https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12864

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL APPEAL NO. E076 OF 2023** **ELIJAH GICHERU KIBOI………………………………….....APPELLANT** **VERSUS** **REPUBLIC.............................................................................RESPONDENT** **JUDGMENT** 1. This is an appeal from the conviction and sentence meted out by the Hon. M.N. Lubia, Senior Resident Magistrate, in Nyeri MCCR No. E733 of 2022 on 27th November 2023. The Appellant was charged with the offence of assault contrary to Section 251 of the Penal Code. The particulars of the offence were as follows: That on 24th January 2022, at 1100hrs at Kariguini village within Tetu sub-county of Nyeri County, the Appellant unlawfully assaulted JBK by cutting him with a panga on the right side of the forehead, thereby occasioning him actual bodily harm. 2. The Appellant was arraigned in court on 14.9.2022, where he pleaded not guilty. The Appellant went through trial and was found guilty and convicted. The court sentenced him to serve 5 years' imprisonment. 3. The Appellant filed a grounds of appeal dated 5.12.2023 setting out the following grounds of appeal: 4. That the trial court erred in both law and in fact in failing to appreciate the fact that the alleged victim in this case clearly demonstrated an incredibly doubtful integrity and whose evidence was doubtful, occasioning a serious prejudice. 5. The trial court erred in both law and in fact in relying on poor identification at night, violating Turnbull guidelines. 6. The trial court erred in law and in fact by compelling the appellant to proceed with the trial before her, without considering that the appellant had no faith in her to deliver justice to him. 7. The trial court erred in law and in fact in failing to consider that Article 50(2) of the Constitution was contravened as the appellant was not granted a fair trial. 8. The trial court erred in law and in fact in failing to consider that the instant matter was framed. 9. That the proof was below the required standard of proof and therefore capable of impeaching the whole substance of the matter. 10. In summary, the appeal was that the trial court erred by relying on the complainant’s doubtful and unreliable evidence, particularly regarding identification at night, contrary to the principles in *R v Turnbull* [1977] QB 224. He further contended that the trial court compelled him to proceed before a magistrate in whom he had lost confidence, thereby denying him a fair trial in violation of Article 50(2) of the Constitution. The Appellant also lamented that the case against him was fabricated and that the prosecution failed to prove its case beyond reasonable doubt. Evidence 1. PW1 was the complainant. He testified that on 24/1/2023 at around 11:00 am, he was at home sleeping when his sister called him and informed him that the accused was on the farm cutting Napier grass (*Cenchrus Purpureus*) and carrying it away. He went to the farm and confronted the accused person. The complainant testified that the accused, who was armed with a panga, struck him on the forehead, causing him to bleed and fall to the ground. He testified that the appellant cut him, severing an artery and causing him to lose a substantial amount of blood. 2. The complainant stated that his sister, PW2, took him home and administered first aid before a social worker and neighbours came to assist. He was subsequently taken to Wamagana Hospital, where his wound was stitched and bandaged, and thereafter reported the incident at Giakanja Police Post. He identified the accused as the assailant and the panga as the weapon used. 3. After PW1's testimony, the trial court observed that the accused, from his demeanour, appeared unwilling to participate in the proceedings. When invited to cross-examine PW1, he remained silent and did not put any questions to the witness. 4. PW2, Veronica, testified that she had gone to the shamba together with her sister. While there, the appellant went to the farm and began taking feeds from them. They telephoned their brother, PW1, who came to the shamba to intervene. Upon the brother’s arrival, the appellant cut PW1 with a panga. Their other sister ran away while PW2 remained with her injured brother. She screamed for help, prompting neighbours to respond and administer first aid to PW1 before he was taken to Wamagana Dispensary for treatment. PW2 identified the appellant in court as the assailant. 5. After PW2's testimony, the trial court once more invited the accused to cross-examine the witness. He responded that he was not participating in the suit. The court recorded that he had declined to cross-examine the witness. 6. PW3, a doctor from Nyeri County Hospital, confirmed the injuries suffered by PW1. He produced the P3 form. The P3 was prepared at Nyeri County Hospital with reference from Wamagana Health Centre. The patient had a deep cut on the right side of the face. The weapon was a sharp object. The degree of injury was classified as harm. The court noted that from the accused’s demeanour, he did not want to cross-examine the witness. He kept quiet and did not cross-examine. 