1. The Applicant was charged with causing grievous harm contrary to section 234 of the Penal Code. The particulars of the charge were that on the 30th day of March 2017, at Mahoyo Village, Dzomo Location of Kwale County, he unlawfully caused grievous harm to Loice Chinyavu. The Applicant was also charged with disobeying a lawful order contrary to section 131 of the Penal Code.
2. The Applicant initially pleaded not guilty. On 8th February 2018, he changed his plea to guilty on both counts. The trial Court, upon considering the report of the Probation Officer, sentenced the Applicant to 30 years in jail. In passing the said sentence, the learned trial magistrate noted that the Applicant was not a first offender. His view was that “he should be locked up for long term to ensure he gets time to reflect and possibly to be able to reform. The community and the victim should also have some peace of mind”.
3. Dissatisfied with the sentence, the Applicant appealed to the High Court. His appeal was, however, not successful and was dismissed.
4. Vide this Miscellaneous Criminal Application, the Applicant seeks to have the sentence reviewed on the grounds that he has reformed and would not be a danger to the community and the victim.
5. The application was heard on 25th June 2024. The Applicant submitted that he was seeking forgiveness for what happened and desired to have his sentence reduced. He urged that his family was suffering and that he couldn’t help them while incarcerated. He also said that his wife, the victim of his cruel action, was unwell.
6. Ms Mwaura, learned counsel, on behalf of the Director of Public Prosecution, opposed the application. She submitted that the grounds that the Applicant relied on in his application were considered by the High Court and were found not to have merit. Thus, she prayed that the sentence meted out by the court below be retained and the application be dismissed.
7. I have very carefully considered the application. In essence, the Applicant seeks a second bite of the Cherry. He made the first attempt with the appeal, but that didn’t work. He has now come back with a second try.
8. In my view, the sentence passed by the court below, which was upheld by this court, is lawful, proportionate and just. Although under Section 234 of the Penal Code, the trial magistrate could have sentenced the Applicant to life imprisonment given the degree of harm and the vicious nature the offence was committed, she exercised her discretion and sentenced the Applicant to 30 years’ jail term. Given the nature of the injuries the victim sustained and the fact that she was maimed for life and could no longer support herself, the sentence, in my view, was lenient.
9. The Applicant, during the hearing, disingenuously referred to the victim as one of the reasons he was seeking a lenient sentence, to wit, that he needed to take care of her. This is unbelievable; he is the author of her misfortune; she wouldn’t need help if he had not deliberately maimed her, to begin with. His argument is similar to that of a person who kills his parents and then seeks lenience on the ground that he is an orphan! That takes a lot of chutzpah! In any case, it is difficult to see how he would help her since, by his own admission, he has a second home and wouldn’t, therefore, bother the victim.
10. It is clear as day that the application has no merit. The same is dismissed.
Orders accordingly.
Dated and signed at Mombasa this 5th day of July 2024. Delivered virtually via Microsoft TEAMS.
2. The Applicant initially pleaded not guilty. On 8th February 2018, he changed his plea to guilty on both counts. The trial Court, upon considering the report of the Probation Officer, sentenced the Applicant to 30 years in jail. In passing the said sentence, the learned trial magistrate noted that the Applicant was not a first offender. His view was that “he should be locked up for long term to ensure he gets time to reflect and possibly to be able to reform. The community and the victim should also have some peace of mind”.
3. Dissatisfied with the sentence, the Applicant appealed to the High Court. His appeal was, however, not successful and was dismissed.
4. Vide this Miscellaneous Criminal Application, the Applicant seeks to have the sentence reviewed on the grounds that he has reformed and would not be a danger to the community and the victim.
5. The application was heard on 25th June 2024. The Applicant submitted that he was seeking forgiveness for what happened and desired to have his sentence reduced. He urged that his family was suffering and that he couldn’t help them while incarcerated. He also said that his wife, the victim of his cruel action, was unwell.
6. Ms Mwaura, learned counsel, on behalf of the Director of Public Prosecution, opposed the application. She submitted that the grounds that the Applicant relied on in his application were considered by the High Court and were found not to have merit. Thus, she prayed that the sentence meted out by the court below be retained and the application be dismissed.
7. I have very carefully considered the application. In essence, the Applicant seeks a second bite of the Cherry. He made the first attempt with the appeal, but that didn’t work. He has now come back with a second try.
8. In my view, the sentence passed by the court below, which was upheld by this court, is lawful, proportionate and just. Although under Section 234 of the Penal Code, the trial magistrate could have sentenced the Applicant to life imprisonment given the degree of harm and the vicious nature the offence was committed, she exercised her discretion and sentenced the Applicant to 30 years’ jail term. Given the nature of the injuries the victim sustained and the fact that she was maimed for life and could no longer support herself, the sentence, in my view, was lenient.
9. The Applicant, during the hearing, disingenuously referred to the victim as one of the reasons he was seeking a lenient sentence, to wit, that he needed to take care of her. This is unbelievable; he is the author of her misfortune; she wouldn’t need help if he had not deliberately maimed her, to begin with. His argument is similar to that of a person who kills his parents and then seeks lenience on the ground that he is an orphan! That takes a lot of chutzpah! In any case, it is difficult to see how he would help her since, by his own admission, he has a second home and wouldn’t, therefore, bother the victim.
10. It is clear as day that the application has no merit. The same is dismissed.
Orders accordingly.
Dated and signed at Mombasa this 5th day of July 2024. Delivered virtually via Microsoft TEAMS.