(Being an appeal from the original conviction and sentence of Hon. A. Ithuku, in Kerugoya Magistrates Court Criminal Case No. E057 of 2021 delivered on 19/10/2022)
SENTENCE
Background
1. The appellant herein James Githaga Nguru was convicted by the trial court of committing the offence of causing grievous harm contrary to section 234 of the Penal Code (Cap. 63) Laws of Kenya that on 2/1/2021 at Kianjogu within Kirinyaga County willfully and unlawfully did grievous harm to Nancy Wambui Murage. He was sentenced to serve 4 years imprisonment. He was aggrieved by that decision and appealed to this court against both sentence and conviction.
2. The appeal on conviction was not successful and this court sustained his conviction in a judgment delivered on 30th June 2025.
3. On the ground of appeal on sentence, this court noted that the trial court had not called for a pre-sentence report in order to inform itself of the appropriate sentence to meet upon the appellant. A pre-sentence report is desirable in order to inform the court of the personal circumstances of the offender, the victim of the offence and the community in which the offender resides and the offence was committed. It will then assist the court in passing an appropriate sentence. The report becomes even more imperative where under Article 50(2)(q) of the Constitution a higher court may have to consider the case for review of the sentence such as in the present case.
4. The Sentencing Policy Guidelines, 2023 provide in paragraph 4.1.3.5 (see paragraph 22.12 of the prior Sentencing Policy Guidelines) that:
“The court should, as a matter of course, request a pre-sentence report in appropriate cases. The court should be guided by the pre-sentence reports presented and should be satisfied that the enquiry has been adequately conducted for the purposes of sentencing. While appreciating that pre-sentence reports are not binding, the court should give reasons for departing from the recommendations therein.”
5. Therefore, this court, noting that the appellant had completed about six months of his four-year sentence in prison custody before he was released on bond after the court found that the bail report was favourable, called for a sentence review report from the Probation and Aftercare Department in order for the court to inform itself whether or not the appellant is suitable for sentence review in view of his assertion that the trial court had not considered his mitigation before passing the sentence.
6. The sentence review report filed in this court by Pauline M. Lechipan, Probation Officer on 9/7/2025 following this court’s request for the same indicates that the appellant is suitable for a non-custodial sentence and recommends that he be committed to probation.
7. The appellant is aged 55 years, He has been in custody for about 6 months of the four-year prison term imposed upon him. He has no previous record of offending. He pleads for lenience and for a non-custodial sentence. He has tried to reach out to the victim for dialogue over long standing conflict over land boundary between their families to no avail. He states that he is still determined to pursue the same as they are members of the same family and peace is paramount for the sake of harmonious co-existence.
8. The report further indicates that the appellant is a person who has maintained good morals since his childhood. He is described as one who lives in harmony with the community members and the area assistant chief indicated that he was always involved in community activities and has served in the position of chairman. The community therefore does not object to him being given a non-custodial sentence.
9. The victim did not wish to express anything about the sentence and left it to the court’s discretion. She indicated that she does not wish to have a sitting with the appellant for purposes of reconciliation.
10. Section 354(3)(a) and (b) of the CPC grants the High Court power to reduce, increase or alter the nature of a sentence as follows:
354(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may—
(a) in an appeal from a conviction—
(i) reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or
(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or
(iii) with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;
(b) in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;
11. In this case, although the offence is serious and carries a severe penalty, it is noted that the appellant inflicted a single blow upon the complainant and there were no other aggravating circumstances in the commission of the offence. I find that this is a case deserving of a sentence review to a non-custodial sentence pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
12. I believe that for the period spent in custody, the appellant has learned that breaking the law can attract dire consequences. I find that the period served is sufficient for that purpose.
13. Consequently, the appellant’s remainder term of imprisonment is reviewed to a non-custodial sentence and place him on probation for a period of two years as recommended. He is accordingly required to report to the Kerugoya Probation and Aftercare department offices to start his probation period forthwith.
14. Orders accordingly.
Dated, signed and delivered on the Virtual platform Teams this 11th day of August 2025 in the presence of:
The appellant in person in physical courtroom.
