Isaac v Republic (Criminal Appeal E025 of 2025) [2026] KEHC 13114 (KLR) (17 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CRIMINAL APPEAL NO. E025 OF 2025** **D.K. RONO, J** **17 JULY 2026** **BETWEEN** **JAPHET MUROKI ISAAC.......................................................................APPELLANT** **VERSUS** **REPUBLIC............................................................................................RESPONDENT** ***(Being an appeal from the conviction and sentence of Hon. F. Kombo (Chief Magistrate) delivered on 30th April 2025 in Maua CM Criminal Case No. E520 of 2020****)* **JUDGMENT** 1. The Appellant, Japhet Muroki Isaac, was arraigned before the Chief Magistrate's Court at Maua and charged with the offence of Causing Grievous Harm contrary to section 234 of the Penal Code. The particulars of the charge were that on 14th September 2020 at Akirang'ondu Location in Igembe Central Sub-County within Meru County, he unlawfully caused grievous harm to Daniel Karuti. 2. The Appellant denied the charge. The matter proceeded to a full trial before two judicial officers after the first trial magistrate was transferred. Upon hearing five prosecution witnesses and three defence witnesses, the learned Chief Magistrate found that the prosecution had proved the charge beyond reasonable doubt, convicted the Appellant under section 215 of the Criminal Procedure Code and sentenced him to imprisonment. 3. Being dissatisfied with both conviction and sentence, the Appellant lodged the present appeal raising thirteen grounds, the substance of which may be condensed as follows 4. that the conviction was founded on the evidence of interested family members; 5. that the prosecution evidence was fabricated and the case was a frame-up arising from a family dispute; 6. that the learned trial magistrate failed to appreciate that the complainant may have sustained the injury in some other manner; 7. that investigations were inadequate and the prosecution failed to prove its case beyond reasonable doubt; 8. that the trial court failed to consider the Appellant's defence and improperly rejected his alibi; 9. that the learned magistrate declined to admit defence witnesses and thereby violated his constitutional right to a fair trial; 10. that the sentence imposed was harsh and excessive. 11. Although thirteen grounds are set out in the petition, they substantially revolve around two broad questions, namely whether the conviction was safe and whether the sentence warrants interference by this Court. 12. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. 13. The principles governing a first appeal have long been settled. In **Okeno v Republic [1972] EA 32**, the predecessor of the Court of Appeal stated that a first appellate court is obliged to subject the entire evidence to fresh and exhaustive scrutiny and draw its own conclusions, remembering that the trial court had the advantage of seeing and hearing the witnesses. Similar principles were articulated in **Pandya v Republic [1957] EA 336**, **Shantilal M. Ruwala v Republic [1957] EA 570**, and more recently reaffirmed by the Court of Appeal in **Kiilu & Another v Republic [2005] 1 KLR 174**. 14. The appellate court therefore does not merely examine whether there was some evidence upon which the trial court could have acted. Rather, it must independently evaluate the whole record, weigh conflicting evidence, determine whether the essential ingredients of the offence were proved beyond reasonable doubt and satisfy itself that the conviction was safe. 15. While an appellate court pays deference to findings of fact founded on the credibility of witnesses, it is not bound by such findings where they are unsupported by the evidence, founded upon a misapprehension of the evidence, or where the trial court demonstrably acted on wrong principles. 16. It is against those principles that the evidence adduced before the trial court falls for reconsideration. 17. The Prosecution called a total of five witnesses. The complainant, **Daniel Karuti (PW1)**, testified that on the material day he was asleep in his house when he heard one of his children screaming. Upon rushing outside to establish what had happened, he found the Appellant, who was his neighbour, assaulting his daughter. According to PW1, the Appellant suddenly attacked him with a machete and cut one of his fingers. He stated that he was rescued by neighbours and rushed first to Pemba Medicare Health Facility before being referred to Meru for specialized treatment. He subsequently produced treatment notes and a duly completed P3 Form. 18. **Loise Kiende (PW3)**, the complainant's daughter, corroborated that account. She testified that the Appellant came to their home requesting a matchbox to light a cigarette. As she proceeded to the kitchen, the Appellant followed her and grabbed her by the neck. She screamed, attracting her father, who came outside. The Appellant then attacked her father with a machete and chopped off one of his fingers. She further testified that on an earlier occasion the Appellant had attempted to give her money, which she declined. 