7. PW4 was Corporal Edward Chesergon of Dungamano patrol base. The investigating officer received a report in respect of this matter from PC McDonald Ouma. He found that this charge had not been changed. He received two pangas that were used to cut the complainant. He prepared the charge sheet and charged the appellant. He also informed the court that the accused person had been previously charged with malicious damage to property. The appellant and the complainant are cousins. 8. At the close of the prosecution's case, the court found that the accused had a case to answer and placed him on his defence. In response, the accused stated that he had finished with the case and that the court should decide it as it wished. The trial court interpreted this statement as an election to remain silent and accordingly treated the defence case as closed, with no evidence tendered by the accused. Submissions 1. The Appellant filed submissions on 20.1.2026 in the Swahili language. He submitted that the cause of the conflict was historical land injustices committed by the complainant's deceased parent. He further submitted that the complainant has been maliciously accusing him with the intent of getting him out of the land. He also added that the trial violated his rights under Articles 49 and 50 of the Constitution. 2. The Respondent filed submissions dated 25th February 2026. It was submitted that the trial proceedings demonstrated full compliance with Article 50(2) of the Constitution. That the appellant did not at any point raise an application that the trial court was biased, hostile and that there was prejudice that occasioned him a miscarriage of justice. 3. The Respondent submitted that the prosecution discharged its legal burden of proof for the offence of assault causing actual bodily harm. They relied on the case of *R v Donovan* [1934] 2 KB 498 that “bodily harm” means any hurt or injury that interferes with the health or comfort of the victim, which need not be permanent but must be more than trifling or transient. Analysis 1. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in **Pandya vs Republic [1957] EA 336** held as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not which may warrant a court different. 1. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of **Okeno v Republic [1972] EA 32 at 36**, where the East Africa Court of Appeal stated the following on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 1. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to *Halsbury’s Laws of England*, 4th Edition, Volume 17, paras 13 and 14: The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 1. Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision *in* *Re Winship* 397 US 358 {1970}, at page 36164 that: The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 1. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in **Miller vs. Ministry of Pensions**, [1947] 2 ALL ER 372 had this to say: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 1. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 1. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 26. Arising from the foregoing, the issues for determination in this appeal are: * 1. Whether the complainant suffered actual bodily harm within the meaning of section 251 of the Penal Code. 2. Whether the appellant was the assailant or perpetrator. 3. Whether there was a lawful defence to the offence. 1. The evidence on the ground was that PW1 was at home when his sister called him to say that the appellant was on the farm cutting Napier grass (*Cenchrus Purpureus)* and carrying it away. PW1 went to his farm and confronted the accused. The accused, who had a panga with him, hit him on the forehead with the panga, and he started bleeding. PW2 and a social worker gave him first aid. He was escorted to Wamagana Hospital, where he was stitched and bandaged. 2. PW3, a doctor from Nyeri County Hospital, confirmed the injuries suffered by PW1. He produced the P3 form. The P3 was prepared at Nyeri County Hospital with reference from Wamagana Health Centre. The patient had a deep cut on the right side of the face. The weapon was a sharp object. The degree of injury was classified as harm. In the case of [**Vicky Chelangat v Republic [2022] KEHC 932 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/932/eng%402022-04-25), F. Gikonyo, J posited that: “[35]. Of actual bodily harm, or hurt or injury, in Rex vs **Donovan**[[5]](http://kenyalaw.org/caselaw/cases/view/212598/%22%20%5Cl%20%22_ftn5)**, Swift J,** stated:- **"For this purpose, we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the complainant. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."** [36]. See also **R vs Chan-Fook**[[6]](http://kenyalaw.org/caselaw/cases/view/212598/%22%20%5Cl%20%22_ftn6)**,** paragraph D Lord Hobhouse LJ said:- **"We consider that the same is true of the phrase "actual bodily harm". These are three words of the English language that receive no elaboration and in the ordinary course should not receive any. The word "harm" is a synonym for injury. The word "actual" indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant."