[2004] KEHC 776 (KLR)
The court found that the appellants were properly identified by the complainant and corroborated by another witness, establishing their guilt beyond reasonable doubt. However, considering that the appellants were first offenders and the injuries inflicted were superficial, the court held that the sentence of 18...
Source-derived case information.
- Citation
- [2004] KEHC 776 (KLR)
- Parties
- Appellant: Julius Ogembo Gichana; Appellant: Evans Murura Gichana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 271 and 277 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence allowed.
- Legal Topics
- Assault, Sentencing, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Ogembo Gichana
Appellant
Evans Murura Gichana
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants were properly identified as the perpetrators of the assault.
- 2 Whether the conviction for assault was supported by the evidence.
- 3 Whether the sentence imposed was excessive given the circumstances.
Ratio Decidendi
The court found that the appellants were properly identified by the complainant and corroborated by another witness, establishing their guilt beyond reasonable doubt. However, considering that the appellants were first offenders and the injuries inflicted were superficial, the court held that the sentence of 18 months imprisonment without the option of a fine was excessive. The court substituted the sentence with one for the period already served, ordering the appellants' immediate release unless otherwise lawfully held.
Court Disposition
Appeal against conviction dismissed; appeal against sentence allowed.
Orders
- Conviction upheld.
- Original sentence of 18 months imprisonment set aside and substituted with sentence for period already served.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NOS. 271 AND 277 OF 2003
(From original convictions and sentences of the Chief Magistrate’s Court at Kisii in Criminal Case No.1471 of 2002 – O. OPONDO - S.R.M)1. JULIUS OGEMBO GICHANA ) 2. EVANS MURURA GICHANA ) ……………………………… APPELLANTS VERSUS REPUBLIC ……………………………………………………………. RESPONDENTJUDGMENT
The two appellants were convicted for the offence of assault c/s.251 of the Penal Code. They have appealed against both conviction and sentence.
The evidence against the appellants was overwhelming. They were identified by the complainant. PW2 their younger brother also testified that they armed themselves with stones and axes and went to wait for the complainant at a place he used to always pass through from his kiosk.
I therefore find that both were properly convicted and I uphold the conviction.
As for the sentence the two appellants were treated as first offenders. They pleaded for leniency in mitigation. The injuries suffered by the complainant were superficial. In the circumstances the sentence of 18 months without a fine option was excessive. I set it aside and substitute it with one for the period already served.
Appellants be set at liberty unless otherwise legally held.
KABURU BAUNI
JUDGE.
27/7/04
Dated and delivered on 27th July 2004.
KABURU BAUNI
JUDGE.