Kazungu & 2 others v Republic (Criminal Appeal E029 of 2024) [2026] KEHC 9913 (KLR) (2 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E029 OF 2024** **KENNEDY MAKAU KAZUNGU** **ANDERSON KAZUNGU MAKAU** **JUSTINE KAZUNGU MAKAU ....................................... APPELLANTS** **VERSUS** **REPUBLIC ..................................................................... RESPONDENT** *(Appeal from the original conviction and sentence in Criminal Case No. E787 of 2022 of the Chief Magistrate's Court at Malindi by Hon. J. Ongondo, SPM)* **JUDGMENT** 1. The duty and burden to prove a criminal case beyond a reasonable doubt always rests upon the prosecution. This burden never shifts. It is not for the Accused to explain away his innocence. At the end of the trial if any shadows are left creeping, any grey areas, questions, lingering doubts, unexplained facts or documents, they all benefit the Accused and not the Prosecution. 2. It is not for a Trial Court to presume any facts or fill in any gaps or missing facts or information, so as to reach a certain conclusion. To the public it always appears absurd that Lady Justice wears a blind-fold. However, in reality Justice has blindfolded itself except to the truth. The criminal justice system has always worked this way and cannot be fair and just if it was to work in any other way. **Background Facts** 3. The Appellants, **Kennedy Makau Kazungu**, **Anderson Kazungu Makau**, and **Justine Kazungu Makau**, were all charged with the offence of causing grievous harm contrary to Section 234 of the Penal Code. 4. The prosecution alleged that on 30th October 2022, at Kwa Ndomo area, they jointly attacked **Alex Kalama Gona (PW1)** using wooden sticks and pipes, kicks and blows and hitting him using a hammer on the head causing a deep cut on the head. The Respondent presented evidence that the complainant sustained a calvarial fracture amongst other serious injuries. 5. The prosecution called five witnesses to prove its case. PW1 and PW2 testified that the attack happened in the evening at 7:00 PM. PW4, a medical doctor, produced a P3 form and CT scans showing a depressed skull fracture. 6. In their defence, the Appellants vehemently denied the charges. The 1st Appellant raised an alibi, producing a hotel attendance register through DW4. This was to prove he was at work at Ocean Beach Hotel until 8:00 PM. The other Appellants testified they were at home. They also cited a pre-existing land dispute as the malicious motive for the charges. 7. The Learned Trial Magistrate dismissed the defence in its entirety. He convicted the Appellants and sentenced them to 15 years imprisonment. He made findings that they had "plotted to attack" the complainant and "violently and grievously attacked complainant in broad day light". **Grounds of Appeal and Reliefs Sought** 8. The Appellants raised several grounds, heavily criticizing the variance between the charge sheet and the evidence. They argued the Trial Court unlawfully dismissed their alibi defence. That it relied on extraneous matters not tendered in evidence. They sought to have the conviction quashed and the sentence of 15 years set aside. In the alternative they submitted that the sentence meted out was excessive and did not fit the offence. 9. The Respondent, through **Senior Prosecution Counsel Joseph Mwangi**, supported the conviction. He argued that eyewitness testimony placed the Appellants at the scene. However, the State formally conceded that the 15-year sentence was excessive. It noted that the Appellants were first offenders. Further, that no pre-sentence report was ever called for by the Trial Court. **Issues For Determination** 10. The Court has carefully considered the Memorandum of Appeal, the record and the submissions filed by Counsel on record. This Court distils three issues for determination: 1. *Whether the Trial Court relied on extraneous facts.* 2. *Whether the medical evidence and the alibi created reasonable doubt.* 3. *Whether the sentence was excessive bearing in mind the offence.* **Analysis** 11. This is a first appeal. The duty of this Court is to re-evaluate the evidence afresh to reach its own independent conclusions, as guided by the Court of Appeal in **Okeno v Republic [1972] EA 32**. **(a) Whether the Trial Court relied on extraneous facts**. 12. The Trial Court's judgment raises concerns of misdirection by speculation. In his judgment, the Learned Trial Magistrate stated that the Appellants had "plotted to attack" the complainant. During sentencing, he justified the severe punishment by claiming the attack happened in "broad day light". 13. These facts exist nowhere in the evidentiary record. The prosecution's own witnesses testified the incident occurred between 7:00 PM and 9:00 PM—well into the night. Furthermore, the prosecution led absolutely no evidence of a prior plot or premeditation. 