https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12013

**Republic of Kenya** **In the High Court OF KENYA at MAKUENI** **Criminal Appeal E005 OF 2025** **JOSPHAT KASYOKA PETER APPELLANT** **VS** **REPUBLIC RESPONDENT** **judgment** ***(Being an appeal from the Judgment of the trial court, Hon. P.M Gesora (CM) in Makueni criminal case No. E188 of 2023)*** 1. Josephat Kasyoka, the appellant herein was charged with the charge of grievous harm contrary to Section 234 of the Penal Code. The particulars before court at that on the 14th April 2024 at around 1.00 hours jointly with another not before court, at Kyambalasi Market in Makueni Sub County within Makueni County unlawfully did grievous harm to Richard Ngunga. 2. The appellant faces a second charge of unnatural offence contrary to Section 162(a) of the Penal Code. The particulars being that on 14th April 2024 at around 1.00 hours jointly with another not before court, at Kyambalasi Market in Makueni Sub County within Makueni County had carnal knowledge of Richard Ngunga against the order of nature. 3. The appellant pleaded guilty and was convicted on his own plea of guilty, and sentenced on count 1 to serve five years imprisonment and on count 2, to serve 10 years imprisonment. The trial court made orders for the sentences to run consecutively. 4. Dissatisfied with the said conviction and sentence, he appealed to this Court on the following grounds:- ***1. The learned trial magistrate erred in fact and law by convicting the appellant on evidence that did not met the minimum threshold which hence lacked the probative value to uphold a conviction.*** ***2. The learned trial magistrate erred in fact and law by failing to note and put into consideration that the prosecution case was full of contradictions and fabricated stories which were maliciously forged to aid in preferring trumped up charges against the appellant.*** ***3. The learned trial magistrate erred in fact and law by when he shifted the burden of proof to the appellant and ended up arriving at the wrong conclusion to the detriment of the appellant’s justice.*** ***4. That the appellant is a first time offender and the learned trial magistrate ought to have considered the same while awarding the sentence. The appellant urges the honorable to be lenient, just and fair when determining this appeal.*** ***5. That the appellant requests this honourable to suffice ( sic) the appellant with his proceedings in order to lay more water tight evidence and grounds during the hearing of this appeal.*** 5 .The Respondent opposed the Appeal which was canvassed by way of written submissions. Both sides filed their respective submissions. 6. The duty of the first Appellate Court as was held *in Okeno –vs- Republic (1972) EA 32,* is to conduct a fresh and exhaustive evaluation of the entire evidence and draw its own independent conclusions, while bearing in mind that it never saw or heard the witnesses testify. 7. When the case came up before court for plea taking, the appellant pleased guilty to the charges. However, he was further remanded in prison custody because the court was informed that the complainant was still hospitalized. 8. On 24th April 2023, the facts of the case were read out to the appellant. It was stated that on 14th April 2023, at around 1.00 a.m., the complainant who was drunk took shelter at Dubastan bar. Two people accosted him, and they hit him with a bottle, and he became unconscious. 9. They then dragged him to a nearby building and sodomised him. He was rescued the following morning at 6 a.m by members of public and taken to Mukuyuni Police Station, and later taken to Makueni County referral Hospital where he was treated and a P3 form filled. The CCTV footage obtained showed that the appellant was one the assailants. The appellant was arrested and charged with the offence before. The PRC form, treatment notes were produced as exhibits before court. 10. The offence of grievous harm is created by Section 234 of the Penal Code (cap 63 Laws of Kenya) which states:- “Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life”. 11. “Grievous harm” is defined under Section 4 of the Penal Code. It means:- “Any harm which amounts to maim or dangerous harm, or seriously or permanently injures health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organs, Membrane or Sense.” 12. The ingredients for the offence of grievous harm, which the Prosecution need establish beyond reasonable doubt are therefore:- *1. That the Complainant suffered grievous harm.* *2. The harm was caused unlawfully.* *3. The accused caused the grievous harm.* 13. In breaking down the above provisions of law and principles, the Court of Appeal, in the case of; *John Oketch Abongo v Republic [2000] eKLR* held as follows: “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*](https://kenyalaw.org/akn/ke/act/1930/10). 