19. **Shadrack Mbithi (PW4)**, a neighbour, testified that upon hearing screams from the complainant's homestead, he rushed there and found that the Appellant had cut the complainant's finger (PW1). He assisted in taking the complainant to hospital. He knew both the complainant and the Appellant as neighbours and had no apparent interest in the dispute. 20. **Gerald Mutuma (PW2)**, a Clinical Officer at Meru County Hospital, testified that he examined the complainant and observed that one finger had been amputated with a wound extending towards the hand. In his opinion, the injuries had been inflicted by a sharp object and amounted to grievous harm. He produced the P3 Form and treatment notes in evidence. 21. **Police Constable Shadrack Munyika (PW5)**, the investigating officer, testified that a complaint was made on 15th September 2020. He recorded witness statements, visited the scene, issued the complainant with a P3 Form and, after investigations, recommended that the Appellant be charged. 22. At the close of the prosecution’s case the Appellant was placed on his defence, he elected to give sworn testimony. He denied committing the offence and stated that at the material time he was working in Lodwar, Turkana County. He maintained that he only learnt of the incident while away and that upon returning home to attend a meeting convened by elders over an alleged land dispute, he was arrested and falsely implicated. 23. The Appellant called two witnesses; **Patrick Kaberia (DW2)** testified that he heard people discussing the incident the following day and thereafter went to inquire from the Appellant's wife, who allegedly informed him that the Appellant was still in Lodwar; upon being cross-examined, he candidly admitted that he neither witnessed the assault nor could he guarantee that the Appellant was not at the scene. 24. The Appellant’s second witness was **John Kitonga (DW3)** who testified that he learnt from other people that the complainant had been assaulted. He further stated that he contacted the Appellant's wife, who confirmed that the Appellant was in Lodwar. During cross-examination, however, inconsistencies emerged regarding how he had allegedly communicated with the Appellant and whether he possessed the Appellant's telephone number. 25. After reviewing the evidence, the learned trial magistrate rejected the alibi as an afterthought, found the prosecution witnesses truthful and consistent, and convicted the Appellant. **Issues for Determination** 1. Having considered the petition of appeal, the evidence on record and the judgment of the trial court, the following issues arise for determination; 2. Whether the prosecution proved beyond reasonable doubt that the complainant was attacked by the Appellant, causing him grievous injury. 3. Whether the Appellant was positively recognised as the person who inflicted the injuries. 4. Whether the alibi defence and the other complaints raised by the Appellant created a reasonable doubt as to his guilt. 5. Whether the sentence imposed calls for interference by this Court. 6. *Whether the prosecution proved the offence of grievous harm beyond reasonable doubt* 7. The Appellant was convicted of the offence of causing grievous harm contrary to section 234 of the Penal Code. Section 234 provides: *"Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life."* 1. The expression "grievous harm" is defined under section 4 of the Penal Code to mean "*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 permanent injury to any external or internal organ, membrane or sense."* 1. Accordingly, for the offence to be proved, the prosecution was required to establish beyond reasonable doubt that; 2. the complainant sustained injuries amounting to grievous harm; 3. those injuries were unlawfully inflicted; and 4. it was the Appellant who inflicted those injuries. 5. The burden of proving every element of a criminal charge rests throughout upon the prosecution and never shifts to the accused person. That principle is a cardinal feature of criminal justice and finds expression in Article 50(2)(a) of the Constitution as well as the celebrated decision in **Woolmington v DPP [1935] AC 462**, where Viscount Sankey famously described the burden resting on the prosecution as the "golden thread" running throughout the criminal law. 6. The prosecution must therefore establish the guilt of an accused person beyond reasonable doubt. As was stated by the Court of Appeal in **Miller v Minister of Pensions [1947] 2 All ER 372,** proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. It simply means such proof as leaves the court with no reasonable doubt as to the accused's guilt. 7. PW1 testified that one of his fingers was chopped off during the attack. His evidence was corroborated by PW4, who arrived immediately after hearing screams and found the complainant with the severed finger. The nature of the injuries was confirmed by the medical evidence tendered. 