REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. E062 OF 2023
REPUBLIC APPELLANT/RESPONDENT
VERSUS
TERESIAH ADHIAMBO DUNYA ..RESPONDENT/APPLICANT
RULING
BACKGROUND
1. The applicant herein, Teresiah Adhiambo Dunya, was originally arraigned before the Chief Magistrate's Court at Kisumu in Criminal Case No. E791 of 2022, facing charges of assault contrary to Section 251 of The Penal Code. Following a full trial, the learned trial magistrate entered a judgment of acquittal in favor of the applicant.
2. The particulars of the offence were that on 2nd October, 2022 at around 0530hrs at Tom Mboya Estate in Kisumu the respondent assaulted Samuel Omabere by slapping his head, cheeks and right hand thus occasioning him actual bodily harm.
3. Dissatisfied with the acquittal, the Republic successfully preferred an appeal to this Honorable Court pursuant to Article 165(3)(a) of The Constitution of Kenya 2010 read together with Section 361 of the Criminal Procedure Code, vide Criminal Appeal No.
HCCRA/E062/2023. On 31st October 2024, this Court, found the applicant guilty of assault causing actual bodily harm contrary to Section 251 of The Penal Code and
imposed a custodial sentence of three (3) years imprisonment.
4. The Applicant now seeks review of sentence under Section 348 of The Criminal Procedure Code, citing compelling mitigating circumstances that warrant judicial intervention.
5. The Applicant advances the following grounds for review of sentence:
I. The Applicant was not represented during the appeal at the high court, hence not given a fair hearing that requires intervention of the court;
II. The Applicant is of ill health and suffers from a chronic medical condition
requiring constant medical attention, making custodial sentence inappropriate and potentially life-threatening;
III. The Applicant has no prior criminal record, demonstrating this was an isolated incident rather than a pattern of unlawful conduct;
IV. The Applicant is the sole caregiver to a child of tender years who will be highly prejudiced and deprived of parental care and protection should she be arrested and detained;
V. The Applicant has demonstrated genuine remorse and is committed to rehabilitation;
VI. The applicant contends there is an error apparent on the face of the judgement delivered on 31st October 2024, specifically in paragraph 16, which
acknowledged her status as a mother with a 3-year-old child and referenced The Sentencing Policy Guidelines 2023. The applicant argues this should have
resulted in a non-custodial sentence rather than imprisonment.
6. This application is supported by an affidavit sworn by the applicant wherein she restates the grounds cited hereinabove and prays for appropriate relief. The application is
accompanied by medical reports (TAD-1 to TAD-7) demonstrating her health conditions.
7. The State, through Prosecution Counsel Jebichii Kibet, filed a replying affidavit dated 10th May 2025 opposing the application on the following grounds:
I. The State maintains that the Sentencing Policy Guidelines constitute a "yardstick" to assist courts but emphasizes that judicial discretion remains paramount in
considering specific circumstances;
II. Paragraph3.5.4 of the Sentencing Policy Guidelines provides that courts should consider non-custodial sentences for pregnant or lactating offenders absent
aggravating features;
III. The sentence imposed on 31st October 2024 was legal and well within statutory parameters, citing paragraph 3.5.2 of the Sentencing Policy Guidelines which acknowledges that pregnant and lactating offenders suitable for non-custodial
sentences are nonetheless frequently imprisoned for terms of three years and below;
IV. The application dated 30th April 2025 should be dismissed.
8. This application is brought under Section 348 of the Criminal Procedure Code which vests this Court with discretionary jurisdiction to review sentences where it appears that such review would serve the interests of justice, read together with Article 50(2)(n) of The Constitution of Kenya 2010 which guarantees every accused person the right to be heard before a sentence is imposed.
ANALYSIS
9. This is an application for review of sentence under Section 348 of the Criminal
Procedure Code rather than an appeal. The applicant seeks substitution of the custodial sentence with a composite non-custodial sentence comprising compensation and
alternative sanctions designed to achieve the objectives of criminal justice while accommodating her particular circumstances.
