https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10846

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CASE NUMBER: HCCRA/E130/2024** **BRIAN OKARI MARITA……………………..……………..APPELLANT** **VERSUS** **THE REPUBLIC………………….…………………………RESPONDENT** **(*Being an appeal from the Conviction and Sentence in Criminal Case Number E1227 of 2024 by Hon. P. K Mutai, PM in the Principal Magistrate’s Court at Kisii*)** **JUDGMENT** **I. Introduction** 1. The Appellant herein **Brian Okari Marita** together with **Wedden Mariera Momanyi** were charged with the offence of grievous harm contrary to *section 234 of the Penal Code* asCount I. The particulars of the charge are that on **4th August 2024** at Mwamonari North Location in Marani Sub-County within Kisii County, jointly, willfully, and unlawfully did grievous harm to Maurice Ousuru Cornel. The Appellant’s co-acussed **Wedden Mariera Momanyi** was charged with an additional offence of possession of public stores contrary to *section 324 of the Penal Code* as count II. It is noteworthy, that the Appellant herein and the co accused who was the 2nd Accused at the trial court preferred separate appeals. 2. The Appellant on **27th August 2024** pleaded not guilty to the charge of grievous harm before the trial court, and a full hearing was conducted. The prosecution called Eight (8) witnesses in support of its case. At the conclusion of the Prosecution case, the court found that there was an established prima facie case against the Appellant and the co-accused and placed them on their defenses. The Appellant on the other hand testified under oath and did not call any witnesses. 3. At the close of the trial, the Appellant with his co-accused were convicted for the offence of grievous harm and sentenced to serve 30 years in prison. The co-accused was acquitted for the offence of possession of public stores. 4. Aggrieved with the Judgment, dated **19th December 2024,** the Appellant vide a petition of Appeal dated **24th December 2024** appealed against his conviction and sentence of the trial court and relied on the following grounds: - 1. *THAT the trial court erred in law by failing to observe that the offence of Grievous Harm was not proved beyond reasonable doubt.* 2. *THAT the trial magistrate erred in both law and facts by convicting the appellant despite the glaring contradictions thus making his conviction unsafe.* 3. *THAT the learned trial magistrate erred in both law and facts by convicting the appellant using a shady and shoddy investigation report thus making his conviction problematic.* 4. *THAT the sentence of 30 years was harsh and excessive considering the age of the Appellant since he was and he is a young man a future.* 5. *THAT the trial court ought to have known better that their aim was not only to achieve conviction but to guide the court to arrive at a fair verdict.* 6. *THAT the trial magistrate erred in both law and facts without withstanding that identification parade was not conducted in order to establish the really perpetrators to the complainant.* 7. *THAT the trial court failed to note that the appellant was not represented by a lawyer thus violating the appellant’s rights to fair trial as enshrined in article 50 of the constitution.* 8. *THAT the appellant wishes to be served* *with the trial court records to enable him erect more grounds* 5. The Appellant prayed that the appeal in its entirety be allowed, the conviction quashed, the sentence of 30 years be set aside, reviewed and/or varied**.** 6. On **21st May 2026,** Parties took directions on disposal of the appeal, parties agreed to have the appeal canvassed by way of written submissions, the Appellant confirmed that he had filed and served his written submissions dated **19th February 2026** and Respondent equally confirmed filing and service of its written submissions dated **25th February 2026.** 7. This being a first appellate court, it has a duty to scrutinize and evaluate the evidence afresh, while cautioned enough, that it did not have the advantage of seeing or hearing the witnesses testify during trial, whilst giving due allowance for the trial court’s findings. This is well set out in decision of the Court of Appeal for Eastern Africa in ***Pandya vs Republic [1957] EA 336*** as follows: ***“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanour which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”*** **Prosecution Case** 1. The prosecution called eight witnesses in support of its case **PW1 Brian Otieno Onyango** testified that on **4th August 2024** while loading avocados and drinking at a nearby den he met the 1st Accused person, the 2nd Accused person and Bworongi, it is his testimony that the 1st Accused person asked Bon why he had hit him with a panga, leading to a fight. Wedden and Wicky then rushed towards the police station and attacked him. He later saw Wedden attacking the OCS with a stick, who was later rescued by fellow officers. The 2nd Accused person also appeared and hit the OCS and took his torch. The incident occurred at around 11:00pm, and there was electric lighting at the scene. 