8. PW2, the Clinical Officer, testified that upon examining the complainant, he found that the complainant had sustained an amputated finger with the injury extending towards the hand. He formed the opinion that the injuries had been inflicted by a sharp object and assessed the degree of injury as grievous harm. He produced both the treatment notes and the P3 Form. Medical evidence is ordinarily the best evidence for proving the nature and extent of bodily injuries. The evidence of PW2 was neither challenged nor contradicted by any expert evidence from the defence. 9. The Appellant did not dispute that the complainant lost his finger. He stated that the complainant could have injured himself; having perused and re-evaluated the totality of the evidence, there was no evidential foundation for the suggestion that the complainant accidentally severed his own finger. It remained a mere hypothesis unsupported by any witness or objective evidence. 10. This court is of the view that criminal cases are determined upon evidence and not conjecture or speculation. The Court of Appeal in **Sawe v Republic [2003] KLR 364,** observed that suspicion, however strong, cannot form the basis of a criminal conviction; it is also true that speculative theories unsupported by evidence cannot create reasonable doubt. 11. The medical evidence also materially undermines the Appellant's theory. PW2 concluded that the injury sustained by the complainant was caused by a sharp object; That conclusion was entirely consistent with the prosecution evidence that the Appellant attacked the complainant using a machete. 12. Having independently reviewed the medical evidence together with the testimony of PW1, PW2 and PW4, I am satisfied that the prosecution conclusively proved that the complainant suffered injuries amounting to grievous harm within the meaning of section 4 of the Penal Code. The first ingredient of the offence was therefore established and proven beyond reasonable doubt. 13. *Whether the Appellant was positively recognised as the assailant* 14. The principal question in this appeal is whether the prosecution proved that it was the Appellant who inflicted grievous injuries upon the complainant. The Appellant contends that the trial court improperly relied upon the evidence of family members and that the case was fabricated. 15. The law relating to visual identification and recognition has been developed through a long line of decisions of the Court of Appeal. In **Wamunga v Republic [1989] KLR 424,** the Court warned that evidence of visual identification may occasion miscarriages of justice and that courts must examine such evidence with the greatest care, particularly where conditions favouring identification were difficult. 16. Similarly, in **Maitanyi v Republic [1986] KLR 198,** the Court held that before acting upon visual identification, the court must carefully examine the prevailing circumstances including lighting, distance, duration of observation and whether the witness had seen the accused before. 17. Recognition is generally more reliable than identification because it is based upon previous acquaintance. In the decision of **Anjononi & Others v Republic [1980] KLR** 59, the Court of Appeal observed: "Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another." 18. The evidence before the trial court unmistakably established that the Appellant was not a stranger to any of the principal prosecution witnesses. The prosecution evidence on identification was founded on recognition by persons who were familiar with the Appellant. 19. PW1 expressly testified that the Appellant was his neighbour, while PW3 and PW4 similarly confirmed that they had known him before the incident. Significantly, during cross-examination, the Appellant himself admitted that PW1 was his neighbour and further conceded that he had no grudge against PW3. That admission weakened the suggestion that PW3 had any motive to falsely implicate him. 20. The trial court was therefore entitled to place considerable reliance on the evidence of recognition, subject to an assessment of the credibility of the witnesses. Having independently re-evaluated the record, I find no basis to fault the trial court’s conclusion. 21. PW1 gave a consistent and detailed account of the attack. PW3 corroborated the circumstances leading to the assault, explaining that the Appellant first confronted her before attacking her father when he intervened. PW4, an independent neighbour, further corroborated their evidence by confirming that, upon responding to screams, he found that it was the Appellant who had assaulted the complainant. 22. The evidence of PW4 was particularly significant because, unlike PW1 and PW3, he was not a member of the complainant’s family and had no demonstrated interest in the dispute. His testimony provided independent corroboration of the prosecution case regarding the identity of the assailant. 23. The Appellant’s contention that the conviction was based solely on the evidence of family members is therefore unsupported by the record. The investigating officer and the Clinical Officer also gave independent evidence that was consistent with the complainant’s account. 