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|Case Number:||Criminal Appeal 358 of 2008|
|Parties:||Charo Ngumbao Gugudu v Republic|
|Date Delivered:||21 Jan 2011|
|Court:||Court of Appeal at Mombasa|
|Judge(s):||Johnson Evan Gicheru, Emmanuel Okello O'Kubasu, Philip Nyamu Waki|
|Citation:||Charo Ngumbao Gugudu v Republic  eKLR|
|Case History:||(Appeal from the judgment of the High Court of Kenya at Malindi (Khaminwa, J.) dated 5th September, 2002 in H.C.CR.A. NO. 56 OF 2001)|
|History Docket No:||56 of 2001|
|History Judges:||Joyce Nuku Khaminwa|
Criminal Practice and Procedure – sentence – legality of sentence – appellant having been sentenced to life imprisonment with 15 strokes of the cane for a conviction of causing grievous bodily harm - principle upon which the appellate court will act in exercising its jurisdiction to review or alter a sentence imposed by the trial court – corporal punishment having been legal at the time of sentencing but having later been revoked – effect of – Penal Code (Cap 63) section 234
|Case Outcome:||Appeal Allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
JUDGMENT OF THE COURT
The appellant, CHARO NGUMBAO GUGUDU, was convicted and sentenced to life imprisonment together with 15 strokes of the cane by the learned Ag. Principal Magistrate (Mrs. J. M. Matu) on a charge of causing grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were as follows:
The appellant’s trial commenced on 15th December, 1999 when the following prosecution witnesses testified: Ngumbao Kavitsa Tsofa (PW1), Habiba Bakari Saro (PW2), Ahmed Roba Manza (PW3), PC Leonard Kiplimo (PW4) and the complainant Kenga Karisa Mangi (PW5). The complainant’s evidence was brief and was supported by the evidence of Tsofa (PW1) and Saro (PW2) who witnessed the incident. In his evidence in chief, the complainant stated:
“My names are Kenga Karisa Mangi. I stay at Ganda. I am a farmer. I know the accused. He is my uncle (Mjomba wangu). I was coming from the mosque. I had a bicycle. I was going home. The accused came from the hotel of Chengo Bundi. The accused told me “utaona”. One day as I was coming from work in Malindi the accused abused me: He told me “Utaona”. He then beat me with “Muti” on the neck and waist. People poured water on me. I was injured. I was unconscious I next found myself in hospital. The weapon that hit me is in court (exhibit 1 identified). It was Charo who hit me with this weapon. My left leg and arm are paralyzed”.
yi The learned trial magistrate considered the evidence before her and in a judgment delivered on 9th February, 2000 convicted the appellant by stating:
“There is no evidence that PW1 attacked the accused. Even if there was such evidence, it is clear that the accused who had all the chance to escape from PW5 armed himself calculatedly re-attacked PW5 with the intention of killing him. The reason of the accused’s attack on PW1 was irrational. The force he used on PW5 was excessive. The accused’s assault on PW5 was therefore by all means unlawful. Reasons wherefore I find the accused person guilty and convict him of the offence of grievous harm contrary to section 234 of the Penal Code”.
The learned trial magistrate stated that she wholly accepted the prosecutor’s request and proceeded to sentence the appellant to life imprisonment plus 15 strokes of the cane.
Being aggrieved by the foregoing, the appellant filed an appeal in the High Court and when his appeal came up for hearing before Khaminwa J. on 31st July, 2002, the appellant informed the learned Judge that the appeal was against the sentence only.
The learned State Counsel (Ms. Mwaniki) appearing for the State addressed the Court as follows:
“I do not oppose appeal. The court to consider the injuries inflicted to complainant. He was admitted for 3 months up to date the complainant cannot speak properly. He suffered severe injury. He is a relative of appellant. He was in deep coma. I ask this court to take those factors in consideration. The sentence is excessive punishment provided is that the sentence be life imprisonment. Appellant is first offender. I leave the matter to court”.
Still dissatisfied with the judgment of the High Court, the appellant now comes to this Court by way of second appeal. This is the appeal that came up for hearing before us on 18th January, 2011 when Mr. Gikandi appeared for the appellant while Mr. Ondari (Assistant Deputy Public Prosecutor) appeared for the State.
In his submissions, Mr. Gikandi stated that he wished to confine himself to the legality of the sentence only. He argued that when the appellant was convicted he was only 22 years old so that as of now (2011) the appellant has been in prison for 11 years. Mr. Gikandi informed us that the appellant who was a first offender was awarded the maximum sentence of life imprisonment as provided under Section 234 of the Penal Code.
In his brief address, Mr. Ondari conceded that the two courts below did not consider all the circumstances of the case which would have affected the sentence like the fact that there was provocation and that the appellant was a first offender.
In this appeal, we have set out the genesis of the appellant’s tribu,lations by reproducing portions of the evidence given during the trial. There can be no doubt that this was uncalled for incident in which the appellant inflicted very serious injuries on the complainant. The fact that the appellant’s appeal in the High Court was against the sentence only, confirms that the appellant accepted his wrongdoing but sought the intervention of the High Court as regards the sentence. Section 234 of the Penal Code under which the appellant was charged and convicted provided:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life with or without corporal punishment”.
From the foregoing, it is clear that maximum sentence under that section was life imprisonment with or without corporal punishment. It has long been a principle of sentencing that a maximum sentence should only be meted out to the worst offender under the particular section that the offender is charged. In this appeal, the appellant was a first offender aged about 22 at the time of the offence. It is true that the complainant suffered serious injuries but it is equally true that the appellant was provoked at the time that he hit the complainant. There was no basis for the finding made by the trial magistrate and upheld by the superior court, that the complainant was “completely mentally disabled”. It is also to be noted that the State had conceded during the appeal in the High Court that the sentence of life imprisonment was excessive. This was not considered by the superior court.
Having considered the history of this matter and taking into account the submissions of Mr. Gikandi together with what Mr. Ondari stated on behalf of the State we are satisfied that the two courts below did not apply the correct principles of sentencing in which case the appellant was entitled to challenge the legality of the sentence imposed on him (a young man aged 22 years who was a first offender). It is only in exceptional cases that a maximum sentence would be imposed on a first offender.
Dated and delivered at Mombasa this 21st day of January, 2011.
J. E. GICHERU
JUDGE OF APPEAL