2. **PW2 – Joseph Ogoti** testified that on the fateful day he was called to load avocado and met 1st & 2nd Accused persons along the way. The 1st Accused person was armed with a panga and hit Wicky, who was a pillion passenger on a motorcycle who later escaped towards the police station. The accused persons came back with a stick and hit him, he fled towards the police station; He states that he saw the 1st Accused person attacking the OCS who was later joined by the Appellant who hit the OCS on the ground and collected his torch. He also identified Vanice who was shouting and calling for help during the attack. 3. On her part **PW3 Divinah Nyanchera** alias **Vanice** recalled that on **4th August 2024** at around 11:30pm she saw some young men seemingly fighting and fleeing. The 1st Accused reappeared from banana plantation and attacked the OCS, hitting him with a stick repeatedly. The 1st Accused person asked the Appellant to clear him, and he shouted and called out his name Brian. She shouted for help and officers came and rescued the OCS. The 1st Accused was the first to attack the OCS. She knew them and could identify them as the accused persons had worked for her, and there was electric lamplight enabling her to see clearly. 4. The Rescuing officer**, PW4 PC Dancun Kaunda** testified that on **4th August 2024** at 11:30pm, while on patrol he heard shouts by PW3 that the OCS was under attack. He and Corporal Nyagaka rushed to the scene and found the OCS under attack while the accused persons still holding him. Upon seeing them they fled to a nearby Banana Plantation, they were not able to apprehend them. He testified that they took the OCS to Marani Hospital, Kisii Level Six and Christianne Marianne then later referred to Eldoret, where he was admitted with head and hand injuries. He stayed with him until he was handed over to his family. He gave evidence that Wedden and Brian, the accused persons attacked the OCS, and there was electric lighting at the scene 5. **PW5 the Complainant Chief Inspector Maurice Cornel Ousure** OCS Rioma Police Station testified that on his way home he opted to pass by and see Divinah alias Vanice. He was walking along the footpath when two men approached whilst chasing each other. The 1st Accused person who had a stick raised it and aimed at his head he shielded it with his left hand. He sustained a fracture and head injuries as a result of the subsequent beatings. He fell down and the 1st Accused sat on his belly. In his testimony he confirmed that the 2nd Accused hit his head with a stick. He lost his consciousness and he identified the Accused Persons PW3, PW4 & PW6. His belongings were intact wherein he gave it to PW4 & PW5. Further he confirmed the incident and the presence of electric lighting at the scene. His discharge summary, clinical card, P3 form, and photograph were produced identified and produced as exhibits. 6. **PW6 Corporal Kennedy Nyagaka** equally testified that on **4th August 2024**, after patrol they were heading home when he heard Vanice shouting and calling for help. They rushed towards the direction Divinah alias Vanice was. On arrival he saw the accused persons, who fled towards a Banana plantation. He found the Complainant bleeding from his head holding his torch, gun and phone. He took the belongings and rushed for the Land cruiser wherein he took the complainant to Marani Hospital, Kisii Level Six and Christianne Marianne then later referred to Eldoret. He confirms that he was able to identify the accused persons who had a stick and there was an electric lamp illuminating the scene. 7. **PW7 Moses Kaembu** who is a Clinical Officer at Marani Sub-County Hospital **t**estified that the patient Maurice Onsuru Cornel was brought in on **4th August 2024** with a fracture of the left upper limb and head injuries. There was no scanner available, so he was stabilized and referred to Kisii Teaching and Referral Hospital for a CT scan, then later transferred to Eldoret due to the need for urgent care. He produced the P3 form, clinical attendance card, and discharge summary as exhibits. 8. **Lastly, PW8 – PC David Kamau** recalled that on **4th August 2024** at 23:30 hours, he was at Rioma Police station when he heard noise from the avocado loading zone and met PC Kaunda and Corporal Omari, who informed him that the OCS was attacked by the accused persons. He took minutes of the case and looked for the suspects, but could not find them. He recorded statements from witnesses and proceeded to arrest the 1st accused at his house. Later upon a search he recovered two jungle trousers, a full military uniform, a navy blue police blouse with four buttons, the Inventory was signed by his father as witness. He also produced photographs taken at the hospital and certificate as exhibits. He testified that the accused persons used a jembe handle to attack the complainant. **Defense Case** 1. Upon the prosecution closing its case, and the trial court upon considering the evidence given by the prosecution witness and exhibits produced, the trial court found that the prosecution had established a *prima facie* case. Each of the accused were placed on defence and *Section 211 of the Criminal Procedure Code* read and explained to them wherein they each responded that they have no claims. The exhibits of police uniforms were released to the investigation officer. 