https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9902

Lengupae v Republic (Criminal Appeal E015 of 2024) [2026] KEHC 9902 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 9902 (KLR) Republic of Kenya In the High Court at Maralal Criminal Appeal E015 of 2024 AK Ndung'u, J July 8, 2026 Between Lucy Lengupae Appellant and Republic Respondent Judgment 1.The Appellant was charged with the offence of grievous harm contrary to Section 234 of the penal code. The particulars were that on 30th April, 2024 at Ngutoto area of Samburu Central sub county in Samburu county, unlawfully did grievous harm Nasaas Joyce Lepiya by pouring acid on the complainant. 2.The Applicant pleaded guilty to the charges, and the case proceeded to full trial, in which the prosecution called 4 witnesses. At the close of the prosecution’s case, the trial court found the Appellant as having a case to answer and she was put on her defense. She was convicted on the main charge and sentenced to 15 years imprisonment on 28th day of October, 2025. 3.Dissatisfied with the decision, The Appellant filed the Appeal against the conviction and sentence, premised on the following amended grounds;1.That the learned magistrate erred in law and in facts (sic) by failing to appreciate that the prosecution case was not proved beyond any reasonable doubt as prescribed by law.2.The Learned Magistrate erred in law and facts by imposing a descriptive sentence but failed to appreciate that the trial was violated.3.That the learned magistrate erred in law and in facts by failing to consider the Appellant’s defence of alibi. 4.The appeal was canvassed by way of written submissions. In her submissions, the Appellant emphasized the requirement in law for prove beyond reasonable doubt in a criminal trial. That the prosecution was bound to prove whether or not grievous harm was disclosed and whether the offence was proved beyond reasonable doubts. 5.It is urged that the evidence of PW1 was not corroborated since PW1 stated that she was alone at the time of the incident. Regarding sentence, it is submitted that courts are required to to pay attention to individual aspects of a case while sentencing at para 70-71. Reliance was placed on the case of Alister A. Othony Pereira vs State of Mahareshtra. The court is invited to apply the Sentencing Guidelines and Article 50(2)(p). 6.The Appellant submits that the trial was not fairly conducted. That the prosecution amended without her being informed. the charges after standing down a witness citing typographical errors without her being informed. It is urged that the Appellant was unrepresented and the court ought to have been solicitous of the Appellant’s welfare and the case of Ndegwa vs Republic is cited in that regard. 7.The prosecution submitted that 8.A recap of the evidence at trial is as follows. PW1 testified that she was at her rented house when the Appellant who was her land lady came and shouted at her to move out of the rented premises. The Appellant then moved to her house and changed her mind now telling PW1 that she could continue renting the house. PW1 responded that she had made up her mind to leave. 9.PW1 added that the Appellant pleaded with her to come out for a conversation to settle the matter amicably. No sooner had PW1 stepped out of the door than the Appellant poured strong acid on PW1’s left arm. This attack was unexpected. The Appellant also splashed acid on her left side of face scalding her left ear., neck and shoulder. The injuries were noted by the court as visible. PW1 pushed the Appellant away and some acid splashed on her hand but she spend off on seeing that PW1 had been severely burnt and her clothes corroded. 10.PW1’s sister came along and found her scorched by the acid. A man poured water on the victim but to no effect as it was too late. The matter was reported at Kirisia police post and the complainant sought treatment at Samburu County Referral Hospital. A P3 form was issued and PW1 identified the same in court. PW1 added that the incident was in daylight at 8am and she identified the Appellant as her attacker. 11.PW2 met PW1 who told him that she had been scalded by the Appellant, her Land Lady. He escorted her to the police station where a report was lodged and then to hospital where she was treated. 12.PW, a clinical officer, examined the complainant and filled a P3 form. The patient suffered 2nd degree chemical burn secondary to assault. There were physical burns on the left neck side and around the wrist and burn marks on the left thigh. The degree of injury was grievous harm. It was a permanent disability of her organs. 13.PW4, the investigating officer received PW1 when she presented a P3 form. Witness statements had been recorded by PC Gabei. PW4 took part in the arrest of the accused who on being interviewed, claimed she was the victim. He produced an exhibit memo form and photographs. 