** [37]. Also relevant is a passage in Archbold's Criminal Pleading, Evidence and Practice, **32nd Edition**, Page 959 where it is stated as follows: - **"Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor" (i.e. complainant)** [38]. Section 2 of the Penal Code defines: - **“harm” means any bodily hurt, disease or disorder whether permanent or temporary;** [39]. I have carefully examined the facts, especially: - **The accused… attacked the complainant and punched her and bit her and picked a panga. She started beating her with it and cut her on the head.** 1. The offence for which the appellant was charged is set out in Section 251 of the Penal Code, which provides as follows: *Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.* 1. The question of the essential elements of the offence of assault causing actual bodily harm is largely settled. The Court of Appeal [Hancox JA, Chesoni and Nyarangi Ag JJA] sitting in Mombasa discussed the same in the case of [**Ndaa v Republic [1984] KECA 19 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1984/19/eng%401984-01-24) stated as follows: The ingredients of the offence of assault causing actual bodily harm are: *(a) Assaulting the complainant or victim* *(b) Occasioning actual bodily harm.* 1. It must be recalled that assault is a pervasive offence, with the lowest being common assault contrary to section 250 of the Penal Code and the most heinous being grievous harm contrary to section 234 of the Penal Code. Grievous harm is classified as an offence endangering life. On the other hand, the punishment for assault causing bodily harm is a maximum of 5 years. In this case, the court gave the maximum sentence, which I shall discuss shortly. 2. The record shows that PW1 gave an account of how the assault occurred. His evidence was corroborated by that of PW2, who was a witness. PW3 testified and confirmed that the complainant had suffered injuries as a result of the assault and produced the P3 form showing the degree of injury was harm. 3. On his part, the Appellant in his submissions maintained that he did not commit the crime and was framed. He submitted that he was arrested because of land conflicts, which were historical land injustices done by the complainant's deceased parent. That the complainant has been maliciously accusing him with the intent of getting him off the land. This particular aspect did not come out in evidence or cross-examination. 4. Where a witness is not cross-examined at the fault of the court, then the trial may be affected; however, in this case, it is the appellant who declined to cross-examine. In the case of [**Mark Oiruri Mose v Republic** [2013] KECA 67 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/67/eng%402013-12-20), the Court of Appeal, [Onyango Otieno, Azangalala & Kantai JJ.A] addressed the first aspect as follows: One wonders how the court could verify the truth of such a witness if the witness is not cross-examined on her evidence. Section 146(1) of the Evidence Act states:- “146(1) Witnesses shall first be examined in chief, then if the adverse party so desires, cross-examined, then if the party, calling them so desire, re-examined.” In this case, as the complainant was not cross-examined, the court could not have had full evidence upon which it could decide on the veracity of the evidence. We cannot tell what the first appellate court would have done had its attention been drawn to that omission. In our mind, had the learned Judge revisited the evidence afresh, analysed it, and evaluated it, he would have certainly appreciated that glaring omission. 1. In the case of [**David Marangu Njeru & another v Republic [2015] KECA 804 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/804/eng%402015-04-14), the Court of Appeal [Visram, Koome & Odek, JJ.A] addressed a similar scenario where accused persons tried to control the trial and refused to cross-examine witnesses as follows: They refused to cross–examine some witnesses, but the 2nd appellant apologised to the trial magistrate and requested that witnesses be recalled, but the court found the request unreasonable. The appellants deliberately tried to frustrate the trial, merely to come on appeal and challenge the trial which they boycotted; moreover, the issue of a fair trial was not canvassed before the High Court; it is clear the appellants wanted to control the criminal trial; the appellants opted not to say anything in their defence, which was also within their rights to choose to say nothing. In the circumstances, nothing displaced the prosecution evidence, which was strong as it proved all the ingredients of the offence. 1. The facts show that the appellant attacked and cut the victim with a panga, an act by which he intentionally caused his victim to suffer immediate unlawful violence; and the assault resulted in actual bodily harm, which was evidenced by way of medical documents. Thus, the facts proved the assault which caused actual bodily harm. The prosecution evidence was strong as it proved all the ingredients of the offence. 2. These facts, therefore, disclose an offence and support the charges of assault causing actual bodily harm contrary to section 251 of the Penal Code. The appellant did not offer any defence known in law for the action. The appellant raised the question of identification in his submissions. This was not raised in evidence. 