2. The 1st Accused person **DW1 Wedden Mariera Momanyi**, testified under oath and stated that on **4th August 2024** he woke up, washed his clothes and proceeded with his daily work of selling eggs. Later in the day he retreated home, prepared supper and slept. On the following day he passed by a Changaa den, he was suffering from typhoid and upon just paying Kshs 100, he was ambushed by police officers who arrested and detained him. He testified that both the charges were false allegations. 3. **DW2 Brian Marita,** a business person from Kegogi who operates a barber shop, he testifies that he was not at the scene. He was only arrested on **5th August 2024** while at his shop renewing his licence. He was not informed the reason for his arrest. He was later detained and charged. He testifies that he does not know the Complainant or Divinah neither was he involved in the attack. The allegations are just implications. At the close of defendant’s case the matter was reserved for judgement. 4. The learned trial Court in its decision found that all the ingredients necessary to prove the offence of grievous harm had been satisfied, pointing out that the fact and injuries including left parietal occipital depressed skull fracture, fracture metacarpals III, IV (Left Hand) and compound fracture of left forearm sustained was not disputed; and was adequately confirmed by the fact that the complainant was treated at several hospitals. That from the medical reports tendered, the Complainant suffered life threatening injuries; On identification of the accused persons the trial court observed that both the accused persons were positively identified by the Complainant. The evidence of the Complainant was corroborated PW1, PW2 and PW3 who placed the accused persons at the scene. The identification was not shaken on cross examination. The accused persons were well known to the witnesses and the Electric lights assisted in the identification, thus positively identified. 5. The learned trial court paid due regard to the *alibi* defence raised, acknowledging that once an accused person raises an *alibi,* such a defence must be raised at the earliest opportunity possible, at the latest, during cross examination of the witnesses and fortified at the defence. The learned trial court stated thus failure to raise the alibi at an earliest opportunity amounted to an afterthought, thus dismissed the defence. 6. On Count II, on the offence of found with Public stores, the allegation and the search and the discovery of Police uniforms and military fatigues. The court observed that at the time of the search the 1st accused person was already in custody. The entirety of the evidence and the search was not corroborated, thus not proved, as such the 1st accused person was acquitted under ***Section 215 Criminal Procedure Code.*** 7. Before meting out the sentence, the trial court was informed that the Appellant was the bread winner, first born in the family and only with one old parent, thus praying for leniency. Acknowledging this plea in mitigation and the trial court noting that the Appellant had been in prison custody throughout the trial, the learned magistrate nonetheless pointed out that the offence was serious and prevalent at Marani area, thus a determined sentence, hence the 30 years’ imprisonment. 8. Before delving into the crux of the Appeal, this court notes that the Appellant on his last ground of appeal sought to be served with the trial court proceedings to enable him erect more grounds of appeal. I note that the Appellant was served the record of appeal on **17th February 2026**. The Appellant subsequently didn’t seek leave under ***section 350 (v) or the CPC*** or raised any other grounds, as such the ground is moot. **Analysis and Determination** 1. I have read the respective parties’ submissions, given due consideration to the trial court’s proceedings, the Petition of Appeal dated **24th December, 2024**, the Appellant’s written submissions dated **19th February 2026** and the Respondent’s written submissions filed on **25th February 2026.** The following issues arise for my determination: - 2. Whether the Prosecution proved its case beyond reasonable doubt. 3. Whether the Accused had a plausible defence which cast doubt on the Prosecution case. 4. Whether the Appellant was accorded a fair trial. 5. Whether the sentence was harsh and excessive. **Whether the Prosecution proved its case beyond reasonable doubt.** 1. *Section 234 of the Penal Code* provides for the offence of grievous harm as follows: - ***Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.*** 1. Further Section 4 of the Penal Code defines grievous harm as follows: - ***“grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;*** 1. It is the Appellant’s submissions that the 8 prosecution witnesses’ testimonies were not "trustworthy" enough to sustain a 30-year sentence. The appellant pinpoints witness-by-witness contradiction analysis in his submissions. In support of this contention he places reliance on ***Philip Muiruri Ndaruga v Republic [2016] KEHC 4252 (KLR)*** for the proposition that benefit of doubt is a matter of right, not grace and concession. 