14. PW1 the Complainant testified that the attack took place at 7.00pm. PW2 supported this version. PW3 testified of an attack that took place at 9.00pm. As both PW1 and PW2 place PW3 at the scene, (as the **Amezidi** or **Hawe Sidi** the lady who screamed), this throws the time of the attack in doubt. For an incident that happened in the hours of darkness, once the time of the offence is unclear, this Appellate Court is bound to take note of the concerns raised. 15. **In Njoroge v Republic [1987] KLR 19**, the Court of Appeal held that judgments must be anchored strictly on the evidence adduced in open Court. A conviction sustained by a Learned Magistrate’s imagination rather than sworn testimony is fundamentally unsafe and cannot stand. ***(b)*****Whether the medical evidence and the alibi created reasonable doubt***.* 16. Furthermore, the prosecution's medical evidence was self-defeating. To secure a conviction for grievous harm under **Section 234** as read with **Section 4 of the Penal Code**, the prosecution must prove the harm was caused unlawfully by the accused persons. This ingredient was thoroughly discussed by the High Court on Appeal in **Pius Mutua Mbuvi v Republic [2021] KEHC 9695 (KLR)**, a case rightly cited by the Appellants. 17. The P3 form produced by PW4 explicitly recorded the cause of injury as "RTA" (Road Traffic Accident). This documentary evidence directly contradicted the prosecution's oral narrative of an assault with a sledgehammer. This medical evidence was crucial to prove the injuries and connect them with the offence. It also clarifies the magnitude or seriousness of the injuries either as harm or grievous harm. 18. Instead of demanding that the prosecution explains this fatal discrepancy, the Learned Trial Magistrate arbitrarily dismissed it, stating the 1st Appellant "has no capacity to interpret the contents". This was a misdirection and severe error of law. The burden of proof never shifts to the accused. If a state-produced document contradicts the state's own charge, the benefit of that doubt belongs exclusively to the accused. 19. The Magistrate also unlawfully discarded the 1st Appellant's alibi. The Appellant produced a work attendance register through an independent witness (DW4) showing he was at his place of employment at the exact time the assault allegedly occurred. The Magistrate rejected it as having "nil probative value". 20. As settled by the Court of Appeal in **Kimotho Kiarie v Republic [1984] KECA 65 (KLR)**, an accused person does not bear the burden of proving an alibi. He merely has to raise it. It is the prosecution's strict duty to investigate and break that alibi. The investigating officer (PW5) did nothing to disprove the attendance register. The alibi remained unbroken. **(c)** **Whether the sentence was excessive bearing in mind the offence**. 21. On the final issue of sentencing, the State's concession is highly proper and unavoidable. The Appellants were first-time offenders. The Learned Trial Magistrate threw the book at them. He passed the maximum sentence of 15 years. This is without calling for a probation or pre-sentence report to determine aggravating or mitigating circumstances. There would be many justifications for passing a maximum sentence, however, the Trial Court did not place such justifications on the record of either mitigation or sentencing. 22. In **Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR)**, the Court of Appeal provided binding guidance that first offenders should generally be given lenient, non-custodial sentences, or the option of a fine. A 15-year custodial sentence for first offenders, was not justifiable. It does not show how the learned Trial Magistrate exercised the sentencing discretion properly. 23. The Court has said enough to show that the conviction arrived at was not safe and it follows that it cannot be allowed to stand. Any grey areas, unexplained factors, snags and shadows of doubt in a criminal case, benefit the accused. It is not for the Court to presume or fill in the gaps. **Determination** 24. This Appeal is meritorious and succeeds in the following terms: 1. *The appeal is HEREBY ALLOWED.* 2. *The conviction of the Appellants is HEREBY QUASHED.* 3. *The sentence of 15 years imprisonment is HEREBY SET ASIDE.* 4. *The Appellants are HEREBY set at liberty forthwith and are HEREBY released from prison unless they are otherwise lawfully held for any other cause.* 25. It is so ordered. **DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** **Judgment delivered in the presence of** Mr. Mouko for the Appellants. Miss Mutua for the State. Mr. John Paul - Court Assistant.