[2001] KEHC 400 (KLR)
The court found that the complainant's evidence was credible and unshaken, and that the appellant gained entry into the complainant's house by deception and assaulted her. The evidence of the children, each supporting the parent with whom they resided, was not determinative. The trial magistrate was correct in...
Source-derived case information.
- Citation
- [2001] KEHC 400 (KLR)
- Parties
- Appellant: Harris Mjomba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 545 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Assault, Sentencing, Evidence of Single Witness, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harris Mjomba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for assault under Section 251 of the Penal Code was supported by the evidence.
- 2 Whether the sentence imposed was harsh and excessive and if the option of a fine should have been considered.
- 3 Whether the trial magistrate's judgment complied with the legal requirements under Section 169 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the complainant's evidence was credible and unshaken, and that the appellant gained entry into the complainant's house by deception and assaulted her. The evidence of the children, each supporting the parent with whom they resided, was not determinative. The trial magistrate was correct in relying on the complainant's testimony. The sentence of 18 months imprisonment was within the statutory limits under Section 251 of the Penal Code, which does not provide for an option of a fine. The trial magistrate's judgment complied with Section 169 of the Criminal Procedure Code. There was no basis to interfere with the conviction or sentence, and the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is hereby dismissed.
- The conviction and sentence are upheld.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 545 OF 2000
(Being an appeal from 0riginal conviction and sentence in Criminal Case
No. 528 of 2000 of the Senior Resident Magistrate Court at Voi – E. Maina)
HARRIS MJOMBA ………………...............................................................…… APPELLANT
V E R S U S
REPUBLIC ………………….......…...........................................................…… RESPONDENT
J U D G E M E N T
The appellant was convicted and sentenced for the offence of assault under Section 251 Penal Code. He was represented by counsel in this appeal.
The prosecution case is that the appellant is a husband of the complainant but they have separated. They have decided to share the custody of children. The son Jimmy Mwavula resides with the accused and a girl Mkamachi Martha resides with her mother the complainant.
On 28. 2.2000 when the complainant was in her house asleep, there was a knock at the door. She asked who it was and the voice sounded as of her son who resides with his father the accused. This evidence was confirmed by DWI that the son knocked because his father the accused asked him to knock. The accused was standing behind the son. He knew that if he knocked the complainant would not open for him. Under the said deception the accused gained entrance into the house of the complainant and set upon her assaulting her. She went to police station and was issued with P3 form which she took to the doctor the sameday. The medical report was produced indicating that the complainant had blood stained T shirt and had injuries in the chest, bruised elbows, swollen right foot, knees bruised and painful right foot.
These injuries are consistent with assault. Both prosecution and defence called as witness a child of the marriage on both sides. Each child gave evidence supporting the parent with whom she/he was residing. This evidence is not helpful. What the court has to consider is the evidence given by complainant and the defence.
Looking at the evidence l see that she was in her house sleeping at night. The appellant gained entrance into her house by a trick. This is not denied by the defence. The complaint went to report the matter in the morning the following day. I find that the complainant was telling the truth. Evidence of a single witness need not be corroborated if it is truthful and unshaken in crossexamination. That the Trial Magistrate found the child PW2 a competent witness does not prejudice the position of appellant. The child’s evidence was correctly taken.
There is complaint that the sentence was harsh and excessive and option of fine was not considered. Looking at Section 251 Penal Code l see the punishment is for imprisonment for a period of 5 years with or without corporal punishment. No option of fine is imposed. The punishment of 18 months imprisonment cannot be said to be excessive in the circumstances. Lastly there is a complaint that the Trial Magistrate did not write the judgment in form and manner required by law. I have read the trial magistrate’s judgment and the provisions Section 169 C.P.C.
I am satisfied that the judgment complies with the provisions required and that the appellant has not been prejudiced by the manner in which the judgment is written.
I, therefore find no reason to interfere with the conviction and the sentence. The appeal is hereby dismissed.
Dated at Mombasa this 6th Day of November, 2001.
J. KHAMINWA
COMMISSIONER OF ASSIZE