ROSE IMINZA v REPUBLIC [2010] KEHC 1598 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Criminal Appeal 82 of 2009

ROSE IMINZA ::::::::::::::::::::::::::::::::::::::::::::::::::APPEALLANT

=VERSUS=

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::REPUBLIC

(Appeal from the decision ofHon. A.B. MongareESQ. Resident Magistrate delivered on 15thMay2009 at theChief Magistrate’s Court atEldoretinEldoret CMCR. No. 2906 of2009 on conviction and sentence)

JUDGMENT

I.Background

1. The appeallant, a female adult, had been

approached on the 30th April, 2009, by

the Complainant to pay her debts of

moneys due and owing.The appeallant

attacked the complaint with a razor.

According to the medical report, that

attack was so severe causing cuts on

checks, jaws, neck and a missing index nail.

2. The appeallant was charged with the offence of Grievous Harm

Contrary to Section 234 of the Penal Code

The Particulars of Offence being:

Rose Iminza

On the 30th day of April, 2009 at Eldoret Town in Uasin Gishu District within Rift Valley Province unlawfully did Grievous Harm to Caroline Chepkoech.

3. On the 11th May 2006 the appeallant admitted the offence as read together with the facts of the case.She wasconvicted on her own plea of guilty and sentenced to 5 years imprisonment.

II.Proceedings

4. Being dissatisfied with the conviction and sentence the appeallant appealed to this High Court of Kenya and on 11th December 2009, the appeal was admitted for hearing (Mwilu J).The appeal was thereafter heardby Osiemo J but he wasnot available to write the Judgment.

5. I was thereafter directed to write and

complete this Judgment by the Hon. The Chief Justice through the Principle Judge.

III.Appeal

6. The Petition of Appeal stated that::

i). The Appeallant pleaded

guilty to the offence.

ii).The Appeallant was

tortured, blackmailed.

iii).The language used was not

understood

iv).The sentence was harsh

7. When the Appeallant made submissions she only mentioned thatshe wished the sentence be reduced.No submissions was made as to the issue of torture, black mail, language understood.All she stated was the“--- appeal is against sentence only.I am a first offender.I am an orphan and I have two children and my mother died in 2008. I pray for leniency”.

8. The state opposed the appeal on grounds that the sentence was lawful.That the sentence of 5 years imprisonment was not lawful.

IV.Findings

9. The Law provides that in a plea of guilty there should be no appealSAVE as to the legality of the conviction and sentence.

10. In this appeal, the issue that wasto be

dealt with was that of torture and blackmail.

No mention of thiswas made and as such,

this Court has no indicationas to how these

grounds weremade and relied on.

11. There being no basis as to conviction,

the same is hereby dismissed.

12. As to the sentence, the injuries sustained by the appeallant most certainly was Grievous.The Complainantlost a finger nail. Shesustained razor cuts on her face/jaw and throat region which most certainly may have been fatal.

13. I accordingly find that the 5 years

imprisonment was not excessive.The

maximum imprisonment is life

imprisonment.

14. The appeal is hereby dismissed.

DATED this 1ST day of September 2010 at ELDORET

M.A. ANG’AWA

JUDGE

Advocate

(i)J.K. Chirchir, Senior State Counsel, instructed by the office of the Attorney General for the State-Present

(ii)Rose Iminza, Appeallant in person-Present