Beatrice Ngwasi Kyusya v Republic [2016] KEHC 826 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL APPEAL NO. 58 OF 2015

BEATRICE NGWASI KYUSYA……..............................APPELLANT

VERSUS

REPUBLIC……………………………….…...……..RESPONDENT

(Being an appeal from the original conviction and sentence in Mutomo Senior Resident Magistrate’s Court Criminal Case No. 267 of 2013 by Hon. S. K. Mutai Ag. P M on 31/03/14)

J U D G M E N T

1. Beatrice Ngwasi Kyusya,“the Appellant” was charged with the offence of Attempted Murdercontrary to Section 220(6)of the Penal Code.Particulars of the offence were that on the 30thday of November, 2013 at about 5. 00 a.m.at Mumbuni Village, Kyatune Locationof Mutomo Districtwithin Kitui County,with intent attempted unlawfully to cause the death of Francis Kiusya alias Kivaoby stabbing him with a sword.

2. In the second count, she faced a charge of Attempted Suicidecontrary to Section 226as read with Section 36of the Penal Code.Particulars of the offence were that on the 30thday of November, 2013 at about 5. 00 a.m.at Mumbuni Village, Kyatune Locationof Mutomo Districtwithin Kitui County,with intent, she attempted to kill herself by taking a poison namely Diazonol.

3. She was tried convicted and sentenced to serve 10 years imprisonmenton the 1st count and two (2) years imprisonmenton the second count.  Sentences were to run concurrently.

4. Being dissatisfied with the sentence imposed she mitigates on grounds that the sentence meted out was harsh and she is a single parent with Seven (7) children.

5. In her written submissions she stated that life in prison is demeaning, humiliating and dehumanizing.  She has been rehabilitated and acquired skills in dressmaking, baking and knitting.  Her children need parental care.

6. In a response thereto, the State through Mr. Njogua Prosecuting Counsel opposed the appeal arguing that the sentence was not excessive.  He urged the court to uphold the sentence imposed.

7. I have been called upon to interfere with the sentence imposed by the Lower Court.  In determining the issue I must reconsider circumstances in which the Lower Court came up with the sentence imposed and come up with my own conclusion bearing in mind that I had no opportunity of hearing the Appellant mitigate.

8. In the case of Shadrack Kipkoech Kogo vs. Republic, Eldoret Criminal Appeal No. 253 of 2003the Court of Appeal held that:

“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered with.  (Also see sayeka vs. Republic (1989) KLR 360)

9. The sentence provided for the offence the Appellant was charged with and convicted for is upto life imprisonment.

10. Taking into consideration circumstances in which the offence was committed, the offender (Appellant) inflicted serious injuries on the person of the Complainant, her husband and attempted to commit suicide.  In sentencing her, the trial court took into consideration mitigating factors.  In the premises the sentence imposed was not excessive or harsh.  The appeal lacks merit, accordingly, it is dismissed.

11. It is so ordered.

Dated, Signed and Delivered at Kitui this 12th day of October, 2016.

L. N. MUTENDE

JUDGE