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.In this case we have carefully considered the medical evidence and the findings made by the Clinical Officer both in the P3 form and in the evidence in court. We have also carefully considered the definition of grievous harm as contained, not only in the [*Penal Code*](https://kenyalaw.org/akn/ke/act/1930/10) already quoted in this judgment, but also in the P3 form to which we were referred by Mr. Onsongo.We are satisfied that the complainant's injury amounted to grievous harm as defined in the [*Penal Code*](https://kenyalaw.org/akn/ke/act/1930/10). The definition contains several ingredients of what constitutes grievous harm. We are of the opinion that the presence of any one of these ingredients would suffice to disclose grievous harm. Here, we are satisfied that the complainant's injury did amount to dangerous or serious injury to health both of which are ingredients contained in the definition.” 14. From the foregoing, it is clear that although the definition of “grievous harm” contains several ingredients, proof of the presence of any one of those ingredients is sufficient to disclose the offence. 15. As a result of the definition and principles above, it is now generally agreed, as has been restated in various authorities, that the specificities of "grievous harm" are therefore; (i) in the case of “grievous harm”, the injury to health must be permanent or likely to be permanent, whereas, to amount to “bodily harm”, the injury to health need not be permanent, (ii) a mental injury may amount to grievous harm but not to bodily harm, and (iii) the injury must be of such a nature as to cause or be likely to cause permanent injury to health. 16. On the first issue, the victim is this case suffered injuries which were classified as grievous harm. The doctor in the P3 form dated 24th April 2024 noted that the complainant has suffered grievous harm and was admitted in hospital for a period of 12 days .The attack was not in self defence or defence of property and cannot therefore legally be justified. It was therefore unlawful. 17. On identification of the Appellant, the facts as stated was that there was a CCTV footage that was viewed and the appellant as identified as one of the assailants. The appellant did not dispute the fact that he was positively identified. He confirmed that the facts as confirmed in court were true and correct. The incident was captured on CCTV footage and there is no doubt that she’s the real culprit. 18. On count 2, to establish its case against the Appellant, the prosecution was required to establish the three elements that constitute the charge of committing unnatural act against the order of nature: the first element is penetration. The prosecution must establish that the Appellant caused penetration on the anuses of the complainant which is against the order of nature. 19. The P3 form produced in court indicated that the complainant had bruises and tears around the anus, which was evidence of anal penetration. To this extent, the charge of committing an unnatural offence was established to have taken place, beyond reasonable doubt and I thus find that the conviction was safe. 20. Now turning to sentence imposed, the offence of grievous harm carries on the upper side life imprisonment. The Appellant herein was sentenced to serve 5 years imprisonment, and 10 years for the charge of committing unnatural act contrary to section 162 of the Penal Code. 21. In *Bernard Kimani Gacheru -vs- Republic (2002) eKLR,* the Court held that sentencing is a matter that rests in the discretion of the trial Court, and an Appellate Court will not easily interfere with that discretion unless it is evident that the trial Court acted on wrong principles or overlooked material factors. 22. The Supreme Court, in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR), guided that, in sentencing, the following mitigating factors would be applicable; (a) Age of the offender; (b) Being a first offender; (c) Whether the offender pleaded guilty; (d) Character and record of the offender; (e) Commission of the offence in response to gender-based violence; (f) Remorsefulness of the offender; (g) The possibility of reform and social re-adaptation of the offender; and (h) Any other factor that the Court considers relevant. 23. I also cite Majanja J, in the case of *Michael Kathewa Laichena & another v Republic [2018] eKLR,* in which, quoting the Muruatetu case (supra), he stated as follows: “The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………” 24. Applying the above principles to the facts of this case, I consider that the offence of “grievous harm” committed by the Appellant was a serious one and under the [*Penal Code*](https://kenyalaw.org/akn/ke/act/1930/10), is categorized as a felony. The possible statutory punishment being set at up to life imprisonment is enough evidence of its seriousness. It is a crime therefore always severely punished. 