2. On the other hand, the Respondent in its submissions thematically addresses grounds 1,2,3,5 and 6 as to whether the prosecution proved its case beyond reasonable doubt. On identification of the Appellant, the Respondent relies on PW1–PW6 testimony that all knew the Appellant beforehand and the scene was well lit by erected security lights, thus identification by recognition, said to be inherently more reliable than identification by strangers through an identification parade. On harm and injuries sustained, the Respondent relies on PW5's evidence of the attack and unconsciousness, the P3 form, PW7's evidence of a fractured left upper limb and head injury requiring a CT scan, and photographic exhibits 3(a)–(c). The Respondent submits that all elements were proved beyond the reasonable doubts and any inconsistences does not negate that fact. 3. This court will then address itself on what amounts to an offence of grievous harm, the elements to prove were echoed in ***Pius Mutua Mbuvi vs Republic (2021) eKLR***, where he held that for the Appellant to be convicted of the offence, the prosecution had to prove each of the following essential ingredients beyond reasonable doubt; 4. The victim sustained grievous harm. 5. The harm was caused unlawfully. 6. The accused caused or participated in causing the grievous harm……….” 7. On the essential ingredients, and as to whether the Complainant sustained grievous harm. The Complainant testified before the trial court he produced and identified his discharge summary, clinical card, P3 form, and photographs. The scar was shown to the court which was equally noted. The Appellant did not dispute or rebut the said testimony. It is the Appellant’s assertion that no evidence was produced to show a CT scan was undertaken, no additional medical records from Reel Hospital Eldoret and the Filter clinic attendance card was altered to correctly read Maurice Cornell from Maxwels Oruru. 8. The Court of appeal in ***John Oketch Abongo vs Republic (2000) eKLR***, held that: - ***“Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.”*** 1. From the foregoing case, the trial court ought to be guided by *Section 4 of the Penal code* and assisted by the medical evidence provided to arrive at a finding on the nature of harm. PW7 Moses Keumbu a medical officer at Marani Sub County Hospital testified that he examined the Plaintiff who had sustained serious head injuries and incoherent at the time. He further testified that the nature of the harm was grievous harm as captured by the P3 form and medical reports. Upon being cross examined on the inconsistences of names, he testified that the complainant was incoherent at the time and wrong names may have been entered by relatives and well-wishers, he further states that the same was corrected and his names were well captured in the P3 form. 2. In his submission the Appellant pointed out inconsistencies between the treatment notes and the P3 Form, this is a matter of interrogation which was brought out during the trial. Nonetheless upon the explanations given I am of the considered view that the discrepancies were immaterial. This court is guided by ***Section 382 of the Criminal Procedure Code*** which provides that no finding shall be reversed on account of an error or irregularity unless it has occasioned a failure of justice. In ***Joseph Maina Mwangi v Republic [2000] eKLR,*** the Court held that discrepancies must be fundamental to create doubt as to the guilt or otherwise of the accused. 3. I have looked at and considered the Discharged Summary Form *(P.Exh 1),* Filter Clinic Attendance, *(P.Exh 2),* P3 Form *(P.Exh 3),* the Photographs exhibit and trial court notes wherein it noted a scar on PW5’s head. I have found that its contents mirror the testimony of PW5 and PW7. It is my finding that going by the nature of the injuries (and injuries including left parietal occipital depressed skull fracture, fracture metacarpals III, IV (Left hand) and compound fracture of left forearm) that the injuries amounted to grievous harm. There was evidence that the injuries were permanent in nature, caused permanent disability or dangerous harm. The trial court rightly held and classified so. 4. The second element is whether the harm was unlawful. This means that the permanent injury was caused with any lawful justification or excuse. From the evidence on record, the accused’s persons were on an attacking spree as testified by PW1, PW2 and PW3, they had all the intentions to beat and attack anyone they meet or sight. The motive was well known to the accused, but the intentions were clearly to harm. That is indeed unlawful. **As to whether the accused caused or participated in causing the grievous harm?** 1. The Appellant foremost challenges his participation, that he was not even at the scene of crime. He wholesomely submits that the identification was not proper and that there were contradictions. He cites that PW5 admission that he learned the appellant's identity from public, not direct observation and PW6's admission he never saw the attack implicitly challenging to the reliability of recognition evidence relied on in place of a formal parade. 