[2010] KEHC 2831 (KLR)
The court found that the prosecution evidence, including the P3 form completed four hours after the attack, conclusively established that the appellant attacked the complainant and caused actual bodily harm by biting his finger. The trial magistrate's conviction was therefore upheld. However, considering the...
Source-derived case information.
- Citation
- [2010] KEHC 2831 (KLR)
- Parties
- Appellant: Everlyne Kageha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 42 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction upheld; sentence varied.
- Legal Topics
- Assault Causing Actual Bodily Harm, Sentencing Principles, Evaluation of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Everlyne Kageha
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for assault causing actual bodily harm was supported by sufficient evidence.
- 2 Whether the sentence of 18 months imprisonment was excessive in the circumstances.
Ratio Decidendi
The court found that the prosecution evidence, including the P3 form completed four hours after the attack, conclusively established that the appellant attacked the complainant and caused actual bodily harm by biting his finger. The trial magistrate's conviction was therefore upheld. However, considering the appellant's lack of mitigation and the statutory maximum sentence of five years, the court determined that the sentence of 18 months imprisonment was excessive. Exercising its powers under section 354(3)(a)(iii) of the Criminal Procedure Code, the court substituted the custodial sentence with a fine of Kshs. 20,000, noting that the appellant was already out on cash bail of the same...
Court Disposition
Conviction upheld; sentence varied.
Orders
- Appeal against conviction dismissed.
- Sentence of 18 months imprisonment set aside and substituted with a fine of Kshs. 20,000.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Criminal Appeal 42 of 2008
EVERLYNE KAGEHA:………………………….......APPELLANT
VERSUS
REPUBLIC:……………………………………………RESPONDENT
JUDGMENT
EVERLYNE KAGEHAappeals against conviction and sentence.She was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code.After the evidence of six (6) prosecution witnesses she was convicted as her defence was not sufficient to warrant an acquittal.She was sentenced to serve a term of imprisonment of eighteen (18) months.She has filed six grounds of appeal and contends that the trial magistrate failed to properly evaluate the evidence for had he had done that he would have come to a different conclusion.That all the civilian prosecution witnesses were related by either marriage or employment and the possibility of collusion against the Appellant cannot be ruled out.She adds that even adduced evidence was contradictory and could not sustain a conviction.That even the Appellant was injured in the fight which her counsel describes as an affray and not assault.It was urged for her that even if the offence was proved, which it was denied that it was proved, then the sentence was excessive.
The appeal against conviction was opposed by the state who stated that there was sufficient evidence to convict.However on the sentence the state easily conceded that the same was harsh.
I have perused the prosecution evidence at trial.An evaluation and assessment of the same shows that the Appellant did indeed attack the complainant and bite his small left finger.The P3 form filled about 4 hours after the attack is conclusive evidence of injury sustained.I find therefore that the trial magistrate came to the right conclusion and I uphold the finding on conviction and dismiss the appeal against conviction.
The Appellant said nothing in mitigation and the trial court noted that she showed no remorse whatsoever and sentenced her as he did.The maximum sentence allowed by law for this offence is imprisonment for a term of five (5) years.She was released on bail pending appeal on 3rd July 2008. Section 254 (3) (a) (iii) Criminal Procedure Code empowers this court to alter the nature of sentence.In this appeal the Appellant is out on a cash bail of Kshs.20, 000/=.Sentence of 18 months in the present case is excessive.Accordingly this court empowered as above alters the sentence and substitutes the same with a fine of 20,000/=.
Orders accordingly.
DATED SIGNED AND DELIVERED AT ELDORET THIS 13TH DAY OF MAY 2010
P.M.MWILU
JUDGE
IN THE PRESENCE OF:-
Andrew Omwenga-Court Clerk
Nasimiyu-Advocate for Appellant
Kabaka-For the state.