25. Five years imprisonment given the circumstances of this case cannot be said to be a harsh and an excessive sentence. It’s actually lenient, and I find no justifiable cause to interfere with the same. No justification has therefore been demonstrated to warrant this appellate Court’s interference with the verdict of conviction arrived at by the trial Court and sentence imposed. In the premises, I find no reason to interfere with the conviction and sentence of the appellant. The complainant will no doubt suffer lifelong trauma resulting from the assault. 26. Regarding sentence in respect of count 2, Section 162 of the Penal Code provides as follows:- *Any person who— (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years: Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if— (i) the offence was committed without the consent of the person who was carnally known; or (ii) the offence was committed with that person's consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.* 27. The offence was committed without the consent of the complainant, and as such the appellant herein was liable to imprisonment for 21 years. The trial magistrate sentence him to serve 10 years. 28. The appellant in his mitigation prayed for leniency and the court also considered that he is a first offender I has mitigation. The sentence imposed, considering the circumstances of the offence, and the manner in which the offence was committed is not harsh nor excessive. 29. The appellant in his submissions urged the court to make orders that the sentence imposed to run concurrently as opposed to consecutively as ordered by the trail court. 30. Section 14 of the [*Criminal Procedure Code*](https://kenyalaw.org/akn/ke/act/2011/11A) provides as follows: 1. *Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefore which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.* 31 .In [*Peter Mbugua Kabui v Republic*](https://kenyalaw.org/akn/ke/judgment/keca/2016/713) [2016] eKLR the Court of Appeal stated as follows: “As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment. 32. In *Sawedi Mukasa s/o Abdulla Aligwaisa* [1946] 13 EACA 97, the Court of Appeal for Eastern Africa considered the issue of a consecutive as opposed to a concurrent sentence and expressed the view that it was still good practice to impose concurrent sentences where a person commits more than one offence at the same time and in the same transaction save in very exceptional circumstances. Further Sentencing Policy Guidelines provide as follows: -“ 7.13 – Where the offence emanates from a single transaction the sentences should run concurrently. However, where the offences are committed in the course of multiple transactions and where there are multiple victims the sentences should run consecutively”. 33. The Court of Appeal has defined the phrase ‘same transaction rule’ in the case of *Republic v Saidi Nsabuga S/O Juma & Another* [1941] EACA and revisited it again in *Nathan v Republic* [1965] EA 777 where the court stated as follows: - “If a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose, or by relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.” 34. On the matter at hand, this court agrees with the Appellant that there is no sufficient justification for making the order for the consecutive operation of the sentences. In view of the above observations, pursuant to section 362 of the [*Criminal Procedure Code*](https://kenyalaw.org/akn/ke/act/2011/11A), the order on consecutive sentences stands reviewed and substituted with an order for concurrent sentences. 35 .I also note that the record does not reflect that the Appellant was at any time released on bail/bond during the entire trial. From the charge sheet, he was arrested on 3/04/2023 and the trial was concluded on 24/04/2023 when the sentence was read out. He was therefore in custody for about 21 days. 36. Under the provisions of Section 333(2) of the [*Criminal Procedure Code*](https://kenyalaw.org/akn/ke/act/1930/11), the period of time spent by the Appellant in custody as aforesaid ought to have been taken into account. The trial Magistrate did not however mention whether she took into account this period spent in custody by the Appellant during the trial. This period ought to be credited from the sentence. **Final orders.** In the end, I make the following final Orders: i). The appeal against conviction fails and the same is upheld ii). On sentence, the order on consecutive sentences stands reviewed and substituted with an order for concurrent sentences.to be computed from the date of arrest, 17/04/2023. **DELIVERED, DATED AND SIGNED ON 30TH DAY OF JULY, 2026.** **JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU.** **JUDGE** In the presence of: - Miss for the State Appellant in person Court Assistant – Mr. Kibet.