10. The record of proceedings dated 31st October 2024 confirms that upon finding the
applicant guilty, this Court proceeded directly to sentencing without affording her the opportunity to present mitigating factors. This procedural oversight constitutes a material irregularity that undermines the fairness of the sentencing process.
11. In Furaha v Republic (Criminal Appeal 45 of 2020) [2025] KECA 286, the Court of Appeal emphasized that mitigation forms an integral component of the trial process, enabling the court to obtain crucial information about the accused's personal
circumstances that may influence the appropriate sentence to impose.
12. The medical reports (TAD-1 to TAD-7) establish that the applicant suffers from chronic medical conditions requiring specialized care and constant medical supervision. These conditions present compelling mitigating factors warranting judicial consideration.
13. In Republic v Muchanga (Criminal Case 1 of 2020) [2025] KEHC 4949 the High Court at Nakuru recognized that serious health conditions constitute compelling
mitigating factors in sentencing:
" Having considered the circumstances of the accused, including her mental health challenges and socio-economic hardships, the Court finds these to be compelling
mitigating factors. In balancing the interests of justice and humanity, it is imperative to
recognize that a custodial sentence may exacerbate the accused's condition, thereby justifying a more lenient approach in the sentencing."
14. The criminal record confirms that the applicant has no prior criminal convictions. This first-offender status engages specific sentencing considerations outlined in the Sentencing Policy Guidelines.
15. Principle 2.3.15 (ii) of The Sentencing Policy Guidelines specifically provides that first-time offender status is a significant mitigating factor warranting consideration of non-custodial alternatives. The Guidelines state: " Taking into account the seriousness of
the offence, first offenders should be considered for non-custodial sentences except where the seriousness of the offence crosses the custody threshold as set out in paragraph 2.3.13 above. When dealing with repeat offenders, consideration should be given to the nature
of the previous behaviour and the time that has elapsed between the previous conviction and the current offence. For adult offenders with previous convictions that relate to
offences committed when the offender was a child, these should be disregarded unless the circumstances of the case demand that they be taken into account owing to the similarity or frequency of the behaviour, or the seriousness of the previous offence(s). In any event, previous convictions should not be taken into consideration unless they are either
admitted or proved."
16. The applicant's role as sole caregiver to a child of tender years engages child welfare considerations beyond the immediate case. Article 53(2) declares that “A child's best interests are of paramount importance in every matter concerning the child."
17. While assault causing actual bodily harm under Section 251 of the Penal Code
constitutes a serious offense carrying a maximum penalty of five years imprisonment, the specific factual matrix reveals:
I. Relatively minor physical injuries comprising superficial scalp lacerations and temporary skull tenderness;
II. Spontaneous domestic altercation rather than premeditated criminal conduct;
III. Absence of weapons, significant premeditation, or substantial aggravating circumstances;
IV. Demonstrated remorse and positive rehabilitation prospects.
18. The Interests of justice require balancing multiple competing considerations:
I. Victim compensation through restorative justice;
II. Deterrence;
III. Rehabilitation;
IV. Child Welfare;
V. Public Interest.
19. The court acknowledges the Republic's position that the original sentence was within legal parameters and that custodial sentences serve important deterrent functions. The
appellant correctly points out that paragraph 3.5.2 of the Sentencing Policy Guidelines contemplates custodial sentences for various categories of offenders,
including those with dependents. The court must balance these competing considerations while ensuring that justice is served.
20. In Republic v Sarah Wanjiru (Criminal Case No. 234 of 2020) [2021] KEHC 2956, the High Court observed that compensation orders in assault cases serve dual purposes: they
provide direct redress to victims while ensuring offender accountability. Where an
offender demonstrates genuine remorse and capacity to compensate adequately, courts
should consider compensation as a meaningful alternative to lengthy custodial sentences.
21. Having considered the fact that the applicant was not available to offer her mitigation at the time of sentencing, the nature and gravity of the offence, the Republic's legitimate concerns about maintaining deterrent effect, and applicable principles of proportionality, individualization, and rehabilitation as outlined in the Sentencing Policy Guidelines, this court finds that exceptional circumstances exist which justify intervention under Section 348 of the Criminal Procedure Code.
