentence him to serve Probation Community Service, pointing out that the Court is seized with the requisite jurisdiction under Article 165(3) (b) of the Constitution of Kenya.
7. The Appellant submitted that he is remorseful, he has trained on biblical teachings and several others courses and he has learned a lot in prison on how to manage anger and live harmoniously and peacefully with other people in society. The Appellant added that he has since reconciled with his father whom he assaulted and that his father has since forgiven him. He further submitted that he is reformed and ready to be a law abiding citizen and wishes to reunite with his 4 children and be a responsible father by providing for his children given that the youngest is 6 years old.
The Respondent’s Submissions
8. Regarding the sentence, Counsel submitted that sentencing is the discretion of the trial Court, except, however, the discretion must be exercised judiciously and not capriciously. Counsel further submitted that the trial Court must be guided by the evidence and sound legal principles, it must take into account all relevant factors and eschew all extraneous or irrelevant factors and that the appellate Court would only interfere with the sentence imposed by the trial Court if the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the Court acted upon wrong principle or if the Court exercised its discretion capriciously. He cited Makhandia J (as he then was) in Simon Ndungu Murage vs. Republic Criminal Appeal No.275of 2007, Nyeri.
9. Counsel observed that Section 251 of the Penal Code provides that a person who is guilty of the offence of assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years and the Appellant was sentenced to five years imprisonment as provided by the Act.
10. Counsel submitted that trial Court considered the nature of the offence, the principles of sentencing and the amount of sentence imposed. Counsel urged that the sentence was legal and appropriate to the offence. Counsel further submitted that the Court noted that the Complainant and the Appellant are father and son and that the Appellant had on several occasions, assaulted the Complainant over a land dispute. Counsel maintained that there are aggravating factors that came out in trial. From the record of Appeal and the grounds of Appeal there is absolutely no reason to interfere with the sentence imposed by the learned Magistrate
Determination
11. Section 251 of the Penal Code provides as follows: -
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
12. Sentencing is the discretion of the Trial Court. However, the discretion must be exercised judiciously and not capriciously. The Court must be guided by the evidence and sound legal principles. It must take into account all relevant factors and eschew all extraneous or irrelevant factors. The Court of appeal in Shadrack Kipchoge Kogo vs Republic, Eldoret Criminal Appeal No 253 of 2003 (quoted in Arthur Muya Muriuki vs ~Republic (2015) eKLR), observed as follows: -
“Sentencing is essentially an exercise of the trial Court and for the Court to interfere, it must be shown that in passing sentence, the Court took into account an irrelevant factor or that a wrong principle was applied or short of these the sentence was so harsh and excessive that an error in principle must be inferred.”
13. Section 251 of the Penal Code provides that a person who is guilty of the offence of assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.
14. The court notes that in sentencing the Appellant, the Trial Court considered the Appellant’s mitigation and gave the reason for the sentence that it meted out. The Learned Trial Magistrate took into consideration the fact that the Appellant has a previous conviction even as he committed the offence with which he had been charged ad and that this being the case, he seemed not to learn from his past mistakes. Further, in view of the fact that the complainant was the Appellant’s father, the Learned Magistrate was of the opinion that the Appellant needed to be kept away from his aging father to enable the old man enjoy his sunset years in peace.
15. I have considered the accused reasons for seeking a review of sentence as well as his mitigation as herein summarised and particularly that he has since made peace with and reconciled with his father. However, in addressing my mind to the same as against the reasoning by the Learned Magistrate in passing sentence, I am satisfied that the reasons outlined by the Learned Magistrate and particularly the fact that the complainant is the accused father who is aged and that the Appellant is a repeat offender outweighs the Appellant’s plea of remorse. I therefore find that no good reason has been advanced sufficient to warrant the court interfering with the sentence of 5 years’ imprisonment imposed by the Trial Court. The same is accordingly upheld and the Appellant’s Application dismissed for want of merit. Right of Appeal 14 days.
Read Dated and Signed at ELDORET on 9th July 2025.
JUDGMENT
1. The Appellant was charged with assault causing actual bodily harm contrary to contrary to Section 251 of the Penal Code. The particulars of the offence are that on 14/8/2023 at around 1840hrs at Kipka Sub-location, Kiptuilong Location in Keiyo North Sub-County within Elgeyo Marakwet County wilfully and unlawfully assaulted Joel Kirarei Yego by hitting him on both hands using a walking stick thereby occasioning him actual bodily harm.
2. The Appellant pleaded not guilty to all the charge and the case went to full trial in which the prosecution called three (3) witnesses. By judgment delivered on 13/2/2024, the Appellant was convicted on the main charge and sentenced on the same date to serve (5) years imprisonment.
3. Being dissatisfied with the decision of the trial Court, the Appellant instituted this appeal on 26/2/2024, initially against both conviction and sentence. However at the mention of 4th April 2025, the Appellant orally indicated to court that he was withdrawing his Appeal against conviction for reasons that the Appeal as filed had taken too long. That he would now pursue the Appeal as against sentence only.
