[2017] KEHC 2336 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO. 32 OF 2017

LAWRENCE OMONDI OWUOR..................................... APPELLANT

VERSUS

REPUBLIC........................................................................... REPUBLIC

(From the original conviction and sentence in Criminal case No. 462 of 2015 of the Chief Magistrate’s Court at Busia by Hon. J.N Maragia– Resident Magistrate)

JUDGMENT

LAWRENCE OMONDI OWUOR,the appellant herein, was convicted for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code.

The particulars of the offence were that on 8th March 2015 atLUGULU location BUTULA District ofBUSIA County, unlawfully assaulted BERINE ATIENO occasioning her actual bodily harm.

He was sentenced to serve 2 years imprisonment. He has appealed against both conviction and sentence.

The appellant was represented by Mr. Wycliffe Okutta, learned counsel. He raised four grounds of appeal as follows:

1. That the learned trial magistrate erred in law and in fact by shifting the burden of proof to the appellant.

2. That the learned trial magistrate erred in law and in fact by relying on inadmissible evidence.

3. That the learned trial magistrate erred in law and in fact by convicting the appellant on unproven charge.

4. That the learned trial magistrate erred in law and in fact by giving a harsh sentence without an option of a fine.

The state opposed the appeal through Mr. Owiti, the learned counsel.

The facts of the prosecution case were briefly as follows:

It was a Sunday and the complainant herein went to Jerusalem church in Lugulu. As worship was in progress, the complainant fell down unconscious, possibly from an epileptic seizure. Mary Akinyi (PW2) testified that the complainant suffered from epilepsy. The accused who was at the pulpit went to her with some paraffin and a candle and burnt her face.

In his defence the appellant denied any involvement in the offence.

This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.

Though the appellant in his grounds of appeal contended that the learned trial magistrate shifted the burden of proof to him, no such instance was pointed out. Upon my perusal of the proceedings, and the judgment, I did not come across anything to support the complaint. I also did not come across any inadmissible evidence.

It is trite law that a fact can be proved by the evidence of a single witness. In the case of KIILU & ANOTHER V. REPUBLIC [2005] 1 KLR 174 the Court of appeal re-echoed this legal position when it stated:

Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error.

In the instant case, the circumstances obtaining at the time of the incident were favourable. This was a case of recognition. The appellant was the one ministering and the evidence of Mary Akinyi (PW2) was clear as to what transpired. The conviction was safe.

This it would appear was a religious fanaticism. Though the same is deprecated, the trial magistrate ought to have been persuaded to tamper justice with mercy. I therefore set aside the sentence of two years imprisonment and substitute it with a fine of Kshs.60, 000/= (sixty thousand Kenya shillings) or serve 12 months imprisonment in default. To that extent the appeal succeeds.

DELIVEREDandSIGNEDatBUSIA this 7th dayof November, 2017

KIARIE WAWERU KIARIE

JUDGE