22. Paragraph 4.4 of the Sentencing Policy Guidelines explicitly recognizes that
restorative justice seeks "to address the needs arising from the criminal conduct such as loss and damages" and acknowledges that "criminal conduct ordinarily occasions victims', communities', and offenders' needs and justice demands that these are met." The Guidelines further emphasize the objective "to promote a sense of
responsibility through the offender's contribution towards meeting the victim's needs."
23. Paragraph 5.6 of The Sentencing Policy Guidelines validates compensation as a
recognized penal sanction in Kenya's criminal justice system, establishing that monetary redress constitutes legitimate punishment serving both deterrent and accountability
functions.
24. The denial of the right to mitigation constitutes sufficient grounds to set aside the original sentence. However, the cumulative effect of the compelling mitigating circumstances
Presented; particularly the applicant's medical condition, first-offender status, and
caregiving responsibilities, creates an overwhelming case for substituting the custodial sentence with an alternative sentence that achieves criminal justice objectives while
addressing the victim's need for redress.
25. In the specific circumstances of this case, a compensation-focused non-custodial sentence better serves the interests of justice while ensuring accountability and appropriate
restoration to the victim.
26. This court will now proceed to assess the quantum of compensatory damages payable to the complainant and will take into consideration the following factors:
I. Nature and extent of the injuries:
The victim sustained superficial scalp lacerations and temporary skull tenderness - injuries that, while painful, were not permanently debilitating, life-threatening, or requiring extensive medical intervention. In Gichuki v Obuche (2024) the court Established KES 150,000-200,000 as a range for soft tissue injuries, positioning KES 100,000 appropriately for lesser assault injuries.
II. Pain and suffering
The physical assault caused immediate pain and psychological distress,
warranting reasonable compensation for both physical and emotional trauma experienced. In Kiplagat v Kwambai (2025) Courts commentated that it must consider the nature and extent of the injuries sustained in assessing general damages for pain and suffering.
III. Medical expenses incurred after committal of the offence
The Victim protection act Section 23(2)(e) validates that victim have statutory right to compensation for “costs of any medical or psychological treatment”.
IV. Deterrent effect:
Article 159 of Constitution emphasizes on the promotion of alternative dispute resolution and restorative justice approaches. Additionally, Section 31 of the Penal Code expressly permits compensation “in addition to or in substitution
for any other punishment”. Thus, the compensation amount is sufficient to deter similar conduct while remaining proportionate to the offense gravity and the
accused's financial circumstances.
27. Given that this court is not exercising an original jurisdiction in a tortious negligence claim but rather an appellant jurisdiction, proof of medical expenses incurred by the complainant minor will not be required. Premised upon the authorities cited hereinabove and regard being had to the nature of injuries sustained by the minor complainant in the original case, I do assess the compensatory damages at Ksh 100,000.
28. Upon consideration of this application, the rival submissions of parties’ counsel, precedents, the sentencing policy Guidelines 2023 and the law, I am incline to allow this application, which I so do and I thus make the following orders:-
i) The custodial sentence of 3 years meted upon the applicant on 31st October 2024 is hereby set aside and is substituted with an order for payment of compensation of Ksh 100,000, by the applicant Teresia Adhiambo Dunya to the minor complainant Samuel Omabare.
ii) The said sum of Ksh 100,000 to be deposited in court forthwith whereupon the applicant shall be set free unless otherwise lawfully held.
iii) The said sum of Ksh 100,000 be invested in an interest earning account with a reputable bank in the joint names of the Deputy Registrar of this court and the complainant’s mother, one Winnie Ogolla until the minor Samuel Omabare attains the majority age of 18 years.
29. This file is hereby marked as closed.
IT IS HEREBY SO ORDERED
DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 5TH DAY OF AUGUST 2025.