24. In any event, the law is settled that evidence is to be weighed and not counted, and Section 143 of the Evidence Act makes it clear that no particular number of witnesses is required to prove a fact. The issue is not the number of witnesses called, but the credibility and cogency of the evidence presented. In the circumstances, the evidence of recognition was reliable and sufficient to sustain the conviction. 25. The Court of Appeal has consistently held that the evidence of relatives is not to be rejected merely because of their relationship with the complainant. What the court must determine is whether such evidence is truthful and credible. In **Joseph Kiptum** **Keter v Republic [2007] 1 EA 135**, the Court of Appeal held that the evidence of related witnesses is admissible and may properly found a conviction if the court is satisfied as to its truthfulness. In the present appeal, no evidence was produced demonstrating that PW3 harboured any animosity towards the Appellant. On the contrary, the Appellant himself admitted that no disagreement existed between them. 26. Although the Appellant alleged a land dispute with the complainant, no evidence was produced showing that such dispute existed or that it provided a motive for falsely accusing him of so serious an offence. A mere allegation of a frame-up does not amount to proof. As was observed in **Ndungu Kimanyi v Republic [1979] KLR 282,** the credibility of witnesses depends upon the consistency of their testimony when considered alongside the whole of the evidence. 27. Having carefully examined the testimonies of PW1, PW3 and PW4, I find them substantially consistent on the central issue that it was the Appellant who attacked the complainant with a machete. The medical findings further reinforced their evidence. I therefore agree with the learned trial magistrate that the prosecution adduced cogent and credible evidence of recognition which safely identified the Appellant as the perpetrator of the offence. 28. *Whether the discrepancies in the prosecution evidence created reasonable doubt* 29. The Appellant further contended that the prosecution evidence was contradictory, particularly regarding the time of the attack. PW1 testified that the incident occurred at about 4.00 a.m., whereas PW3 referred to 4.00 p.m., and the charge sheet similarly indicated about 1600 hours. The issue is whether that inconsistency was of such a material nature as to render the conviction unsafe. 30. The law is settled that not every inconsistency in the prosecution evidence is fatal; minor discrepancies are inevitable, particularly where witnesses recount traumatic events long after they occurred, and only material contradictions going to the root of the prosecution case or occasioning prejudice can justify interference with a conviction. This principle was affirmed in **Twehangane Alfred v Uganda*, Criminal Appeal No. 139 of 2001***, and reiterated by the Court of Appeal in **Richard Munene v Republic [2018] eKLR.** 31. In the present case, the inconsistency related solely to the precise time of the attack. It did not affect the fact of the assault, the identity of the complainant or the assailant, the weapon used, or the nature of the injuries sustained. The prosecution witnesses were unanimous that the Appellant, whom they knew as a neighbour, attacked the complainant with a machete, causing the amputation of one finger, and the medical evidence independently corroborated that evidence. 32. I am therefore satisfied that the discrepancy as to whether the attack occurred at 4.00 a.m. or 4.00 p.m. was merely peripheral and did not create any reasonable doubt as to the Appellant's guilt. Given the lapse of time between the incident and the testimony, such a discrepancy is neither unusual nor sufficient to discredit otherwise credible evidence. I accordingly find that the inconsistency was immaterial and did not occasion any miscarriage of justice. 33. *Whether the Appellant's alibi defence raised a reasonable doubt* 34. The Appellant's principal defence before the trial court was that he was not present at the scene of the crime. He maintained that on the material date he was working in Lodwar, Turkana County, and only learnt of the incident while there. According to him, he travelled back to Meru and was subsequently arrested during a meeting convened by village elders over what he described as an existing land dispute between himself and the complainant. 35. The learned trial magistrate rejected the alibi, holding that it was an afterthought and a concoction because it had not been raised earlier during the trial. As a first appellate court, it is incumbent upon this Court to examine afresh whether that conclusion was legally and factually justified. 36. In **Kiarie v Republic [1984] KLR 739**, the Court of Appeal held that an accused person who raises an alibi assumes no burden of proving it. The burden remains throughout upon the prosecution to disprove the alibi and establish the accused's guilt beyond reasonable doubt. In **Wang'ombe v Republic [1980] KLR 149**, the Court emphasized that an accused person is entitled to raise an alibi at any stage of the proceedings, even for the first time during his defence, and the mere lateness of the defence is not a sufficient basis for rejecting it. 37. In **Victor Mwendwa Mulinge v Republic [2014] eKLR**, it was held that although an alibi may be raised for the first time during the defence, the court must weigh it against the prosecution evidence and determine whether, viewed alongside the entire evidence, it raises a reasonable doubt. 