14.On being placed on her own defence, the Appellant gave a sworn statement and called 1 defence witness. In her evidence, she stated that PW1 was a tenant in her plot but had defaulted on rent. She found that she had damaged the house. She ordered her tomove out in peace but she refused. She went away and came with a cup containing a liquid. She tried to pour it on her but she blocked her. Most of the liquid poured on PW1 and a little on her She got burnt on the hand, clothes and back. She ran off to get medical attention and reported to the police. On cross examination, she confirmed she had no P3 form to show treatment and no OB entry of a report to the police. 15.DW2 testified that he was away at work when the incident occurred. He was told on his return that the rent defaulter had attempted to pour acid on the landlady only to be burnt by her own acid. 16.This being the first appeal, it is by way of a retrial and parties are entitled to this court’s revaluation, reanalysis and reconsideration of the evidence and its own decision on that evidence. The court should however bear in mind that it did not see the witness testify and give due allowance for that. (See Okeno v Republic [1972] EA 32). 17.This principle is buttressed in the decision in Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal held that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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.” 18.The burden of proof in criminal cases is well settled. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that to for a conviction to lie in a Criminal case, the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic [2014] eKLR:“[I]t is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa v R, [2013] eKLR.” 19.In the famous case of Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt:“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.” 20.In Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” 21.I have had occasion to consider the grounds of appeal, the evidence on record and submissions made as well as the applicable law. In that voyage, I have borne in mind that I did not have the advantage of seeing nor hearing the witnesses testify and I have put that into account. Of determination is whether the prosecution proved its case to the required degree, and, if in the affirmative, whether the sentence meted out was appropriate in the circumstances. 22.The Appellant's principal complaint is that the prosecution case rested substantially on the evidence of PW1 and that her testimony was not corroborated by any independent eye witness. It is therefore necessary to determine whether the evidence of PW1 was credible and whether, in the circumstances of this case, it was sufficient to sustain a conviction. 23.The law is settled that there is no general requirement that the evidence of a single witness must be corroborated before a conviction can be founded upon it. Under Section 143 of the Evidence Act, no particular number of witnesses is required for the proof of any fact. What is required is that the court must carefully evaluate such evidence and satisfy itself that it is truthful, credible and free from the possibility of error. In Abdalla bin Wendo & Another v Republic (1953) 20 EACA 166, the former Court of Appeal for Eastern Africa held that although a fact may be proved by the testimony of a single witness, the court should exercise caution, particularly where conditions for identification are difficult. Where the court is satisfied that the circumstances were favourable and the witness is truthful, a conviction may safely be founded on such evidence. 24.Similarly, in Maitanyi v Republic [1986] KLR 198, the Court of Appeal held that while evidence of a single identifying witness must be tested with the greatest care, a conviction may nevertheless be sustained where the court is satisfied that the circumstances of identification were free from the possibility of error. The Court reiterated the same position in Anjononi & Others v Republic [1980] KLR 59, where it held that recognition by a witness who already knows the accused is generally more reliable than identification of a stranger. 25.In the present case, PW1 knew the Appellant very well before the incident. The Appellant was her landlady and there had been a disagreement regarding rent and vacating the rented premises. The attack occurred at about 8.00 a.m. in broad daylight outside PW1's house after the Appellant had called her out under the pretext of resolving their dispute amicably. There was therefore no possibility of mistaken identity. Indeed, the defence did not dispute that the Appellant and PW1 were together at the scene. The only issue in dispute was who was the aggressor. 