Kitonyi v Republic [2022] KEHC 352 (KLR)

Kitonyi v Republic (Criminal Revision E243 of 2021) [2022] KEHC 352 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 352 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E243 of 2021

MM Kasango, J

May 5, 2022

Between

Redempta Kasiva Kitonyi

Applicant

and

Republic

Respondent

(Being a Revision Application against the sentence of 8th July, 2020 in the Kiambu Chief Magistrate’s Court at Thika (Hon. J.M. Nangea, CM) Criminal Case No. 1696 of 2021)

Ruling

1. Redempta Kasiva Kitonyi on 16th June, 2020 pleaded guilty to the offence of grievous harm contrary to section 234 of the Penal Code. She was on 8th July, 2020 sentenced to serve to 10 years imprisonment.

2. By her application field before this Court on 18th August, 2021 Redempta seeks revision of that sentence. She prays that this Court do sentence her to non-custodial sentence.

3. The application is moved under the provisions of Section 362 of the Criminal Procedure codewhich provides:-a person who unlawfully does grievous harm to another is guilty of a felony and is liable for imprisonment for life.”

4. The above section evidently requires the High Court to examine the subordinate court’s record to satisfy itself on the correctness, legality or propriety of the subject order.

5. I confirm that on Redempta pleading guilty to the offence, the trial court invited the State to provide the facts of the case. Redempta confirmed those facts were correct. It is then that the trial court recorded plea of guilty. Redemtpa was invited to mitigate. In her mitigation, Redempta stated:-I pray for leniency. I have reformed. My children depend on me. I am 25 years old.”

6. The trial court requested the probation officer to provide pre-sentencing report. That report reflects the victims attitude to the sentence as follows:-The complainant stated that they had lived with the accused for two years and they had never had any differences. She further mentioned that the accused intention was to kill her since she poured 10 litres of paraffin on her body and she was about to lit her when the complainant got hold of the match stick and it socked (sic) with blood oozing from the cuts she had made on her head and that is how she did not manage to burn her.The complainant further mentioned that she was hospitalised for a long time and had to undergo surgery 5 times with the bills in the hospital accruing to Kshs.984,000. The complainant is still traumatised and lives in fear. The accused has never apologised to her and she has never told her the reason as to why she wanted to kill her. She therefore feels that the accused is a threat to her.”

7. The report noted that Redempta was single without dependants. On questioning Redempta on the circumstances of the offence, the probation officer noted as follows:-The accused person gave us three different explanations on what transpired. She first stated that there was a strange being that used to sleep with her. The same strange being directed her to attack the complainant. She then changed the story stating that the complainant had suspected her to be moving with the husband. The complainant tried attacking her and in the process of defending herself, she got hold of the panga and attacked her back.The third explanation from the accused person was that she was the one supporting her family back in the rural area. The brother had been chased away due to lack of school fees and since she didn’t have money to send home, she purposed to attack the complainant and threaten her so that she could give her money.”

8. It is the above that the trial court considered in sentencing Redempta.

Analysis and Determination 9. On conviction under Section 234 of the Penal Codethe court can sentence a person to a maximum penalty of life imprisonment. Section 234 of the Penal Code provides:-a person who unlawfully does grievous harm to another is guilty of a felony and is liable for imprisonment for life.”

10. Redempta having moved for Revision under Section 362 of the Criminal Procedure Codecannot expect this Court to sit on appeal of the trial court’s sentence.

11. On examination of the trial court’s record I can find no impropriety or illegality in the trial court’s sentence.

12. Redempta was a house help of the victim. She attacked her employer with no provocation and inflicted on her very serious injuries. In my view, the injuries were grievous and the attack was savage. The sentence of 10 years imprisonment was commensurate to the crime.

13. The application for revision is dismissed.

RULING DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceMr. Kasyoka for the RepublicCOURTRuling delivered virtually.MARY KASANGOJUDGE