REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E008 OF 2025
(Coram: Andayi W. F., J.)
HAMISI KAMANZA NJUWA..……………………….APPLICANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
(Application for Review of sentence arising from the sentence of the Magistrate’s Court at Msambweni in Criminal Case No. E267 of 2024 by Hon. L. W. Kabaria (P.M). delivered on 18/12/2024)
RULING
1. This matter is placed before me for review of sentence under Article 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
2. The Lower Court file has been placed before me and I have perused the same.
3. The offender pleaded guilty and was convicted and sentenced on a charge of assault causing actual bodily harm contrary to section 251 of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on 29/11/2024 at about 1400 Hours Masanzuni village of Vanga location in Lunga Lunga Sub-County within Kwale County, he willfully and unlawfully assaulted David Muthoka thereby occasioning him actual bodily harm.
4. The brief facts of the case were that on the material day, the offender attacked the complainant for no apparent cause demanding that the complainant repeats what he had said the previous day. The complainant told the offender that he had not been with him the previous day whereupon the offender pulled a panga from his waist and aimed to cut the complainant in the abdomen. The complainant avoided the blow but the offender aimed a second blow at the complainant’s neck which the complainant parried with his arm which as a result was cut. He was injured. A friend of the complainant intervened and the offender ran away. The offender was subsequently arrested and charged.
5. Upon those facts he was sentenced to pay a fine of KShs 20,000/= in default to serve six months’ imprisonment.
6. The offence of assault causing actual bodily harm is provided for under section 251 of the Penal Code as follows:
“S. 251. Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
7. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. The offender prayed for lenience indicating that he won’t repeat the offence.
8. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence.
9. The sentence review report filed herein is now favourable and recommends that the offender be released unconditionally.
10. The manner the offence was committed with a panga, a sharp weapon, which the offender was hiding under his waist indicates that he had all along prepared to seriously assault the complainant.
11. Under those circumstances, I find that the sentence passed on the offender by the trial court was commensurate if not quite lenient to the offence committed. The offender will therefore serve the balance of the default term of imprisonment if he does not pay the fine.
12. Consequently, the review of sentence is declined and this file is closed.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 29th day of May 2025
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E008 OF 2025
(Coram: Andayi W. F., J.)
HAMISI KAMANZA NJUWA..……………………….APPLICANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
(Application for Review of sentence arising from the sentence of the Magistrate’s Court at Msambweni in Criminal Case No. E267 of 2024 by Hon. L. W. Kabaria (P.M). delivered on 18/12/2024)
RULING
1. This matter is placed before me for review of sentence under Article 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
2. The Lower Court file has been placed before me and I have perused the same.
3. The offender pleaded guilty and was convicted and sentenced on a charge of assault causing actual bodily harm contrary to section 251 of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on 29/11/2024 at about 1400 Hours Masanzuni village of Vanga location in Lunga Lunga Sub-County within Kwale County, he willfully and unlawfully assaulted David Muthoka thereby occasioning him actual bodily harm.
4. The brief facts of the case were that on the material day, the offender attacked the complainant for no apparent cause demanding that the complainant repeats what he had said the previous day. The complainant told the offender that he had not been with him the previous day whereupon the offender pulled a panga from his waist and aimed to cut the complainant in the abdomen. The complainant avoided the blow but the offender aimed a second blow at the complainant’s neck which the complainant parried with his arm which as a result was cut. He was injured. A friend of the complainant intervened and the offender ran away. The offender was subsequently arrested and charged.
5. Upon those facts he was sentenced to pay a fine of KShs 20,000/= in default to serve six months’ imprisonment.
6. The offence of assault causing actual bodily harm is provided for under section 251 of the Penal Code as follows:
“S. 251. Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
7. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. The offender prayed for lenience indicating that he won’t repeat the offence.
8. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence.
9. The sentence review report filed herein is now favourable and recommends that the offender be released unconditionally.
10. The manner the offence was committed with a panga, a sharp weapon, which the offender was hiding under his waist indicates that he had all along prepared to seriously assault the complainant.
11. Under those circumstances, I find that the sentence passed on the offender by the trial court was commensurate if not quite lenient to the offence committed. The offender will therefore serve the balance of the default term of imprisonment if he does not pay the fine.
12. Consequently, the review of sentence is declined and this file is closed.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 29th day of May 2025
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE