' '' BACK GROUND
1. The Applicant, Nancy Monyangi Okombo, currently serving a custodial term at Kisii Women Prison, was convicted before the Principal Magistrate’s Court at Etago in MCCR E086 of 2023 for two counts:
Count I: Grievous harm contrary to Section 234 of the Penal Code
Count II: Assault causing actual bodily harm contrary to Section 251 of the Penal Code.
2. She was sentenced to serve five (5) years imprisonment on the first count and one (1) year imprisonment on the second count.
3. Being aggrieved by the sentence, the applicant has moved this court under Section 362 and 364 of the Criminal Procedure Code seeking revision of her sentence. She prays that the court reviews and substitutes the custodial term with a probation sentence, or in the alternative, varies the term to a shorter one.
Grounds of the Application
4. The application is premised on the following grounds:
a. The applicant is a first offender who has never been in conflict with the law before.
b. . She is remorseful and has since reformed.
c. She is the sole breadwinner of her young family who are currently suffering due to her incarceration.
d. She has demonstrated good conduct while in prison.
e. The application is made under the inherent powers of the court to do justice and to revise or vary a sentence that is manifestly excessive or harsh.
Legal Framework
5. The court’s powers of revision are provided under Section 362 of the Criminal Procedure Code (CPC):
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed...”
Further, Section 364(1)(b) CPC empowers this court to alter or reverse a sentence where it finds the same to be illegal or improper.
Analysis and Determination
6. . The applicant’s plea is not against the conviction, but solely against the severity of the sentence.
The record of the trial court shows that the maximum penalty for grievous harm under Section 234 of the Penal Code is life imprisonment, while that of assault causing actual bodily harm under Section 251 is five years imprisonment.
It is therefore evident that the sentence of five years and one year respectively was within the lawful limits. The the guiding principle is that sentencing should be proportionate and individualized, taking into account mitigating and aggravating circumstances.
In Ogolla s/o Owuor v Republic [1954] EACA 270, the court held that:
“The Court does not alter a sentence merely because it thinks that another tribunal might have imposed a different one, but only where it is evident that the trial court acted upon some wrong principle or overlooked some material factor.”
7. I have considered the application for sentence review a, the nature of the offence and it''''s circumstances , the fact that applicant has served one year in prison and that she is an ex girl friend to 1 st complainant . It has also emerged that the applicant found both complainants in the house of the 1st complainant picked her clothes and returned with a knife and used it to assault both of them; she stabbed 1st complainant on his chest and 1st complainant on the right hand. I have also seen the pre-sentence review report filed herein. The same says the community has no issue with applicant but does not include views of the complainants . This court takes Judicial notice that as a matter of practice within the jurisdiction of this court ,the views of complainants are usually sought before release of convicts before the end of their prison terms to ensure security of the convicts before returning home..
8. Though the applicant says she is remorseful I find that she inflicted serious injuries upon complainants and her security will may be guaranteed at home if released on probation. The Sentence on count 1 is reduced to 3 years .Sentence for Count 2 will remain the same .
10.This file is closed .
T.A ODERA
JUDGE
6.11.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF THE APPLICANT, MR KOIMA FOR STATE AND CA KIPCHIRCHIR.
'' '
1. The Applicant, Nancy Monyangi Okombo, currently serving a custodial term at Kisii Women Prison, was convicted before the Principal Magistrate’s Court at Etago in MCCR E086 of 2023 for two counts:
Count I: Grievous harm contrary to Section 234 of the Penal Code
Count II: Assault causing actual bodily harm contrary to Section 251 of the Penal Code.
2. She was sentenced to serve five (5) years imprisonment on the first count and one (1) year imprisonment on the second count.
3. Being aggrieved by the sentence, the applicant has moved this court under Section 362 and 364 of the Criminal Procedure Code seeking revision of her sentence. She prays that the court reviews and substitutes the custodial term with a probation sentence, or in the alternative, varies the term to a shorter one.
Grounds of the Application
4. The application is premised on the following grounds:
a. The applicant is a first offender who has never been in conflict with the law before.
b. . She is remorseful and has since reformed.
c. She is the sole breadwinner of her young family who are currently suffering due to her incarceration.
d. She has demonstrated good conduct while in prison.
e. The application is made under the inherent powers of the court to do justice and to revise or vary a sentence that is manifestly excessive or harsh.
Legal Framework
5. The court’s powers of revision are provided under Section 362 of the Criminal Procedure Code (CPC):
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed...”
Further, Section 364(1)(b) CPC empowers this court to alter or reverse a sentence where it finds the same to be illegal or improper.
Analysis and Determination
6. . The applicant’s plea is not against the conviction, but solely against the severity of the sentence.
The record of the trial court shows that the maximum penalty for grievous harm under Section 234 of the Penal Code is life imprisonment, while that of assault causing actual bodily harm under Section 251 is five years imprisonment.
It is therefore evident that the sentence of five years and one year respectively was within the lawful limits. The the guiding principle is that sentencing should be proportionate and individualized, taking into account mitigating and aggravating circumstances.
In Ogolla s/o Owuor v Republic [1954] EACA 270, the court held that:
“The Court does not alter a sentence merely because it thinks that another tribunal might have imposed a different one, but only where it is evident that the trial court acted upon some wrong principle or overlooked some material factor.”
7. I have considered the application for sentence review a, the nature of the offence and it''''s circumstances , the fact that applicant has served one year in prison and that she is an ex girl friend to 1 st complainant . It has also emerged that the applicant found both complainants in the house of the 1st complainant picked her clothes and returned with a knife and used it to assault both of them; she stabbed 1st complainant on his chest and 1st complainant on the right hand. I have also seen the pre-sentence review report filed herein. The same says the community has no issue with applicant but does not include views of the complainants . This court takes Judicial notice that as a matter of practice within the jurisdiction of this court ,the views of complainants are usually sought before release of convicts before the end of their prison terms to ensure security of the convicts before returning home..
8. Though the applicant says she is remorseful I find that she inflicted serious injuries upon complainants and her security will may be guaranteed at home if released on probation. The Sentence on count 1 is reduced to 3 years .Sentence for Count 2 will remain the same .
10.This file is closed .
T.A ODERA
JUDGE
6.11.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF THE APPLICANT, MR KOIMA FOR STATE AND CA KIPCHIRCHIR.
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