M.S. SHARIFF JUDGE
In the presence of:
Applicant/ Respondent virtually @ Kisumu Women Prison
N/A by Okoth Oluoch for the Applicant
N/A by Ms Muema for the appellant
Peter Machoni- Court Assistant Bungoma
David Ngonge – Court Assistant Kisumu
IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. E062 OF 2023
REPUBLIC APPELLANT/RESPONDENT
VERSUS
TERESIAH ADHIAMBO DUNYA ..RESPONDENT/APPLICANT
RULING
BACKGROUND
1. The applicant herein, Teresiah Adhiambo Dunya, was originally arraigned before the Chief Magistrate's Court at Kisumu in Criminal Case No. E791 of 2022, facing charges of assault contrary to Section 251 of The Penal Code. Following a full trial, the learned trial magistrate entered a judgment of acquittal in favor of the applicant.
2. The particulars of the offence were that on 2nd October, 2022 at around 0530hrs at Tom Mboya Estate in Kisumu the respondent assaulted Samuel Omabere by slapping his head, cheeks and right hand thus occasioning him actual bodily harm.
3. Dissatisfied with the acquittal, the Republic successfully preferred an appeal to this Honorable Court pursuant to Article 165(3)(a) of The Constitution of Kenya 2010 read together with Section 361 of the Criminal Procedure Code, vide Criminal Appeal No.
HCCRA/E062/2023. On 31st October 2024, this Court, found the applicant guilty of assault causing actual bodily harm contrary to Section 251 of The Penal Code and
imposed a custodial sentence of three (3) years imprisonment.
4. The Applicant now seeks review of sentence under Section 348 of The Criminal Procedure Code, citing compelling mitigating circumstances that warrant judicial intervention.
5. The Applicant advances the following grounds for review of sentence:
I. The Applicant was not represented during the appeal at the high court, hence not given a fair hearing that requires intervention of the court;
II. The Applicant is of ill health and suffers from a chronic medical condition
requiring constant medical attention, making custodial sentence inappropriate and potentially life-threatening;
III. The Applicant has no prior criminal record, demonstrating this was an isolated incident rather than a pattern of unlawful conduct;
IV. The Applicant is the sole caregiver to a child of tender years who will be highly prejudiced and deprived of parental care and protection should she be arrested and detained;
V. The Applicant has demonstrated genuine remorse and is committed to rehabilitation;
VI. The applicant contends there is an error apparent on the face of the judgement delivered on 31st October 2024, specifically in paragraph 16, which
acknowledged her status as a mother with a 3-year-old child and referenced The Sentencing Policy Guidelines 2023. The applicant argues this should have
resulted in a non-custodial sentence rather than imprisonment.
6. This application is supported by an affidavit sworn by the applicant wherein she restates the grounds cited hereinabove and prays for appropriate relief. The application is
accompanied by medical reports (TAD-1 to TAD-7) demonstrating her health conditions.
7. The State, through Prosecution Counsel Jebichii Kibet, filed a replying affidavit dated 10th May 2025 opposing the application on the following grounds:
I. The State maintains that the Sentencing Policy Guidelines constitute a "yardstick" to assist courts but emphasizes that judicial discretion remains paramount in
considering specific circumstances;
II. Paragraph3.5.4 of the Sentencing Policy Guidelines provides that courts should consider non-custodial sentences for pregnant or lactating offenders absent
aggravating features;
III. The sentence imposed on 31st October 2024 was legal and well within statutory parameters, citing paragraph 3.5.2 of the Sentencing Policy Guidelines which acknowledges that pregnant and lactating offenders suitable for non-custodial
sentences are nonetheless frequently imprisoned for terms of three years and below;
IV. The application dated 30th April 2025 should be dismissed.
8. This application is brought under Section 348 of the Criminal Procedure Code which vests this Court with discretionary jurisdiction to review sentences where it appears that such review would serve the interests of justice, read together with Article 50(2)(n) of The Constitution of Kenya 2010 which guarantees every accused person the right to be heard before a sentence is imposed.
ANALYSIS
9. This is an application for review of sentence under Section 348 of the Criminal
Procedure Code rather than an appeal. The applicant seeks substitution of the custodial sentence with a composite non-custodial sentence comprising compensation and
alternative sanctions designed to achieve the objectives of criminal justice while accommodating her particular circumstances.