2. The Respondent addresses this issue by submitting that the identification by recognition was proper and all Prosecution Witnesses knew the Appellant beforehand, it was a well-lit scene, which is more reliable than identification of a stranger and therefore made an identification parade was unnecessary, Reliance was placed on the decision of ***Peter Okee Omukaga & Another v Republic [2011] KECA 332 (KLR).*** 3. The court is thus faced by one question, whether the trial court erred by finding that the Appellant and the co accused participated in causing the grievous harm and they were positively identified through recognition. The trial court observed that both the accused persons were positively identified by the Complainant, which was corroborated PW1, PW2 and PW3 who placed the accused persons at the scene. The identification was not shaken on cross examination or dislodged by the defence. The scene was well lit through an erected electric lamp. And the identification by recognition was more reassuring. 4. It is well settled that evidence of identification or recognition at night must be absolutely watertight to justify a conviction. In ***Wamunga v Republic [1989] KLR 426****,* the Court of Appeal stated: ***“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”*** 1. That being said, this court is well guided that there can be a safe recognition even at night as held by the Court of Appeal in ***Douglas Muthanwa Ntoribi v Republic [2014] eKLR*** that: ***“The learned Judge further noted that the complainant testified that he used to see the appellant in town. It is our considered view that from the evidence on record, the identification of the appellant based on recognition was free from error.”*** 1. Further in ***Peter Okee Omukaga & Another v Republic [2011] eKLR*** the Court of Appeal stated on the evidence of recognition at night: ***“We have re-examined the evidence upon which that conclusion was made, and we find that it was well founded. We have no doubt whatsoever that Francis, John and Rose were familiar with the appellants; that Francis and John had known them by appearance as ‘neighbours’ from the village’, that they had played football with them long time ago, and that their voices were so familiar to them. Accordingly, we have no reason to disturb that finding and we dismiss that ground of Appeal. We also reject the argument that failure to hold an identification parade, and the non- recovery of the stolen articles made conviction unsafe. As this was a case of identification by recognition, an identification parade was unnecessary. The non-recovery of the stolen items did not in any way point to the innocence of the appellants.”*** 1. Now this courts bears in mind that the offence took place on **4th August 2024** on/or about **11:30 pm at night**. Notably there is overwhelming evidence which was not seriously controverted the Appellant, that he is well known to the witnesses who gave evidence. **In particular, PW 1, PW 2 and PW 3** were workmates at Avocado loading zone at Rioma. It is also clear and consistent that there was an erected electric light at the scene, which lit the place. 2. There is also evidence that Appellant and the co accused were on an attacking spree that night, attacking people with sticks and pangas. Witness PW1, PW2, PW3, PW4, PW5 & PW6 identified the accused persons at the scene and armed with a stick, resultantly attacking and injuring PW5. There was also consistency in the description of the Appellant. The Appellant only denied his involvement and did not account of his whereabouts. 3. This Court has re-examined the evidence upon which that conclusion was made, and I find that it was well founded. I have no doubt whatsoever that PW1, PW2 and PW3 were familiar with the Appellant, indeed it was PW3 who was at the scene and she identified the appellant for reason that he once worked for her and is also married to the 1st Accused’s sister. ## Having established that PW5 had suffered actual bodily harm which was unlawful and the positive identification of the Appellant as the perpetrator, it is this court’s finding that the Prosecution proved its case against the Appellant beyond reasonable doubt. ## **Whether the Accused had a plausible defence which cast doubt on the prosecution case.** ## I have considered the Appellant’s defence in which he denied committing the offence. He stated that on the following day he was at his barber shop preparing to renew his license. He states that he doesn’t know anyone and that he stays at Kegogi shopping center and his home is in Rioma to the farm and chased the boys away bit did not harm anyone. 1. It is the court considered view that the Appellant’s defence was a mere denial and did not displace the victim’s (PW5) and the eye witnesses’ (PW1, PW2, PW3, PW4 and PW6) testimonies. As such it did not displace nor rebut the cogent and consistent evidence adduced by the prosecution. The Appellant’s defence therefore does not case any doubt to the prosecution’s case. **Whether the Appellant was accorded a fair trial.** 1. On this ground, the Appellant anchors his submissions on the language used at trial court during plea and subsequent proceedings. It his submission that the trial court record does not indicate whether English or Kiswahili was used, or whether the charges were explained to the Appellant in a language he understood, contrary to *section 89 & 198(2) Criminal Procedure Code*. He places his reliance on ***AMO v Rep Criminal Appeal No. 44 of 2018 eKLR*** and ***Swahibu Simiyu & Another v Rep, Kisumu Criminal Appeal No. 243 of 2005.