[2023] KEHC 24931 (KLR)
The court found that the charges for grievous harm and resisting arrest arose from the same facts and incident, rendering the second count duplex and defective. The trial magistrate erred in convicting on both counts, and the conviction and sentence for resisting arrest were quashed. The conviction for grievous harm...
Source-derived case information.
- Citation
- [2023] KEHC 24931 (KLR)
- Parties
- Appellant: Elijah Mwarimbo Mangare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E061 of 2021
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed.
- Judges
- GMA Dulu
- Legal Topics
- Grievous Harm, Resisting Arrest, Covid 19 Regulations, Duplicity of Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Mwarimbo Mangare
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for both grievous harm and resisting arrest was defective for duplicity.
- 2 Whether the sentence imposed for grievous harm was lawful and proportionate.
- 3 Whether the conviction and sentence for violation of Covid-19 rules was proper.
Ratio Decidendi
The court found that the charges for grievous harm and resisting arrest arose from the same facts and incident, rendering the second count duplex and defective. The trial magistrate erred in convicting on both counts, and the conviction and sentence for resisting arrest were quashed. The conviction for grievous harm was upheld as it was well grounded on the evidence. However, the default prison sentence of four years for failure to pay the fine was unlawful, as Section 28 of the Penal Code limits such default sentences to 12 months for fines exceeding Kshs. 50,000. The sentence was accordingly reduced. The conviction and sentence for violation of Covid-19 rules were upheld. Given the time...
Court Disposition
Appeal partially allowed.
Orders
- Conviction and sentence for count 2 (resisting arrest) quashed and set aside.
- Conviction for count 1 (grievous harm) upheld; default prison sentence reduced to 12 months imprisonment.
Full Case Text
Judgment text and source record
27 paragraphs
Mangare v Republic (Criminal Appeal E061 of 2021) [2023] KEHC 24931 (KLR) (7 November 2023) (Judgment)
Neutral citation: [2023] KEHC 24931 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Appeal E061 of 2021
GMA Dulu, J
November 7, 2023
Between
Elijah Mwarimbo Mangare
Appellant
and
Republic
Respondent
(From the conviction and sentence in Criminal Case No. E051 of 2021 at Taveta Law Courts delivered on 1st October 2021 by Hon. Khapoya S. Benson (PM)
Judgment
1. The appellant was convicted after a full trial of causing grievous harm contrary to Section 234 of the Penal Code, resisting arrest contrary to Section 103(a) of the National Police Service Act 2011, and failure to wear a facemask contrary to Section 6(1)(b) as read with rule 2 of the Public Health Act Covid-19 restriction of movement rules.
2. He was sentenced to a fine of Kshs. 1,000,000/= in default 4 years imprisonment, fine of Kshs. 50,000/= in default 1 year imprisonment, and fine of Kshs. 2,000/= in default 2 months imprisonment respectively.
3. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal challenging both conviction and sentence.
4. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant, as well as the submissions filed by the Director of Public Prosecutions. I note that the Director of Public Prosecutions has submitted that the 2nd count of resisting arrest is duplex to count 1, as the facts and incident are the same.
5. I also note that the Director of Public Prosecutions has submitted that for count 1 for grievous harm, the appellant having served 2 years imprisonment, such is sufficient punishment and that he should be released.
6. I agree with learned Prosecuting Counsel that the facts for count 1 and count 2 were the same, and could easily confuse the appellant in his defence. The charges were thus defective for duplicity and the trial Magistrate should have either disallowed one of those charges, or acquitted the appellant on one of those charges. I will thus quash the conviction and sentence on count 2.
7. With respect to count 1 for grievous harm, the conviction in my view was well grounded, and the conviction will be sustained.
8. The default prison sentence on this count was however excessive and unlawful as Section 28 of the Penal Code (Cap.63) provides that the default prison sentence for a fine exceeding Kshs. 50,000/= is 12 months imprisonment only. I will thus reduce the sentence for grievous harm to 12 months imprisonment.
9. Consequently and for the above reasons, I quash the conviction for count 2 for resisting arrest and set aside the sentence imposed therein.
10. As for count 1 for grievous harm, I uphold the conviction but reduce the default prison sentence to 12 months imprisonment. I uphold the conviction and sentence on count 3 for violation of Covid-19 Rules.
11. The appellant having been sentenced in October 2021, I order that he be released from custody forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED THIS 7TH DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-AppellantMr. Sirima for State