38. Accordingly, I respectfully depart from the reasoning of the trial court to the extent that it rejected the alibi merely because it had been raised late. That, standing alone, would not constitute a proper basis for rejecting an alibi. The correct inquiry is whether, after considering the entire evidence on record, the alibi is reasonably true or whether it is displaced by credible prosecution evidence. 39. Having independently re-evaluated the evidence, I am satisfied that the prosecution effectively displaced the Appellant's alibi. First, the prosecution case was founded upon positive recognition by three witnesses who knew the Appellant well as their neighbour. As already observed, recognition by persons previously acquainted with an accused person is generally more reliable than identification of a stranger. 40. Secondly, the Appellant's own evidence lacked independent corroboration; His defence witnesses, DW2 and DW3, did not testify that they personally saw him in Lodwar on the material day. Rather, both admitted that the information regarding his alleged presence in Lodwar was obtained from the Appellant's wife. Neither witness professed any personal knowledge of the Appellant's whereabouts at the material time. Their evidence was therefore hearsay and incapable of proving the alibi. 41. Moreover, neither witness called the Appellant's wife the very person from whom they allegedly obtained the information to testify. The wife, who would have been the most material witness on the question of the Appellant's whereabouts, was never called. 42. Further, DW2 admitted during cross-examination that he neither witnessed the assault nor could he guarantee that the Appellant was not present at the scene. DW3's testimony similarly suffered from internal inconsistencies. He claimed to have communicated with the Appellant in Lodwar regarding miraa deliveries yet simultaneously asserted that he did not possess the Appellant's telephone number and therefore had to inquire from the Appellant's wife. The learned trial magistrate rightly found that explanation implausible. 43. When weighed against the direct evidence of recognition by PW1, PW3 and PW4, the alibi does not raise any reasonable doubt. I therefore reach the same conclusion as the trial court, albeit for different reasons. The alibi fails not because it was raised late, but because it was overwhelmingly displaced by credible and consistent prosecution evidence. 44. *Whether the learned trial magistrate declined to admit defence witnesses* 45. Grounds 9, 10 and 11 of the petition allege that the trial court refused to admit defence witnesses and thereby violated the Appellant's constitutional right to a fair trial. 46. The proceedings clearly show that after being placed on his defence, the Appellant gave sworn testimony and thereafter called two witnesses, namely Patrick Kaberia (DW2) and John Kitonga (DW3). Their evidence occupies several pages of the proceedings and was expressly analysed by the learned trial magistrate before he reached his verdict. It cannot therefore be said that the Appellant was denied an opportunity to present his defence. 47. *Whether the conviction was safe* 48. Having independently reconsidered the entire evidence, I am satisfied that the prosecution established all the essential ingredients of the offence beyond reasonable doubt. I therefore find no basis upon which this Court can interfere with the conviction. 49. *Whether the sentence should be interfered with* 50. The Appellant also challenges the sentence. The principles governing appellate interference with sentence are equally settled. In **Bernard Kimani Gacheru v Republic [2002] eKLR**, the Court of Appeal held that sentencing is a matter resting in the discretion of the trial court and an appellate court will not interfere unless it is shown that the trial court acted upon a wrong principle; it overlooked some material factor; it considered an irrelevant factor; or the sentence is manifestly excessive in the circumstances. 51. The learned trial magistrate considered the Appellant's mitigation, noted that he was a first offender, but also considered the gravity of the offence, observing that the complainant's finger had been "chopped to the ground." The court thereafter imposed a custodial sentence. The permanent loss of a finger is a serious and irreversible injury. Such injury falls squarely within the statutory definition of grievous harm. In those circumstances, a custodial sentence cannot be faulted. 52. In the result, I make the following orders; 53. The appeal against conviction and sentence is **dismissed**. 54. The conviction for the offence of causing grievous harm contrary to section 234 of the Penal Code is hereby **affirmed**. 55. The sentence imposed by the trial court is upheld. 56. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 17th DAY OF JULY 2026.** **DK RONO** **JUDGE**