[2025] KEHC 2340 (KLR)

Kibet v Republic (Criminal Appeal E001 of 2024) [2025] KEHC 2340 (KLR) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 2340 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E001 of 2024

JR Karanja, J

February 6, 2025

Between

Meli Everton Kibet

Appellant

and

Republic

Respondent

(Being an appeal from the judgment sentence and conviction handed down by Hon. Japheth Bii, Chief Magistrate dated, delivered and passed on 9th December 2024 in Kericho Chief Magistrate’s Court Criminal Offence No. 2547 of 2023 [Republic vs. Everton Kibet)

Judgment

1. The Appellant, Everton Kibet Meli, appeared before the Senior Resident Magistrate at Kericho facing a charge of grievous harm, Contrary to Section 234 of the Penal Code, in that on the 6th March 2023 at Kericho County, he did grievous harm to MC.

2. After a full trial, the Appellant was convicted and sentenced to imprisonment for life. Being dissatisfied with the conviction and sentence the Appellant preferred the four [4] grounds of appeal contained in the petition of appeal dated 18th January 2024. His major complaint is that the trial court erred in law and fact by convicting him on evidence which was contradictory and which did not prove the charge beyond reasonable doubt. He further complains that the sentence meted upon him was harsh and excessive in the circumstances.

3. The Appellant therefore prayed for the conviction to be quashed and the sentence be set aside.At the hearing of the appeal which proceeded by way of written submissions, the Appellant was represented by Learned Counsel, Mr. Okok.The State/ Respondent represented by the Learned Prosecution Counsel, Mr. Masisa, opposed the appeal.

4. Having considered the appeal on the basis of the supporting grounds and the rival submissions in support and opposition thereto the duty of this court was to revisit the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses [See, Okeno Vs. Republic [1972] E.A. 32].

5. Briefly, the prosecution case was that at the material time the complainant Melvin Cherono [PW1] was a student and the Appellant was her boyfriend.On the material 6th March 2023, the Complainant was at her sister’s home in [Particulars Withheld] when she came across the Appellant along a path near a bush. He held her hand and being afraid she screamed. He threatened her, drew out a long sword and stabbed her on the belly with it and went away leaving the sword embedded in her belly. She screamed more while on the ground.

6. FC [PW3], was nearby feeding cattle when she heard a loud scream from a nearby road and rushed to the scene only to find the Complainant on the ground with a long knife protruding from her belly. The Complainant pleaded for the knife to be pulled out even as villagers arrived at the scene.

7. F [PW3] feared that the Complainant might pass on. She had seen the Appellant running away from the scene even though she had previously not know him.A Village Elder, Daniel Matingwony [PW2], was on his way to the shop when he was informed by some women that there were people arguing. He approached the two people who were the Complainant and the Appellant.Shortly thereafter, he saw the Appellant remove a knife and stab the Complainant before running away with the village elder and other in hot pursuit. The Village Elder however, turned back to help the injured Complainant.

8. JL [PW4], also heard screams from the nearby road and rushed there. She found the Complainant having been stabbed and saw the Appellant running away towards some hills. She had on the previous day met and seen the Appellant when he came to her home asking for drinking water and to be shown the home of the Local Village Elder.

9. The complainant was taken and admitted to the Kericho District Hospital after being stabbed. A medical officer, Nancy Wendot [PW5], later examined her and compiled the necessary P3 form [P. EX 4] indicating that the Complainant had suffered grievous harm as a result of the assault against her by the Appellant.After being reported to the police, the matter was investigated by PC Catherine Chepchirchir [PW6], who eventually preferred the present charge against the Appellant.

10. The defence case was a denial and a contention by the Appellant that on the 28th February 2023, he travelled to Elgeyo Marakwet to attend the funeral of a cousin. He also went to Molo and Nairobi and returned to his home after a month, but in the month of August he was arrested at Chepseon.The Appellant thus implied that he could not have committed the offence as he was not present at the scene of the offence when it occurred.

11. The trial court after having considered the evidence in its totality concluded that the case against the Appellant had been proved beyond any reasonable doubt. The Appellant was therefore convicted and sentenced accordingly.This court, having re-visited the evidence is satisfied that the Appellant was properly and lawfully convicted. This is because there was undisputed evidence that the Complainant was indeed assaulted and occasioned grievous harm on the material time.

12. The evidence in support thereof was that of the Complainant [PW1] as corroborated by that of F [PW3], the Village Elder [PW2], J [PW4] and the Medical Officer [PW5].The necessary ingredients of the offence were thus fully and credibly established by the evidence of the foregoing witnesses.

13. The trial court was therefore justified to arrive at the conclusion that the charge had been proved beyond reasonable doubt.The identification of the Appellant as the offender was the bone of contention, but this was held in favour of the prosecution by the trial court. In this court’s opinion, the finding was correct as the offence occurred in broad daylight and the Appellant was clearly recognized by the Complainant who was his girlfriend and who confirmed the fact.

14. The investigations carried out by the Investigating Officer [PW6] also revealed and confirmed that the Complainant was indeed a girlfriend of the Appellant.There was sufficient and credible evidence from the Complainant establishing that the offender was no other person but the Appellant. This fact was corroborated by the evidence of the Village Elder [PW2], F [PW3] and J [PW4]. The three clearly identified the Appellant as the person who was seen running away from the scene of the offence after it had occurred.

15. Having the presence of daylight at the scene of the offence and the opportunity to see a person clearly, this court would hold that the recognition and/or identification of the Appellant as the Offender was proper and free from possibility of mistaken identification. It was thus established and proved by the prosecution that the Appellant was the actual person who assaulted the Complainant using a sword or long knife or knife thereby occasioning her grievous harm.

16. The Appellant was placed at the scene of the offence at the material time by the aforementioned identifying witnesses thereby disproving his alibi or rendering it an afterthought.In sum, all the ingredients of the charge including the identification of the Appellant were proved beyond reasonable doubt against him. His conviction was sound and proper and is hereby affirmed.

17. On sentence, Section 234 of the Penal Code provides for a maximum sentence of life imprisonment which was meted out against the Appellant by the trial court. There was nothing wrong with the sentence. It was lawful. However, considering that the Appellant was a first offender and appeared remorseful as may be deciphered from his mitigation the sentence was rather harsh and excessive in the circumstances.

18. Consequently, the sentence of life imprisonment is hereby set aside and substituted for a sentence of fifteen [15] years imprisonment.Other than the alteration in the sentence, this appeal be and is hereby dismissed.

DELIVERED AND DATED THIS 6THDAY OF FEBRUARY 2025HON. J. R. KARANJAH,JUDGE