*** 2. Further, he asserts that he was not represented by a lawyer, for the said reasons his rights under ***Article 50*** were violated. The Respondent in response cites ***R v Chengo & 2 Others (Petition No. 5 of 2015)*** and ***Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827*** and submits that no substantial injustice arose since the appellant fully participated in the trial, cross-examined all prosecution witnesses, and conducted his own defence. 3. On the right to counsel, ***Article 50(2)(j)*** of the ***Constitution*** provides that the Court shall appoint an Advocate for an accused person if in the opinion of the court a substantial injustice would occurred in absence of representation. The Supreme Court in ***R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR*** held that the right is not an absolute right only in exceptional cases where a substantial injustice would result***.*** 4. A careful review of the record shows that at plea, the charges were read over to the Appellant and explained in Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The Appellant comprehensively cross examined all the witnesses. Alike, when called upon to give his defence, the record shows that he lodged a defence without any difficulty or language barrier. Clearly the Appellant actively participated during and he was not prejudiced by any language barrier as held by the High Court in ***Simon Wambua Mukewa v Republic [2016] eKLR.)*** 5. This Court therefore finds no basis of the assertion that the Appellant’s right to a fair trial were violated. **Whether the sentence was harsh and excessive.** 1. Sentencing is a judicious discretion of the trial court guided by the evidence and sound legal principles. An appellate court will only interfere with the sentence if it is illegal and manifestly excessive. These principles were enunciated by the Court of Appeal in the case of ***Ogolla s/o Owuor vs. Republic*, *(1954) EACA 270*,** pronounced itself on this issue as follows: - ***“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”*** 1. *Section 234* provides that any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life. The Appellant herein was convicted to a 30 years sentence after the court took into consideration of the time served in custody. The court while rendering the sentence took note of the prevalent violent activities within the area, but that it was lenient enough to prefer a 30-year sentence. 2. The *Sentencing Policy Guidelines 2023* outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender. 3. I have considered the circumstances of the case, the nature of injuries occasioned to the complainant, coupled with the fact that the complainant was lawfully discharging his official duties at the time of the assault, which are all aggravating circumstances that call for a substantial custodial sentence. The Court must also bear in mind the need to deter unlawful violence against persons engaged in the maintenance of law and order and to uphold public confidence in the administration of justice. 4. Nevertheless, the existence of a maximum sentence does not mean that the maximum or a near-maximum sentence should ordinarily be imposed. The sentence must remain individualized and proportionate, taking into account the gravity of the offence, the manner in which it was committed, the extent of the injuries occasioned, the offender’s personal circumstances, and the objectives of sentencing. 5. Having carefully weighed all the aggravating factors and mitigating circumstances appearing on the record, I am persuaded that the custodial sentence of **thirty (30) years’ imprisonment**, though lawful, was manifestly excessive in the circumstances of this case. While the offence deserved a stern custodial sentence, the trial court imposed a sentence that, in my respectful view, exceeded what was necessary to achieve the objectives of punishment, deterrence, denunciation, rehabilitation and protection of the public. A sentence of **fifteen (15) years’ imprisonment** adequately reflects the gravity of the offence, the serious injuries sustained by the complainant and the need for deterrence, while at the same time maintaining the principle of proportionality in sentencing. **Disposition** 1. The appeal against conviction is devoid of merit and is hereby dismissed. The conviction for the offence of grievous harm contrary to section 234 of the Penal Code is affirmed. 2. The appeal against sentence succeeds to the extent only that the sentence is varied. The sentence of **thirty (30) years’ imprisonment** imposed by the trial court is hereby set aside and substituted with a sentence of **fifteen (15) years’ imprisonment** commencing from the date of arrest. **JUDGMENT DELIEVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 16TH DAY OF JULY 2026** **ANNE M. OKUTOYI** **JUDGE** Judgment delivered in the presence of: **Mr. Koima for the State** **Brian Okari Marita-Appellant in person from Kisii Main Prison** **Ruth Mokeira-Court Assistant**