' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL APPEAL NO. E037 OF 2025
DOKATA ABDUBA……….………………..………….….APPELLANT
VERSUS
REPUBLIC…………………………………………………RESPONDENT
(BEING AN APPEAL ARISING FROM THE CONVICTION AND SENTENCE OF HON C. WEKESA (SENIOR PRICIPAL MAGISTRATE), DELEIVERED IN MARSABIT PRINCIPAL MAGISTRATE COURT CRIMINAL CASE NO E 016 OF 2024, DELIVERED ON 28 th MAY 2025)
ARISING FROM
REPUBLIC ………………………………………….……PROSECUTOR
VERSUS
DOKATA ABDUBA…………………………………..…………ACCUSED
JUDGMENT
Introduction
The Appellant herein, DOKATA ABDUBA, was on 10 th February 2025, charged with the offence of Assault causing actual bodily harm contrary to section 201 of the penal code. The particulars were that on the 5 th day of February 2025, at Shauri yako estate in Saku within Marsabit county unlawfully assaulted Fatuma Marsa Sarbo thereby occasioning her actual bodily harm.
The appellant took plea and denied the charge. The prosecution called four witnesses to prove their case and after defence hearing and mitigation the appellant was sentenced to serve a term of three (3) years imprisonment. The appellant filed his petition of Appeal and raised three main grounds of appeal, namely;
THAT the learned trial Magistrate erred in matters of law and fact by failing to consider his mitigation when sentencing him to serve three years imprisonment.
THAT he was never accorded a fair Trial and was unwell during the said trial.
THAT his defense and mitigation were rejected without giving cogent reasons.
The appellant opted to make oral submissions before this court and stated that he would wish to drop his Appeal against conviction but urged the court to reconsider the sentence passed as the same was harsh and excessive considering the circumstances of this case. The State opposed the same on the basis that the appellant was not a first offender and a deterrent sentence needed to be maintained for the appellant to correct his indiscretion.
B. Determination
The appellant has abandoned his Appeal against his conviction and urged the court to reconsider the sentence passed. Sentencing is determined at the discretion of the trial court after considering the facts of the case, Judiciary Sentencing Policy Guidelines and penalty provided for under the Penal Code.
The principles guiding interference with sentencing by the appellate court were properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12, where it was held that;
“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”.
Section 251 of the Penal code provides for a sentence of five (5) years imprisonment for a person convicted of the offence of assault causing actual bodily harm. After his conviction, the trial court called for the pre-sentence report, which noted that the appellant was not a first offender and had been charged before court in Marsabit Criminal Case No. 143/2018 with the offence of threatening to kill, malicious damage to property and had been placed on probation for one year, but had absconded and a warrant of arrest had been issued for him in the aforestated file, and secondly in Marsabit Criminal Case No. 154 of 2023 he had been charged with the offence of stealing and was referred to Mathari National Mental and Referral Hospital for treatment. In the said report, his family and community noted that he deserved a custodial sentence and could not be rehabilitated within the community.
The appellant assaulted the complainant by hitting her with a jembe, which incident, luckily did not end up in a more tragic manner. His actions are reprehensible and must attract a proper deterrent sentence.
The Appellant was allowed to mitigate and was sentenced to serve an imprisonment term of three (3) years. There is no error in the legality of the sentence passed nor is there any misapplication of the law/material misdirection by the trial court, to warrant an interference by this court of the sentence passed.
C. Disposition .
I do therefore find that this Appeal lacks merit and the same is dismissed.
Right of Appeal 14 days.
It is so ordered
Judgment read, signed and delivered in open Court at Marsabit this ……27 th ………. day of NOVEMBER 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this………day of NOVEMBER 2025.
In the presence of;
…………………………………… Appellant
………………………………….For O.D.P.P
………………………………….Court Assistant
'
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL APPEAL NO. E037 OF 2025
DOKATA ABDUBA……….………………..………….….APPELLANT
VERSUS
REPUBLIC…………………………………………………RESPONDENT
(BEING AN APPEAL ARISING FROM THE CONVICTION AND SENTENCE OF HON C. WEKESA (SENIOR PRICIPAL MAGISTRATE), DELEIVERED IN MARSABIT PRINCIPAL MAGISTRATE COURT CRIMINAL CASE NO E 016 OF 2024, DELIVERED ON 28 th MAY 2025)
ARISING FROM
REPUBLIC ………………………………………….……PROSECUTOR
VERSUS
DOKATA ABDUBA…………………………………..…………ACCUSED
JUDGMENT
Introduction
The Appellant herein, DOKATA ABDUBA, was on 10 th February 2025, charged with the offence of Assault causing actual bodily harm contrary to section 201 of the penal code. The particulars were that on the 5 th day of February 2025, at Shauri yako estate in Saku within Marsabit county unlawfully assaulted Fatuma Marsa Sarbo thereby occasioning her actual bodily harm.
The appellant took plea and denied the charge. The prosecution called four witnesses to prove their case and after defence hearing and mitigation the appellant was sentenced to serve a term of three (3) years imprisonment. The appellant filed his petition of Appeal and raised three main grounds of appeal, namely;
THAT the learned trial Magistrate erred in matters of law and fact by failing to consider his mitigation when sentencing him to serve three years imprisonment.
THAT he was never accorded a fair Trial and was unwell during the said trial.
THAT his defense and mitigation were rejected without giving cogent reasons.
The appellant opted to make oral submissions before this court and stated that he would wish to drop his Appeal against conviction but urged the court to reconsider the sentence passed as the same was harsh and excessive considering the circumstances of this case. The State opposed the same on the basis that the appellant was not a first offender and a deterrent sentence needed to be maintained for the appellant to correct his indiscretion.
B. Determination
The appellant has abandoned his Appeal against his conviction and urged the court to reconsider the sentence passed. Sentencing is determined at the discretion of the trial court after considering the facts of the case, Judiciary Sentencing Policy Guidelines and penalty provided for under the Penal Code.
The principles guiding interference with sentencing by the appellate court were properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12, where it was held that;
“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”.
Section 251 of the Penal code provides for a sentence of five (5) years imprisonment for a person convicted of the offence of assault causing actual bodily harm. After his conviction, the trial court called for the pre-sentence report, which noted that the appellant was not a first offender and had been charged before court in Marsabit Criminal Case No. 143/2018 with the offence of threatening to kill, malicious damage to property and had been placed on probation for one year, but had absconded and a warrant of arrest had been issued for him in the aforestated file, and secondly in Marsabit Criminal Case No. 154 of 2023 he had been charged with the offence of stealing and was referred to Mathari National Mental and Referral Hospital for treatment. In the said report, his family and community noted that he deserved a custodial sentence and could not be rehabilitated within the community.
The appellant assaulted the complainant by hitting her with a jembe, which incident, luckily did not end up in a more tragic manner. His actions are reprehensible and must attract a proper deterrent sentence.
The Appellant was allowed to mitigate and was sentenced to serve an imprisonment term of three (3) years. There is no error in the legality of the sentence passed nor is there any misapplication of the law/material misdirection by the trial court, to warrant an interference by this court of the sentence passed.
C. Disposition .
I do therefore find that this Appeal lacks merit and the same is dismissed.
Right of Appeal 14 days.
It is so ordered
Judgment read, signed and delivered in open Court at Marsabit this ……27 th ………. day of NOVEMBER 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this………day of NOVEMBER 2025.
In the presence of;
…………………………………… Appellant
………………………………….For O.D.P.P
………………………………….Court Assistant
'