10. The record of proceedings dated 31st October 2024 confirms that upon finding the
applicant guilty, this Court proceeded directly to sentencing without affording her the opportunity to present mitigating factors. This procedural oversight constitutes a material irregularity that undermines the fairness of the sentencing process.
11. In Furaha v Republic (Criminal Appeal 45 of 2020) [2025] KECA 286, the Court of Appeal emphasized that mitigation forms an integral component of the trial process, enabling the court to obtain crucial information about the accused's personal
circumstances that may influence the appropriate sentence to impose.
12. The medical reports (TAD-1 to TAD-7) establish that the applicant suffers from chronic medical conditions requiring specialized care and constant medical supervision. These conditions present compelling mitigating factors warranting judicial consideration.
13. In Republic v Muchanga (Criminal Case 1 of 2020) [2025] KEHC 4949 the High Court at Nakuru recognized that serious health conditions constitute compelling
mitigating factors in sentencing:
" Having considered the circumstances of the accused, including her mental health challenges and socio-economic hardships, the Court finds these to be compelling
mitigating factors. In balancing the interests of justice and humanity, it is imperative to
recognize that a custodial sentence may exacerbate the accused's condition, thereby justifying a more lenient approach in the sentencing."
14. The criminal record confirms that the applicant has no prior criminal convictions. This first-offender status engages specific sentencing considerations outlined in the Sentencing Policy Guidelines.
15. Principle 2.3.15 (ii) of The Sentencing Policy Guidelines specifically provides that first-time offender status is a significant mitigating factor warranting consideration of non-custodial alternatives. The Guidelines state: " Taking into account the seriousness of
the offence, first offenders should be considered for non-custodial sentences except where the seriousness of the offence crosses the custody threshold as set out in paragraph 2.3.13 above. When dealing with repeat offenders, consideration should be given to the nature
of the previous behaviour and the time that has elapsed between the previous conviction and the current offence. For adult offenders with previous convictions that relate to
offences committed when the offender was a child, these should be disregarded unless the circumstances of the case demand that they be taken into account owing to the similarity or frequency of the behaviour, or the seriousness of the previous offence(s). In any event, previous convictions should not be taken into consideration unless they are either
admitted or proved."
16. The applicant's role as sole caregiver to a child of tender years engages child welfare considerations beyond the immediate case. Article 53(2) declares that “A child's best interests are of paramount importance in every matter concerning the child."
17. While assault causing actual bodily harm under Section 251 of the Penal Code
constitutes a serious offense carrying a maximum penalty of five years imprisonment, the specific factual matrix reveals:
I. Relatively minor physical injuries comprising superficial scalp lacerations and temporary skull tenderness;
II. Spontaneous domestic altercation rather than premeditated criminal conduct;
III. Absence of weapons, significant premeditation, or substantial aggravating circumstances;
IV. Demonstrated remorse and positive rehabilitation prospects.
18. The Interests of justice require balancing multiple competing considerations:
I. Victim compensation through restorative justice;
II. Deterrence;
III. Rehabilitation;
IV. Child Welfare;
V. Public Interest.
19. The court acknowledges the Republic's position that the original sentence was within legal parameters and that custodial sentences serve important deterrent functions. The
appellant correctly points out that paragraph 3.5.2 of the Sentencing Policy Guidelines contemplates custodial sentences for various categories of offenders,
including those with dependents. The court must balance these competing considerations while ensuring that justice is served.
20. In Republic v Sarah Wanjiru (Criminal Case No. 234 of 2020) [2021] KEHC 2956, the High Court observed that compensation orders in assault cases serve dual purposes: they
provide direct redress to victims while ensuring offender accountability. Where an
offender demonstrates genuine remorse and capacity to compensate adequately, courts
should consider compensation as a meaningful alternative to lengthy custodial sentences.
21. Having considered the fact that the applicant was not available to offer her mitigation at the time of sentencing, the nature and gravity of the offence, the Republic's legitimate concerns about maintaining deterrent effect, and applicable principles of proportionality, individualization, and rehabilitation as outlined in the Sentencing Policy Guidelines, this court finds that exceptional circumstances exist which justify intervention under Section 348 of the Criminal Procedure Code.
