Mutembei Jediel Ndwiga v Republic [2019] KEHC 10184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CRIMINAL REVISION NO.141 OF 2018

MUTEMBEI JEDIEL NDWIGA......................................APPLICANT

VERSUS

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

(From original conviction and sentence in Criminal Case No. 757 of 2012 of the Principal Magistrate's Court at Chuka).

R U L I N G

1. Mutembei Jediel Ndwiga, the applicant herein was charged and convicted  together with two others for the offence of grievous harm contrary to  Section 234 of the Penal Code vide Chuka Principal Magistrate's Court Criminal Case No.757/2012.

The particulars of the offence were that on 3rd July 2012 at Kamara  Chogoria Location within Tharaka Nithi County, the applicant jointly with  others unlawfully cause grievous harm to Moses  Kinegeni.  The applicant  herein and his two Co-accused upon conviction  were sentenced to serve 5  years imprisonment each on 12th October 2015.

2. The applicant has now moved this court under Sections 362 and 364 of the Criminal Procedure Code for review of his sentence  on the following  grounds:-

(i) That he was a first offender.

(ii) That he is a breadwinner in his family,

(iii) That he is remorseful  and should be forgiven

(iv) That he is now rehabilitated

(v) That his sentence should be reduced to a non custodial one.

3. The applicant has sworn an affidavit to support the above grounds.

4. This court did call for the lower court file pursuant to the provisions of  Section 362 of the Criminal Procedure Code upon perusal of the record  and the judgment this court is satisfied with the correctness, legality and  propriety of the proceedings and the judgment delivered by the trial court.

5. The victim/complainant suffered serious injuries including a closed fracture   of the right tibia and fibula.  The sentence provided under Section 234 of the  Penal Code is a maximum of life imprisonment.  The trial court exercised  its discretion under Section 26(2) of the Penal Code and handed out  5 years  each to the applicant and his Co-accused .  This court can only intervene if it  is established that the trial  court took into consideration an irrelevant factor  or omitted a relevant one in the exercise of discretion.  The applicant has not  attacked the trial court's exercise of that discretion perhaps for  good reason.   The trial court was actually lenient to the applicant and his Co-accused  because  5 years imprisonment in my view of the offence committed is  lenient and the applicant could not have asked for more because at the end of  the day he and his partners in crime need time to reflect on the crime they  committed and reform.  They should not have taken the law into their hands  and cause serious/grievous injuries to their neighbour regardless of the  differences they might have had.  Had the State asked for enhancement, I  would enhance the sentence.

In the premises this court finds no merit in this application dated 7th August, 2018.  The same is disallowed. The applicant is advised to be of good behavour and continue with his rehabilitation and transformation in the correctional facility he is kept.

Dated, signed and delivered at Chuka this 23rd day of January, 2019.

R.K. LIMO

JUDGE

22/1/2019

Ruling signed, dated and delivered in the open court in presence of applicant in person and Momanyi for Director of Public Prosecution/Respondent.

R.K. LIMO

JUDGE

23/1/2019