26.I have carefully re-evaluated PW1's testimony. It was coherent, consistent and remained unshaken during cross-examination. Her account of the assault was detailed and was immediately followed by her reporting the matter to the police and seeking medical attention. Her evidence was further corroborated by the medical evidence of PW3, who confirmed that she had sustained second-degree chemical burns affecting her neck, wrist and thigh, resulting in grievous harm and permanent disability. The injuries observed by the clinical officer were also consistent with the injuries that were visible to the trial court during the hearing. The medical evidence therefore lends significant support to PW1's narration of events and dispels any suggestion that the injuries were fabricated or self-inflicted. 27.Although PW2 did not witness the attack, his evidence was consistent with PW1's account. He found PW1 shortly after the incident with fresh burn injuries and accompanied her to the police station and hospital. His testimony was therefore relevant in confirming the immediate aftermath of the assault and the prompt report made by the complainant. 28.On the other hand, the defence advanced by the Appellant does not withstand scrutiny. Her version was that it was PW1 who attempted to pour acid on her and that PW1 accidentally burnt herself after the Appellant blocked the attack. Had that indeed been the case, one would reasonably expect the Appellant to have promptly reported the alleged attack to the police and to have sought medical treatment for the burns she claimed to have sustained. She conceded during cross-examination that she neither produced a P3 Form nor any treatment notes to demonstrate that she had suffered injuries. Equally, she produced no Occurrence Book (OB) extract or any evidence showing that she reported the alleged offence to the police. Those omissions considerably weaken her assertion that she was in fact the victim. 29.The evidence of DW2 equally adds no weight to the defence. He candidly admitted that he was away at work when the incident occurred and only learnt about it upon his return. His testimony was therefore entirely based on what he had been told by others. It amounted to hearsay evidence and could not rebut the direct testimony of PW1, which was supported by medical evidence and the surrounding circumstances. 30.Having independently re-evaluated the entire evidence, I am satisfied that the trial court properly believed PW1 for good reason. The absence of an independent eye witness did not render the prosecution case deficient. The conviction was founded on credible and reliable evidence of recognition by a single witness, whose account was materially corroborated by medical evidence and the surrounding circumstances. Conversely, the Appellant's defence was unsupported by any independent evidence and was rightly rejected by the trial court as an afterthought. I therefore find that the prosecution proved the offence of grievous harm contrary to Section 234 of the Penal Code beyond reasonable doubt. 31.On sentence, the principles governing appellate interference are equally well settled. Sentencing is a matter of judicial discretion and an appellate court will not interfere merely because it would have imposed a different sentence. It may only interfere where the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, or where the sentence is manifestly excessive or manifestly lenient. See Wanjema v Republic [1971] EA 493. 32.The record demonstrates that the learned trial magistrate delivered a detailed sentencing ruling in which the objectives of sentencing were comprehensively considered. The court expressly considered the seriousness of the offence, the permanent injuries suffered by the complainant, the mitigation offered by the Appellant, and the need for deterrence, denunciation, rehabilitation and protection of the public. In doing so, the trial court relied on David Kariuki Wachira v Republic [2017] KEHC 9703 (KLR) and Kadika v Republic [2024] KEHC 15546 (KLR), thereby applying the applicable sentencing principles. 33.The offence under Section 234 of the Penal Code attracts a maximum sentence of life imprisonment. In view of the grave and permanent injuries inflicted upon the complainant through the use of acid, the sentence of fifteen (15) years' imprisonment cannot be said to be harsh, excessive or founded on any erroneous principle. I am satisfied that the trial court exercised its sentencing discretion judiciously and in accordance with the law. Consequently, there is no legal basis upon which this Court can interfere with the sentence imposed. 34.In the result, I find that both the conviction and sentence were safe. The appeal against conviction and sentence lacks merit and is hereby dismissed in its entirety. The conviction is upheld and the sentence of fifteen (15) years' imprisonment is affirmed. DATED SIGNED AND DELIVERED VIRTUALLY THIS 8TH OF JULY 2026A.K. NDUNG’UJUDGE