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 of Hon. A.B. Mongare ESQ. Resident Magistrate delivered on 15th May 2009 at the Chief Magistrate’s Court at Eldoret in Eldoret CMCR. No. 2906 of 2009 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.
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3. On the 11th May 2006 the appeallant admitted the offence as read together with the facts of the case. She was convicted 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 11 th December 2009, the appeal was admitted for hearing (Mwilu J). The appeal was thereafter heard by Osiemo J but he was not 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). ii). iii). iv). 7. The Appeallant pleaded guilty to the offence. The Appeallant was tortured, blackmailed. The language used was not understood The sentence was harsh When the Appeallant made submissions she only mentioned that she 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 appeal SAVE as to the legality of the conviction and sentence. 10. In this appeal, the issue that was to be dealt with was that of torture and blackmail. No mention of this was made and as such, this Court has no indication as to how these grounds were made and relied on. 11. There being no basis as to conviction, the same is hereby dismissed.
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12. As to the sentence, the injuries sustained by the appeallant most certainly was Grievous. The Complainant lost a finger nail. She sustained 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) (ii) J.K. Chirchir, Senior State Counsel, instructed by the office of the Attorney General for the State Present Rose Iminza, Appeallant in person - Present
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