Bonface Rotich Monoo, Wisley Wabweni Morei & Timothy Ndiwa Juma v Republic [2017] KEHC 4579 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL CASE NO.  8 OF 2015

[being an appeal from the  sentence in Sirisia  PMCC Criminal case no. 608 of 2013 by F. Kyambia (PM) delivered on 16. 01. 2015]

BONFACE ROTICH MONOO.............................1st APPELLANT

WISLEY WABWENI MOREI ...........................2ND APPELLANT

TIMOTHY NDIWA JUMA................................3RD  APPELLANT

VERSUS

REPUBLIC..............................................................RESPONDENT

JUDGMENT

1. BONFACE ROTICH MONOO (the appellant) WISLEY WABWENI   MOREIand TIMOTHY NDIWA JUMA were convicted for a charge of   assault causing actual bodily harm contrary to Section 251 of the Penal Code having assaulted CALEB CHEPKOI on 04. 09. 2013 at CHEMEGOTOI village in  CHESIKAKI location within Bungoma County. They were sentenced  to serve  5 years on that count.

2. 1st appellant was also convicted for the offence of  obstructing a police  officer in  the course of  duty contrary to Section 103 (9) of the  National Police Service Act No. 11 A of 2011 and sentenced to serve 3 years imprisonment.

The sentences were to run consecutively.

3. A brief background to the matter is that the complainant CALEB (PW1)had been called by one WESLEY WAMBWENI to solve a boundary dispute. However the exercise did  not  take place, and the appellant who was armed  with a panga  cut  him at the back of his head and he lost consciousness.  The other appellants joined in the  assault.

The medical findings described the injury as a deep cut caused by a sharp object. The wound was  stitched and the degree of injury was  classified as harm.

4.  When CPL.  KENNETH KINYUA (PW4)who was assigned to investigate the matter  he went to the appellants  home, the  1st appellant armed  himself with a panga and refused to open the door. However  since the  officers were armed, they  managed to subdue him.

5. The appellants abandoned their appeal on conviction and opted to appeal only on sentence. Mr. Mukisu on behalf of the appellants submitted that the sentence was very harsh and  excessive bearing in  mind that they  were first offenders and were thus entitled to a non-  custodial  sentence.

6. He urged  the court to  consider that the appellants and the victim hailed from the same village and were related.

7. Counsel  also pointed out that the trial Magistrate did not say why a  custodial sentence was the best option – merely saying that  the wound he saw was  so grievous and meted the  maximum sentence for  assault.  He urged the court to  pay need to Section 26 of the Criminal Procedure  Code and reduce the sentence.

He also pointed out that the appellants  had already served 2 years  6 months in prison and that was sufficient  punishment.

8. As regards the 1st appellant who was also convicted for obstructing  police officers in  the course of their duties  and given a  3 year  sentence  to  run consecutively to the 5 year sentence, Mr. Mukisu argues that a   total of 8 years imprisonment is rather harsh and he ought to be given a non-custodial sentence on this count, or at least reduce the period to  what he has already served, and at worst order that the sentence should run   concurrently.

9.   MR. AKELLO on behalf of  the State conceded that since the appellants  were first offenders, a 5 year sentence for assault is  rather harsh.  However he was  opposed to a non-custodial   and urged the court to reduce the sentence. He was  agreeable to the sentence being served by 1st appellant separately to run concurrently.

10.  In  meting out the sentence the trial Magistrate stated   he had an  opportunity to see the injury inflicted on the complainant and it was  grievous so under  the circumstances he meted the custodial sentence.

11.  Indeed the aspect of observation by the trial Magistrate regarding the  injury was rather misplaced, perhaps a misapplication of the term   “grievous” because  the medical report was  quiet clear that the injury  was assessed as harm.

12. The  Judiciary's sentencing policy guidelines   place a  duty on the court to  bear   in mind the high rates of recividism associated with imprisonment and  seek  to impose a sentence geared towards    steering  the offender from crime. The court must also consider the  gravity of the offence, and the criminal  history of the  offender.

13. The principles under pinning the sentencing process include proportionality-   the sentence meted  must be  proportionate to the offenders behavior. However I also recognize that  the objective of sentencing  is for retribution to punish  the offender for his  conduct and  deter the offender from  subsequently committing  a similar offence.

I take into consideration all these factors and I am of the opinion that indeed the 5 year sentence was too harsh and I reduce it to the period  already served for the 1st count.

14.  As for the  2nd count for which 1st appellant was convicted for , I must point out that a very  worrying culture is taking root in Kenya where  there is total disregard for authority. Indeed police officers have  paid   a high price in the course of their duties and for  one to arm   themselves in a bid to obstruct police officers cannot be condoned or   looked at with  rose   coloured lenses. In my view the 3 years sentence  was well deserved but ought to run concurrently  with the term  already served.

It is to that extent that   the appeal succeeds.

DELIVERED and DATED this 15th day of June, 2017 at BUNGOMA.

H. A OMONDI

JUDGE.