A M v Republic [2017] KEHC 2095 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CRIMINAL APPEAL NO.11 OF 2017

A M ………………………………………….APPELLANT

VERSUS

REPUBLIC …………………..……………RESPONDENT

(From original Criminal Case No.458 of 2017 of Principal Magistrate’s Court at Marsabit)

JUDGEMENT

The appellant was charged with the offence of grievous harm Contrary to Section 231(a) as read with Section 234 of the Penal Code.  The particulars of the offence were that the appellant on the 15th day of September, 2017 at North Horr township Mosque in North Horr sub County within Marsabit County unlawfully did grievous harm to Ahmed Mohamed.

The appellant pleaded guilty to the charge.  He was convicted and sentenced to serve five (5) years imprisonment.  The grounds of appeal area that:-

1. The appellant pleaded guilty.

2. The appellant’s mother was assaulted and she reported at North Horr Police station but no action was taken.

3. The sentence is harsh and excessive

4. The appellant is a first offender and is 17 years old

The appellant informed the Court that he lives with his mother and siblings. They all depend on him.  He prays for leniency.

Mr. Mwangangi, Prosecution Counsel, opposed the appeal on conviction.  Counsel submitted that the appellant pleaded guilty.  Section 348 of the Criminal Procedure Code is to the effect that once someone pleads guilty, he/she can only appeal on sentence.  Counsel concedes that the sentence is excessive.  The appellant was taken for age assessment and was found to be in the age group of 15-17 years.  Sections 190 and 191 of the Children Act provides for methods of punishing young offenders.  The appellant is a minor.  The issue of age did not come out in the lower Court.

From the appellant’s grounds of appeal and his submissions in court, it is clear that he is not contesting the conviction.  The appeal is only on sentence. The offence occurred on 16. 9.2017.  The appellant was arrested on the same day but brought before the Court on 28. 9.2017.  He had been granted cash bail ofKsh.10,000 by the Police.  The charges were read over to him and he responded that he assaulted the complainant.  The facts were read to him and he admitted the offence.  I do find that the plea was unequivocal.  The conviction is proper.

On the issue of sentence, it is evident that the appellant is a minor.  The victim of the offence is a 70 year old man.  It appears that the victim had assaulted the appellant’s mother.  The matter was reported to the Police but no action was taken.  This made the appellant to seek revenge.  The Court ordered for age assessment of the appellant.  The report from Marsabit District Hospital dated 19. 10. 2017 indicate that the appellant belongs to the age group of 15-17 years.  He is under the age of 18 years.

Section 190 of the Children Act No.8 of 2001 states that no Child shall be ordered to imprisonment or to be placed in a detention camp. Section 191 of the Children Act provide for methods of dealing with child offenders.  There are several methods provided on how the Court can punish child offenders.

The records shows that the appellant was charged on 28. 9.2017.  He was convicted on the same day.  He has been in custody for over one month by now.  The trial Court did not order for a pre-sentencing report.  The appellant did not tell the trial court that he is 17 years old.  Given the circumstances of the case, I do not find it prudent to order the appellant to perform community service or grant him conditional release.   I do find that the period the appellant has been in prison is sufficient punishment.  He must have learnt a lesson by now.  I do also take into account the fact that the appellant pleaded guilty and has owned up to his mistakes.

In the end, I do find that the conviction is proper.  The five years imprisonment sentence imposed by the trial court is hereby set aside and replaced with the period already served.  The appellant shall  be set at liberty unless otherwise lawfully held.

Dated, Signed and Delivered this 9th day of  November 2017

SAID CHITEMBWE

JUDGE