(Arising from Mombasa Chief Magistrate Criminal Case Number E1380/2024 REPUBLIC Vs LA CHAKA CHIBANDA by Hon Alex lthuku CM THE MATTER APPLICATION FOR SENTENCE REVIEW
1.The Applicant herein is charged with the offence of causing grievous harm contrary to section 234 of the penal code. The facts of the case were that on the 2nd day of August 2024 at about 0800hrs in Ferry Highland along Oceanic road Mombasa county unlawfully did grievous harm to JUMA NDALU CHIBANDA.
2. The facts were read over to the Applicant and he pleaded guilty and after mitigation the Honourable court sentenced him to a two (2) term jail.
3.The Applicant then swiftly moved to this court pointing out that complainant herein and the Applicant are related and they have a long-term family dispute which resulted the altercation between them resulting to the above charges. That the complainant took advantage of the situation and rushed to report.
4.His prayer to the Court was to revise the sentence to a non custodial one. He argued that even though the doctor who filed the P3 assessed the degree of injuries as grievous, The treatment notes produced only show tenderness of some body parts. That, the Honourable court sentenced him to serve 2 years imprisonment without an option of a fine and the sentence was so heavy compared to the fact that this is a family dispute. He also submitted that The Learned Magistrate did not consider the Applicant’s mitigation. He submitted that The Learned Magistrate erred in Law by failing to consider giving the option of fine.
5. This court called for the lower court file/proceedings to satisfy itself on the legality , propriety and regularity of the proceedings and make a formed decision. The court also directed that a sentence review report be prepared and filed,
6.The said report shows that The Applicant is 45 years and a son to the late Chaka Kibanda and late Chari Kombo. Both parents passed on while the inmate was still growing and has acquired parental guidance from the parents and has exhibited restraint over the years with no criminal record.
7.The inmate\'s extended family members including his wife and children presently live in Majengo Location,Kasemeni village within kwale County where they are engaged in various income generating activities more notably small scale farming. The village is entirely habited by same tribesmen with the local leadership closely related to the inmate as the family is well known and are all willing to help in any sort of supervision if released from custody.
8.That the inmate hails from an extended family which has demonstrated willingness to support in his rehabilitation process in case he benefits from current sentencing guidelines. The community members and the family admits and confirms that despite his imprisonment and his elderly age,the inmate has remained in close communication with the family in the village and that they are more eager to accommodate him back once his sentence comes to an end. Additionally, having no any formal education poses a great challenge in rehabilitation within the prison facilities due to language barrier and old age illnesses.
9.The family has reported that he poses no security threat and that he may not face any security risks as they may put in place empowerment plans as he seeks to stabilize his life and establish his generation as all his 8 children are schooling and the younger wife is expecting their last born child any time soon. He adds that his two wives Mose Mangale and Gladys Chama are housewives and none has any source of income.
10.A non-custodial sentence or unconditional release, in their considered opinion will serve a best way for his further rehabilitation as they think that he has suffered enough while in custody and has fully changed. The family offers to establish a conducive environment and reconcile the parties as they are related and are first cousins who lives well before the offence.
remote area on Kinango in Kwale Sub County. Its however the opinion of the elders of the family that they will undertake to reconcile the two for effective rehabilitation and peaceful co-existence.
12.The report also shows that the Applicant has engaged in prison as an inside cleaner. Its reported that the authorities noted that the condition of the family with the inmate\'s imprisonment has immensely affected the elderly inmate both psychologically and emotionally necessitating him to apply for review of his sentence to seek better medical attention and counseling while out of custody.
13. The Prison authorities stated that the Applicant has been responsible and enlightened on how to live within the confines of the laws of the land. He and has learnt to be law abiding, and live responsibly with due respect in the adopted interpersonal skills.
14.It is the prison authorities\' opinion that the applicant inmate to be considered for release as he can attain most of rehabilitation goals while out of custody..
15.He has no records of prison misconduct established and commits to respect the law and behave responsibly when released from prison.
16. The final recommendation was that the Applicant is suitable for a non-custodial sentence. That In consideration of the advanced age and rehabilitation plans for reconciliation and anger management counseling it was recommend that the Applicant be committed to probation sentence
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17. This application is restricted to the sentence imposed. According to the Applicant, there were no aggravating factors to compel the trial court to impose on him the said sentence. It was further submitted that the trial court did not consider the fact that he was a first offender and did not consider the applicant’s mitigation. It was his position that in light of the foregoing, the sentence imposed upon him was excessive in light of the minimum sentence prescribed by the law. It was submitted that the appellant’s remorse for the offence can be deduced from the fact that he pleaded guilty to the offence hence sparing the trial court the precious time.