22. Paragraph 4.4 of the Sentencing Policy Guidelines explicitly recognizes that
restorative justice seeks "to address the needs arising from the criminal conduct such as loss and damages" and acknowledges that "criminal conduct ordinarily occasions victims', communities', and offenders' needs and justice demands that these are met." The Guidelines further emphasize the objective "to promote a sense of
responsibility through the offender's contribution towards meeting the victim's needs."
23. Paragraph 5.6 of The Sentencing Policy Guidelines validates compensation as a
recognized penal sanction in Kenya's criminal justice system, establishing that monetary redress constitutes legitimate punishment serving both deterrent and accountability
functions.
24. The denial of the right to mitigation constitutes sufficient grounds to set aside the original sentence. However, the cumulative effect of the compelling mitigating circumstances
Presented; particularly the applicant's medical condition, first-offender status, and
caregiving responsibilities, creates an overwhelming case for substituting the custodial sentence with an alternative sentence that achieves criminal justice objectives while
addressing the victim's need for redress.
25. In the specific circumstances of this case, a compensation-focused non-custodial sentence better serves the interests of justice while ensuring accountability and appropriate
restoration to the victim.
26. This court will now proceed to assess the quantum of compensatory damages payable to the complainant and will take into consideration the following factors:
I. Nature and extent of the injuries:
The victim sustained superficial scalp lacerations and temporary skull tenderness - injuries that, while painful, were not permanently debilitating, life-threatening, or requiring extensive medical intervention. In Gichuki v Obuche (2024) the court Established KES 150,000-200,000 as a range for soft tissue injuries, positioning KES 100,000 appropriately for lesser assault injuries.
II. Pain and suffering
The physical assault caused immediate pain and psychological distress,
warranting reasonable compensation for both physical and emotional trauma experienced. In Kiplagat v Kwambai (2025) Courts commentated that it must consider the nature and extent of the injuries sustained in assessing general damages for pain and suffering.
III. Medical expenses incurred after committal of the offence
The Victim protection act Section 23(2)(e) validates that victim have statutory right to compensation for “costs of any medical or psychological treatment”.
IV. Deterrent effect:
Article 159 of Constitution emphasizes on the promotion of alternative dispute resolution and restorative justice approaches. Additionally, Section 31 of the Penal Code expressly permits compensation “in addition to or in substitution
for any other punishment”. Thus, the compensation amount is sufficient to deter similar conduct while remaining proportionate to the offense gravity and the
accused's financial circumstances.
27. Given that this court is not exercising an original jurisdiction in a tortious negligence claim but rather an appellant jurisdiction, proof of medical expenses incurred by the complainant minor will not be required. Premised upon the authorities cited hereinabove and regard being had to the nature of injuries sustained by the minor complainant in the original case, I do assess the compensatory damages at Ksh 100,000.
28. Upon consideration of this application, the rival submissions of parties’ counsel, precedents, the sentencing policy Guidelines 2023 and the law, I am incline to allow this application, which I so do and I thus make the following orders:-
i) The custodial sentence of 3 years meted upon the applicant on 31st October 2024 is hereby set aside and is substituted with an order for payment of compensation of Ksh 100,000, by the applicant Teresia Adhiambo Dunya to the minor complainant Samuel Omabare.
ii) The said sum of Ksh 100,000 to be deposited in court forthwith whereupon the applicant shall be set free unless otherwise lawfully held.
iii) The said sum of Ksh 100,000 be invested in an interest earning account with a reputable bank in the joint names of the Deputy Registrar of this court and the complainant’s mother, one Winnie Ogolla until the minor Samuel Omabare attains the majority age of 18 years.
29. This file is hereby marked as closed.
IT IS HEREBY SO ORDERED
DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 5TH DAY OF AUGUST 2025.
M.S. SHARIFF JUDGE
In the presence of:
Applicant/ Respondent virtually @ Kisumu Women Prison
N/A by Okoth Oluoch for the Applicant
N/A by Ms Muema for the appellant
Peter Machoni- Court Assistant Bungoma
David Ngonge – Court Assistant Kisumu