William Kiptum Raimoi v Republic [2013] KEHC 2212 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 169 OF 2011

WILLIAM KIPTUM RAIMOI ...................................................... APPELLANT

VERSUS

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

(Being an appeal against conviction and sentence of the Resident Magistrate's Court at Eldama Ravine, delivered by Hon. M. Kasera (Senior Resident Magistrate) on 29th July, 2011 in Criminal Case No. 55 of 2011)

JUDGMENT

The Appellant was  initially charged with assault causing actual bodily harm Contrary to Section 251 of the Penal Code.  Particualrs of the same were that on the 14th day of January, 2011, at Oinapsas Village in Koibatek District within Baringo County unlawfully assaulted Gilbert Kipkemei Toroitich, occasioning him actual bodily  harm.

He pleaded not guilty to the charge on 17/1/2011 and  hearing was fixed for 21/2/2011.  On this date, the prosecution applied to substitute the charge to one of  Grevious Harm Contrary to Section 234 of the Penal Code.  He argued that after the P.3 form was filled, the Medical Officer had  assessed the degree of injury as maim.

The  Court allowed the request by the  prosecutor.  The  charge read  that  the Appellant was charged with  Grevious Harm Contrary to Section 234 of the Penal Code.  Particulars  of the charge were that on the 14th day of  January, 2011 at  Oinapsos Village in Koibatek District within Baringo County, unlawfully did grevious  harm to Gilbert Kipkemoi Toroitich.

The Appellant pleaded  guilty.  The facts were read to him which he said were not correct.  A plea  of  not guilty was entered.  Prosecution called five witnesses.  The  Appellant  was put on his defence and he gave a sworn statement of defence.  Judgment was delivered on 29th July, 2011.  He was found guilty, convicted and sentenced to pay a fine of Kshs 60,000/=, in default, serve four years imprisonment.

He appealed  to this Court only against the sentence.  Under the grounds of appeal filed in court on 24th August, 2011, he has prayed for  leniency citing the following reasons:-

1.      That he was most remorseful and deeply regret the incidence.

2.       That he is a first offender.

3.       That extreme anger on provocation rendered him insane and committed the offence at a moment of “passion” hence was not in lucid state of mind.

4.       That he is a relative of the complainant who is his nephew.

5.       That for the duration of his stay in remand and subsequent imprisonment, he has learned the importance and value of humility.

6.       That he has a family that wholly depends on him for subsistence who stand to suffer irreparably because of his long incarceration.

7.     That he is an old man aged 64 years and his continued stay in  prison is imparting negatively on his health.

The appeal was canvassed  before me on 6th June, 2013.  He urged Court to reduce the sentence  arguing that  he was  diabetic and required special diet that cannot be availed at the prison.  He  said he was old, aged 71 years and was  remorseful.

The prosecuting counsel, Mr. Mulati opposed the appeal.  He  submitted that the sentence imposed by the trial Court was  reasonable and should not be varied.

Section 234 of the Penal Code provides that “any person who unlawfully, and does grievious harm to another is guilty of a felony and is liable to imprisonment for life.”

Thus, the law only sets the minimum  sentence that the Court should impose.  In so doing, the Court must  look at the  circumstances and the facts of each case when sentencing.  Specifically, sentence is the discretion of the Court, but such discretion must be exercised in light of  all facts of the case tendered before  the Court.

In  the case of SHADDRACK KIPKOECH KOGO -VS- REPUBLIC – CRIMINAL APPEAL NO. 253 OF 2003 (unreported) – Court of Appeal  sitting at Eldoret, Omollo, O'Kubasu and Onyango Otieno, JJA said:-

“ Sentence is essentially an exercise of discretion of 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  failed to take into account a relevant factor or that a wrong principle was applied or short of those the sentence itself is so harsh and excessive that an error in principle must be  inferred.”

The Principles to be applied  in sentencing were well laid down in the case of OMUSE =VRS=  REPUBLIC (2009), KLR, 214, when  Hon. O'Kubasu, Waki and Onyango Otieno, JJA, when relying on decided cases said;

InMACHARIA =VRS= R. (2003), E.A.  559this Court stated:-

“The  Principle upon which this Court will act in  exercising its jurisdiction to review or alter a sentence imposed by the Court have been firmly settled as far back as 1954, in the case of OGOLA S/OOWUOR (1954) EACA, 270 wherein the predecessor of this Court stated:-

“The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere  with the discretion exercised by a trial  Judge, unless as was said in JAMES -VRS- R (1950) 18 EACA  147, it is evidence that the Judge acted upon some  wrong principles or overlooked some material factors. To  this we would  also add a third criterion namely, that the   sentence is manifestly excessive in view of the circumstances of the case     R-V- S SHERXHAWSKY  (1912) CCA 28 TLR 263.  Further, the  Law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and it was thus not proper exercise of discretion in sentencing  for the Court  to have failed to look at the facts and  circumstances of the case in their entirety   before settling for any given sentence.  See AMBANI -VRS- R. (1990)KLR   161. ”

Moreover, an appellate Court is  empowered by section 254 (3) (b) of the Criminal  Procedure Code to  alter the sentence when the appeal is only against the sentence.  It provides thus:-

“254 (3) The Court may then, if  it considers that there is insufficient ground for  interfering, dismiss the appeal or may -

(b)  In an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence.”

The facts of the case disclose that the Appellant and the Complainant are related, the  latter being the  nephew  to the former, there was  long outstanding  disquiet between the families of the two parties.  The Appellant claimed that the family of the Complainant  had severally allowed their livestock (goats) to graze on his farm.  He had sent warnings to the family of the Complainant but his call that it desists from this act was not heeded to.  On  the material date, a similar scenario arose.  A  confrontation followed as a consequence thereof.  The appellant therefore acted under extreme provocation.  It is also factual that elders had been called to  resolve this dispute but the matter came to Court before  reconciliation was done.

The Appellant expresses a lot of remorse.  It looks  he  is not likely to carry this grudge  on  even after serving the sentence.  The Appellant and the complainant are related and it is  important  that the Court  promotes reconciliation.  Whereas, I find the sentence imposed as being fair, it is also important that I consider that the Appellant  having sought forgiveness does not leave the prison a bitter man but one who is  ready and willing to  embrace the reconciliation that had commenced.

He is also an elderly man.  He has learnt his lesson for the period he has served and he now knows that the law will take its cause if he takes it in his own hands.

Having regard to all  these factors, I reduce  the sentence  to two and half years to be tabulated from the date of conviction.

It is so ordered.

DATED and DELIVERED at ELDORET this 25th day of July, 2013.

G. W. NGENYE - MACHARIA

JUDGE

In the presence of:

Appellant present in person

Mr. Wainaina for the State/Respondent