18. The court is minded that sentencing being the discretion of the trial court, such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. During sentencing the court must take into account all relevant factors eschew all extraneous or irrelevant factors. The revision court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or it is so harsh and excessive to amount to miscarriage of justice, and or that the court acted upon wrong principles or if the court exercised its discretion capriciously.
19. Thus, while exercising its discretion in sentencing, the court should bear in mind the principles off proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factor should also be considered.
22. In this application , the appellant is only aggrieved with the sentence. It is therefore important to set out the circumstances under which a revision court interferes with sentence. The principles guiding interference with sentencing by the revision Court or Appellate court were properly, in my view, set out in S vs. Malgas 2001 (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 be to 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 so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”
22. Similarly, in Mokela vs. The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:
“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”
23. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:-
\"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
24. To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”. (R - v- Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-
“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
versus Republic (1941) 8 EACA 64 had this to say on the proper construction of the words “liable to”:
“The wording used throughout the code is “shall be liable to” but a consideration of the various sections shows in our judgment, that the use of the words “shall be liable to” does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated.”
25 The predecessor of the court went further in Opoya versus Uganda [1967] EA 752 at page 754 where Sir Clement DeLestang V.P. picked up the conversation inter alia thus:
“It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.”
26. In this case the record indicates that the appellant was considered to be a first offender and he also stated .
‘…We are not saying that a court has no power to impose a sentence of life: a court can do so depending on the circumstances of a particular case which circumstances must include the circumstances under which the offence itself was committed, the circumstances of the accused person such as whether he is a first offender, how long he has been in prison awaiting trial and things of that nature.’
In the present case, the learned Judge wrote very elaborate notes on the sentence he imposed on the appellant. He took into account the fact that the attack on the deceased was brutal and vicious: that was correct and the learned Judge was right in doing so. He also took into account the fact that the vicious and brutal attack was on a wife in the presence of their very young daughter. Once again, that was correct and the Judge was entitled to take it into account. The attack, said the Judge. Was an act of domestic violence and the courts must do their part to discourage it. That was also correct and the Judge was perfectly entitled to consider it. These were matters on one side of the scale aggravating the crime committed by the appellant. But a court is also under a duty to take into account the matters in favour of an accused person. In this case, the appellant was, admittedly, a first offender. The learned Judge does not mention this factor at all in his elaborate notes on sentence. This was, however, a factor which the learned Judge was bound to take into account in favour of the appellant. Again, the appellant was arrested on 27th/28th December, 1998 and by the time the Judge sentenced him on 29th June, 2000, he had been in prison for nearly one and half years. The learned Judge did not mention this factor in his notes on the sentence. We think he was bound by the law to consider the two factors which were in favour of the appellant and weigh them against those which supported a severe penalty. Sentence is essentially a discretionary matter for the trial court but in exercising that discretion, the trial court must take into account all the relevant factors and leave out all irrelevant ones. An appeal court, which ours is, is only entitled to interfere with the exercise of discretion where it is shown that the court whose exercise of discretion is impugned, has either not taken into account a relevant factor, or taken into account an irrelevant factor or that short of these the exercise of the discretion is plainly wrong. Etyang, J appear not to have taken into account the fact that the appellant was a first offender and that he had been in custody for over one year before he was sentenced. The learned Judge’s failure to take these factors into account gives us the right to interfere with the sentence he imposed on the appellant. We accordingly set aside the sentence of life imprisonment imposed on a man of some thirty-eight years and substitute it with a sentence of fifteen (15) years imprisonment to run from the date when the appellant was first sentenced by the superior court.”
26. In this case the learned trial magistrate’s view, in imposing the sentence, was influenced by the fact that the applicant caused grievious harm and was not provoked . . The Court did not mention anything about the fact that the appellant had pleaded guilty from the very first instance and was a first offender. The Applicant also complained that the medical report also does not show any fracture or how the p3 ‘s maker assessed the injury as grievious harm. I have looked at the initial medical noted and they only talk of tenderness and the same applies to the p3 form. The particulars of the injuries were not read out to the Applicant but that is not in issue now as he has not challenged the conviction. The injury is however relevant to the sentence.
I note that the Applicant pleaded guilty to the offence and this conduct discloses remorse on the part his part.
27 Accordingly, I find that the sentence imposed was on the higher side. I therefore allow the application and substitute the sentence of 2 years imprisonment with that of a probation sentence for 18 months.
28. It is so ordered.
RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MOMBAS THIS 27TH DAY OF AUGUST,2024
WENDY KAGENDO
JUDGE
In the presence of:
The Applicant in person
Ms Maina for the Respondent
Bebora court assistant