[2006] KEHC 395 (KLR)
The High Court, as a first appellate court, independently re-evaluated the evidence and found that the prosecution had proved beyond reasonable doubt that the appellant, together with others, attacked and injured the complainants and maliciously damaged their property. The evidence of the complainants was...
Source-derived case information.
- Citation
- [2006] KEHC 395 (KLR)
- Parties
- Appellant: Julius Matayo Kirakta alias Choma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Legal Topics
- Grievous Harm, Malicious Damage to Property, Sentencing, First Offender, Mitigation, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Matayo Kirakta alias Choma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted of grievous harm and malicious damage to property.
- 2 Whether the trial court properly evaluated the evidence and disbelieved the appellant's defence.
- 3 Whether the sentence imposed was harsh and excessive in the circumstances.
Ratio Decidendi
The High Court, as a first appellate court, independently re-evaluated the evidence and found that the prosecution had proved beyond reasonable doubt that the appellant, together with others, attacked and injured the complainants and maliciously damaged their property. The evidence of the complainants was corroborated by eyewitnesses and medical testimony. The trial court properly disbelieved the appellant's defence. However, the court found that the sentence of 12 years' imprisonment for each count of grievous harm was harsh and excessive, given that the appellant was a first offender, was remorseful, and the injuries, though serious, were not life-threatening. The court therefore set...
Court Disposition
appeal_partially_allowed
Orders
- Conviction on all three counts is upheld.
- Sentence of 12 years' imprisonment on counts 1 and 2 is set aside and substituted with four years' imprisonment on each count, to run concurrently.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Criminal Appeal 1 of 2004
JULIUS MATAYO KIRAKTA ……………….……..………………. APPELLANT
VERSUS
REPUBLIC …………………………..…………………………… RESPONDENT
(From original conviction and sentence of the SRM’s court at Nyamira in criminal case No.817 of 2003)
JUDGMENT:
Appellant JULIUS MATAYO KIRAKTA alias CHOMA was convicted on two counts of grievous harm contrary to s.234 Penal Code and sentenced to 12 years imprisonment in each count. He further was convicted on a charge of malicious damage to property contrary to s.339 (1) Penal Code and sentenced to 6 months imprisonment in count 3 and 12 years imprisonment in count 1 and 2. Sentence to run concurrently.
The complainant in count 1 Evans Makori told the court that on the material day at 2 p.m. he was in his house with his wife AGNES KEMUMA OKARI (PW2) the complainant in the 2nd count. He was eating. They also were with Daniel Kerongo Bundi and Charles Momanyi Makori. The appellant went and demanded his Radio cassette from PW1. Pw1 told him to go and bring his. They had exchanged their Radio cassettes. The appellant left.
He returned soon thereafter with Nyachieo Kiraka and Sirimbi Kiraka. Appellant got in the house through a window as the others stood at the door. They all had machetes. Appellant cut the complainant on the head and right shoulder. Agnes (PW2) was also cut on the left hand. The assailants fled. Both PW1 & 2 were taken to hospital where they were admitted. When PW1 was cut his coat and shirt were also damaged.
Appellant was arrested later and charged.
In defence appellant told court that it was the 1st complainant (PW1) who actually attacked him at his gate. He injured him on the left leg and he was taken to hospital.
This being a first appellate court I have re-evaluated the evidence. I find that the trial magistrate rightly found that the appellant attacked and injured the complainants and destroyed a coat and a shirt.
PW1 & 2 clearly narrated how they were attacked. Appellant and two others were armed with machete. Their evidence was corroborated by that of CHARLES MOMANYI (PW1) and DANIEL KERONGO BUNDI (PW6) who witnessed the incident. It took place in broad daylight. PW5 the clinical officer who examined them confirmed the injuries as described by the complainants. The evidence was overwhelming and the trial court came to the proper conclusion.
The appellant had stated in his defence that he was the one who was attacked by the complainant and injured. He called a witness DW2 who corroborated this. This evidence was considered by the trial magistrate and he properly disbelieved it.
I therefore uphold the conviction of the appellant in all the three counts.
As to the sentence the appellant has already served the 6 months imposed on count 3. In count 1 and 2 he was sentenced to 12 years imprisonment in each count. The prosecutor told court that he was a first offender and in mitigation he was said to be remorseful, married with children of tender age. The injuries suffered may have been serious but they were not said to be life threatening. I fell 12 years imprisonment was harsh and excessive in the circumstances. I set aside the sentence and substitute it with one of four (4) years imprisonment on each count to run concurrently.
Dated 14th June 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
Mr. Kemo for Republic
Appellant present