3. It must be remembered that evidence showed that PW1 and PW2 are cousins. The question of identification is therefore moot. The witnesses recognised the appellant as a person known to them. The appellant himself did not question the identification. Indeed, time was not indicated when the offence occurred; it is only the appellant who is raising the same in submissions. The question of recognition was addressed in the case of **Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR),** where the Court of Appeal (Madan, Law & Potter JJ A) posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being nighttime, the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 1. Raising questions in submissions is not enough. Issues must be raised in the evidence itself. The doctor's evidence was that there was a cut wound. This could not have been caused by a land dispute. It may be exaggerated, but land cannot attack a person. A party cannot find a claim in submissions. They are neither evidence nor pleadings. Mwera J, as he then was, addressed the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny, in order to firmly establish a claim. In the case of **Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi**, Nairobi HCCC No. 36 of 1993: “Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed, a court may well proceed to give its judgement. There are many cases, especially where parties act in person, where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 1. Therefore, submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case as held in **Ngang’a & Another vs. Owiti & Another** [2008] 1KLR (EP) 749, the Court held that: **“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”** 1. The Court of Appeal was more succinct in that **Submissions cannot take the place of evidence** when they addressed the question in the case of **Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR**: **“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “**marketing language**”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”** 1. **The appellant was entitled, as a matter of constitutional right, to remain silent and require the prosecution to prove its case beyond reasonable doubt. However, the exercise of that right does not permit the court to speculate or construct a defence on the appellant's behalf. Where an accused person elects not to cross-examine the prosecution witnesses and declines to tender any evidence in defence, the court is confined to determining the case on the evidence properly placed before it.** 2. **The accused cannot remain silent throughout the proceedings and thereafter invite the court to infer or formulate defences such as the existence of a grudge, fabrication, or a frame-up, when no such matters were put to the prosecution witnesses or supported by any evidence. This is particularly so where there was a** complete failure to cross-examine the witnesses on any aspect of their testimony. 3. The court must address the question raised that the appellant had lost confidence in the trial magistrate. That may well be so. However, a criminal trial is not an arbitral proceeding in which parties choose the court to hear them. It is a compulsory process that begins with a summons or warrant. A court considers recusal only in cases provided for by law, following an application with valid reasons. Lack of confidence in a court is not one of the grounds for recusal. This was not done in the lower court. 4. Various legal instruments provide for recusal of courts, the Judicial Service (Code of Conduct and Ethics) Regulations 2020 pursuant to Section 47(2)(a) of the Judicial Service Act, Section 37 of the Leadership and Integrity Act, 2012, and Section 5(1) of the Public Officer Ethics Act, 2003. The latter Act has now been repealed and replaced by the Conflict-of-Interest Act, 2025, which came into force on 19 August 2025, after the decision had been made. Section 30 of the Act provides as follows: (1)A public officer shall recuse himself or herself from any discussion, **decision, debate or vote on any matter in respect of which the public officer would be in conflict of interest.** **(2)Where a public officer recuses himself or herself under subsection**[**(1)**](https://kenyalaw.org/akn/ke/act/2025/11/eng%402025-08-05#part_IV__sec_30__subsec_1)**-** * 1. **the recusal shall be recorded in the minutes of the transaction in question; and** 2. **a reporting entity shall, within sixty days after a day on which a recusal took place, transmit a declaration of the recusal to the Commission in the prescribed form.** 1. Under regulation 21(1) Judicial Service (Code of Conduct and Ethics) Regulations 2020, a court may recuse itself in any proceedings in which his or her impartiality might reasonably be questioned, that is: 2. is a party to the proceedings; 3. was, or is a material witness in the matter in controversy; 4. has personal knowledge of disputed evidentiary facts concerning the proceedings; 5. has actual bias or prejudice concerning a party; 6. has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter; 7. had previously acted as a counsel for a party in the same matter; 8. is precluded from hearing the matter on account of any other sufficient reason; or 9. or a member of the judge’s family has economic or other interest in the outcome of the matter in question. 