4. The court noted this and directed that he files submissions on the Appeal as amended. The same were filed on 8th April 2025. The Counsel for the State had filed their submissions dated 16th September 2024 before the Appellant amended his Appeal encompassing all the grounds raised in the initial Appeal to which they relied on fully. The court will therefore consider the same as appropriate.
5. Specific to the sentence, the Ground of Appeal is as follows; on four grounds reproduced verbatim as follows: -
1) That the Court erred in law and fact by awarding a predetermined mandatory sentence of 5 years’ imprisonment without considering the mitigating circumstances of the case.
The Appellant’s Submissions
6. The Appellant solely submitted on the issue of sentence. He urged the Court to invoke its power of review under Section 362 of the CPC and resentence him to serve Probation Community Service, pointing out that the Court is seized with the requisite jurisdiction under Article 165(3) (b) of the Constitution of Kenya.
7. The Appellant submitted that he is remorseful, he has trained on biblical teachings and several others courses and he has learned a lot in prison on how to manage anger and live harmoniously and peacefully with other people in society. The Appellant added that he has since reconciled with his father whom he assaulted and that his father has since forgiven him. He further submitted that he is reformed and ready to be a law abiding citizen and wishes to reunite with his 4 children and be a responsible father by providing for his children given that the youngest is 6 years old.
The Respondent’s Submissions
8. Regarding the sentence, Counsel submitted that sentencing is the discretion of the trial Court, except, however, the discretion must be exercised judiciously and not capriciously. Counsel further submitted that the trial Court must be guided by the evidence and sound legal principles, it must take into account all relevant factors and eschew all extraneous or irrelevant factors and that the appellate Court would only interfere with the sentence imposed by the trial Court if the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the Court acted upon wrong principle or if the Court exercised its discretion capriciously. He cited Makhandia J (as he then was) in Simon Ndungu Murage vs. Republic Criminal Appeal No.275of 2007, Nyeri.
9. Counsel observed that Section 251 of the Penal Code provides that a person who is guilty of the offence of assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years and the Appellant was sentenced to five years imprisonment as provided by the Act.
10. Counsel submitted that trial Court considered the nature of the offence, the principles of sentencing and the amount of sentence imposed. Counsel urged that the sentence was legal and appropriate to the offence. Counsel further submitted that the Court noted that the Complainant and the Appellant are father and son and that the Appellant had on several occasions, assaulted the Complainant over a land dispute. Counsel maintained that there are aggravating factors that came out in trial. From the record of Appeal and the grounds of Appeal there is absolutely no reason to interfere with the sentence imposed by the learned Magistrate
Determination
11. Section 251 of the Penal Code provides as follows: -
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
12. Sentencing is the discretion of the Trial Court. However, the discretion must be exercised judiciously and not capriciously. The Court must be guided by the evidence and sound legal principles. It must take into account all relevant factors and eschew all extraneous or irrelevant factors. The Court of appeal in Shadrack Kipchoge Kogo vs Republic, Eldoret Criminal Appeal No 253 of 2003 (quoted in Arthur Muya Muriuki vs ~Republic (2015) eKLR), observed as follows: -
“Sentencing is essentially an exercise of the trial Court and for the Court to interfere, it must be shown that in passing sentence, the Court took into account an irrelevant factor or that a wrong principle was applied or short of these the sentence was so harsh and excessive that an error in principle must be inferred.”
13. Section 251 of the Penal Code provides that a person who is guilty of the offence of assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.
14. The court notes that in sentencing the Appellant, the Trial Court considered the Appellant’s mitigation and gave the reason for the sentence that it meted out. The Learned Trial Magistrate took into consideration the fact that the Appellant has a previous conviction even as he committed the offence with which he had been charged ad and that this being the case, he seemed not to learn from his past mistakes. Further, in view of the fact that the complainant was the Appellant’s father, the Learned Magistrate was of the opinion that the Appellant needed to be kept away from his aging father to enable the old man enjoy his sunset years in peace.
15. I have considered the accused reasons for seeking a review of sentence as well as his mitigation as herein summarised and particularly that he has since made peace with and reconciled with his father. However, in addressing my mind to the same as against the reasoning by the Learned Magistrate in passing sentence, I am satisfied that the reasons outlined by the Learned Magistrate and particularly the fact that the complainant is the accused father who is aged and that the Appellant is a repeat offender outweighs the Appellant’s plea of remorse. I therefore find that no good reason has been advanced sufficient to warrant the court interfering with the sentence of 5 years’ imprisonment imposed by the Trial Court. The same is accordingly upheld and the Appellant’s Application dismissed for want of merit. Right of Appeal 14 days.
Read Dated and Signed at ELDORET on 9th July 2025.