Ms. Kiragu for the appellant.
Ms. Komu for the respondent.
Job: Court assistant.
SENTENCE
Background
1. The appellant herein James Githaga Nguru was convicted by the trial court of committing the offence of causing grievous harm contrary to section 234 of the Penal Code (Cap. 63) Laws of Kenya that on 2/1/2021 at Kianjogu within Kirinyaga County willfully and unlawfully did grievous harm to Nancy Wambui Murage. He was sentenced to serve 4 years imprisonment. He was aggrieved by that decision and appealed to this court against both sentence and conviction.
2. The appeal on conviction was not successful and this court sustained his conviction in a judgment delivered on 30th June 2025.
3. On the ground of appeal on sentence, this court noted that the trial court had not called for a pre-sentence report in order to inform itself of the appropriate sentence to meet upon the appellant. A pre-sentence report is desirable in order to inform the court of the personal circumstances of the offender, the victim of the offence and the community in which the offender resides and the offence was committed. It will then assist the court in passing an appropriate sentence. The report becomes even more imperative where under Article 50(2)(q) of the Constitution a higher court may have to consider the case for review of the sentence such as in the present case.
4. The Sentencing Policy Guidelines, 2023 provide in paragraph 4.1.3.5 (see paragraph 22.12 of the prior Sentencing Policy Guidelines) that:
“The court should, as a matter of course, request a pre-sentence report in appropriate cases. The court should be guided by the pre-sentence reports presented and should be satisfied that the enquiry has been adequately conducted for the purposes of sentencing. While appreciating that pre-sentence reports are not binding, the court should give reasons for departing from the recommendations therein.”
5. Therefore, this court, noting that the appellant had completed about six months of his four-year sentence in prison custody before he was released on bond after the court found that the bail report was favourable, called for a sentence review report from the Probation and Aftercare Department in order for the court to inform itself whether or not the appellant is suitable for sentence review in view of his assertion that the trial court had not considered his mitigation before passing the sentence.
6. The sentence review report filed in this court by Pauline M. Lechipan, Probation Officer on 9/7/2025 following this court’s request for the same indicates that the appellant is suitable for a non-custodial sentence and recommends that he be committed to probation.
7. The appellant is aged 55 years, He has been in custody for about 6 months of the four-year prison term imposed upon him. He has no previous record of offending. He pleads for lenience and for a non-custodial sentence. He has tried to reach out to the victim for dialogue over long standing conflict over land boundary between their families to no avail. He states that he is still determined to pursue the same as they are members of the same family and peace is paramount for the sake of harmonious co-existence.
8. The report further indicates that the appellant is a person who has maintained good morals since his childhood. He is described as one who lives in harmony with the community members and the area assistant chief indicated that he was always involved in community activities and has served in the position of chairman. The community therefore does not object to him being given a non-custodial sentence.
9. The victim did not wish to express anything about the sentence and left it to the court’s discretion. She indicated that she does not wish to have a sitting with the appellant for purposes of reconciliation.
10. Section 354(3)(a) and (b) of the CPC grants the High Court power to reduce, increase or alter the nature of a sentence as follows:
354(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may—
(a) in an appeal from a conviction—
(i) reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or
(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or
(iii) with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;
(b) in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;
11. In this case, although the offence is serious and carries a severe penalty, it is noted that the appellant inflicted a single blow upon the complainant and there were no other aggravating circumstances in the commission of the offence. I find that this is a case deserving of a sentence review to a non-custodial sentence pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
12. I believe that for the period spent in custody, the appellant has learned that breaking the law can attract dire consequences. I find that the period served is sufficient for that purpose.
13. Consequently, the appellant’s remainder term of imprisonment is reviewed to a non-custodial sentence and place him on probation for a period of two years as recommended. He is accordingly required to report to the Kerugoya Probation and Aftercare department offices to start his probation period forthwith.
14. Orders accordingly.
Dated, signed and delivered on the Virtual platform Teams this 11th day of August 2025 in the presence of:
The appellant in person in physical courtroom.
Ms. Kiragu for the appellant.
Ms. Komu for the respondent.
Job: Court assistant.