10. There was no proper challenge to the court. I have perused the proceedings, and I am satisfied that the court properly heard the matter. I therefore dismiss the ground of lack of confidence in the court. 11. It must be appreciated that the right to a fair trial is sacrosanct and non-derogable under the Constitution. However, that right does not extend to permitting an accused person to choose the court or judicial officer before whom he or she will be tried. The constitutional guarantee is to an independent, impartial, and competent court established by law, not to a tribunal of the accused person's preference. After perusing the proceedings, I am satisfied that the right to a fair trial was respected and accorded to the appellant. 12. The other question raised was the failure to achieve the required standard of proof. The court cannot shift the burden of proof to an accused. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft-quoted English decision by Viscount Sankey L.C in the case of **H.L. (E) Woolmington *v DPP* [1935] AC 462**, pp. 481. Further reliance was placed on the case of **Sekitoleko v Uganda (1967) EA 531** at p 533, where the legendary Sir Udo Udoma C J stated as follows: *As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.* 1. The prosecution proved the three elements in the evidence. The doctor's evidence showed that there was injury and assault on the complainant. PW1 and PW2 were present when the assault took place. Their evidence was not impeached. 2. The question of whether the evidence was fabricated is moot. The Appellant did not raise any issue with any of the four witnesses, and none of their evidence was tested through cross-examination. This was neither attributable to the prosecution nor to the court. It was the Appellant’s own decision not to cross-examine the witnesses. The matters raised in submissions were not brought to the court in any way. Not even an application for recusal was filed. Even his subsequent assertion that he lacked confidence in the proceedings was not placed before the lower court. 3. The Appellant must appreciate that, in the conduct of a trial, an opportunity once given may not necessarily be available a second time, *una sola oportunidad y no dos*. He had a full opportunity to cross-examine the witnesses and test their evidence on all material aspects of the case. He chose not to do so. Having declined to exercise that opportunity, he cannot now complain that the evidence was untested. Indeed, the absence of cross-examination meant that no contradictions or inconsistencies were elicited in the prosecution evidence. 4. The prosecution proved all the essential elements of the offence through the evidence adduced at the trial. The medical evidence tendered by the doctor established that the complainant sustained injuries consistent with an assault. The evidence of PW1 and PW2 placed the appellant at the *locus in quo*, where they witnessed the assault on the complainant. Their testimony remained consistent and was not shaken or impeached during cross-examination. Consequently, I find that the burden of proof was discharged beyond reasonable doubt. The conviction was therefore safe. 5. On the issue of whether the sentence was harsh, the appellant was sentenced to serve five years' imprisonment from the date of arrest on 14.09.2022. However, the court did not indicate that the appellant was on bond from the said date. He ended up serving one year. The sentence was too lenient. Section 333(2) of the Criminal Procedure Code provides as follows: **(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63), every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.** **Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.** 1. Section 251 of the Penal Code provides that a person who is guilty of the offence of assault occasioning actual bodily harm commits a misdemeanour and is liable to imprisonment for five years. The trial court imposed what appears to be a maximum sentence but clapped it back with days the appellant was out of custody. He had since been discharged. He deserved the sentence given. It may not necessarily be a maximum sentence of five years. 1. Sentencing remains pre-eminently within the discretion of the sentencing court. In the case of *Mokela v S (135/11) [2011] ZASCA 166*, the Supreme Court of Appeal of South Africa [Mthiyane, Maya and Bosielo JJA] held that: [9] It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served. The limited circumstances under which an appeal court can interfere with the sentence imposed by a sentencing court have been distilled and set out in many judgments of this Court. See S v Pieters [1987 (3) SA 717](https://www.saflii.org/cgi-bin/LawCite?cit=1987%20%283%29%20SA%20717) (A) at 727F-H; S v Malgas [2001 (1) SACR 469](https://www.saflii.org/cgi-bin/LawCite?cit=2001%20%281%29%20SACR%20469) (SCA) para 12; Director of Public Prosecutions v Mngoma [2010 (1) SACR 427](https://www.saflii.org/cgi-bin/LawCite?cit=2010%20%281%29%20SACR%20427) (SCA) para 11; and S v Le Roux & others [2010 (2) SACR 11](https://www.saflii.org/cgi-bin/LawCite?cit=2010%20%282%29%20SACR%2011) (SCA) at 26b-d. 1. Further, the South African courts have extensively addressed the question of sentencing. In S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001), the Supreme Court of appeal of South Africa [Harms, Marais, Cameron JJA Chetty Et Mthiyane AJJA] held as follows: 12. The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject, of course, to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation. 1. Back home, sentencing was recently addressed in the case of *Irene Nduku Ndeto v Republic [2019] KEHC 5547 (KLR)* by Odunga, J, as he then was, as follows: In my view, fairness to the accused where a sentence re-hearing is considered appropriate would require a consideration of the circumstances prior to the commission of the offence, at the time of the trial and subsequent to conviction. The conduct of the accused during the three stages may therefore be a factor to be considered in determining the appropriate sentence. The need to protect society clearly requires the Court to consider the impact of the offender's incarceration, whether beneficial to him and society or not; hence the necessity for considering a pre-sentencing report. 1. The trial court considered that the offence was grave and was characterised by bodily injury to the victim; and the manner in which it was committed using a panga. The weapon used was dangerous, and the injury was inflicted on the head. In other words, this Court appreciates that the circumstances prevailing at the time a sentence is imposed may change as an offender serves the sentence. 2. The sentence imposed has since been fully served. Consequently, the issue of sentence has become moot, and no useful purpose would be served by interfering with it. In the case of [**Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/39/eng%402022-08-08)**,** the Supreme Court [MK Koome, CJ & P, PM Mwilu, DCJ & VP, SC Wanjala, N Ndungu & W Ouko, SCJJ] posited as follows: A number of courts have considered the import of the doctrine of mootness. It is therefore appropriate that we consider comparative jurisprudence in order to appreciate the contours of its application by various courts. The Constitutional Court of South Africa in the case of [National Coalition for Gay and Lesbian Equality and Other v Minister of Home Affairs and Others](http://www.saflii.org/za/cases/ZACC/1999/17.html) (CCT10/99) [1999] ZACC 17 stated as follows in respect to the doctrine:“A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the court is to avoid giving advisory opinions on abstract propositions of law.”[Emphasis added] 45.Similarly, Lenaola SCJ in the case of [Attorney General & 3 others v David Ndii & 73 others](https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/19): [Prof Rosalind Dixon & 7 others (Amicus Curiae)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/8) (SC Petition 12, 11 & 13 of 2021 (Consolidated) [2022] KESCA 8 (KLR) (Constitutional and Human Rights) (31 March 2022) (Judgment) (with dissent), quoted with approval the decision of the High Court of South Africa in [Afriform NPC and others v Eskom Holdings SOC Limited and others](http://www.saflii.org/za/cases/ZAGPPHC/2017/199.html%22%20%5Ct%20%22_blank) 3 All SA 663 (GP) where it stated: “The mootness barrier therefore usually arises from events arising or occurring after an adverse decision has been taken or a lawsuit has got underway, usually involving a change in the facts or the law, which allegedly deprive the litigant of the necessary stake in the pursued outcome or relief. The doctrine requires that an actual controversy must be extant at all stages of review and not merely at the time the impugned decision is taken or the review application is made.” [Emphasis added] 46.The Supreme Court of Canada canvassed the circumstances that render a dispute moot in the case of [Borowski v Canada (Attorney General)](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/421/index.do%22%20%5Ct%20%22_blank) [1989] 1 SCR 342 where it found that: a repeal of a bylaw being challenged; an undertaking to pay damages regardless of the outcome of an appeal; non-applicability of a statute to the party challenging the legislation; or the end of a strike for which a prohibitory injunction was obtained were some of the circumstances that render an appeal moot. The court further devised a two step-analysis to determine whether a matter is moot or not. First, it is necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. 47.The common thread from the above decisions is that a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot. 1. Whether the sentence is reduced or not, it has been served. There is no utility in engaging in an academic exercise. Therefore, appeal on sentence is equally dismissed. ORDER 1. Arising from the foregoing, the court makes the following orders: 2. Appeal on conviction and sentence is dismissed. 3. 14 days right of appeal. 4. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **29th** day of **July,** the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Pro se Appellant Mr. Kihara and Ms. Akinyi for the State/Respondent Court Assistant – Timothy