https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12702

Okeyo v Republic (Criminal Appeal E017 of 2026) [2026] KEHC 12702 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12702 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E017 of 2026 ACA Ong’injo, J July 30, 2026 Between Mavuno Okeyo Appellant and Republic Respondent (Being an appeal from the judgment and sentence of Hon. Oruo PM in Rongo Criminal Case No. E 182 of 2024 delivered on 25th March 2026) Judgment 1.The Appellant herein Mavuno Okeyo, was charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code under Count I. It was alleged that on 13th March 2024, at Sony Primary School in Awendo Sub-County within Mogori, he willfully and unlawfully assaulted Roney Simon, thereby occasioning her actual bodily harm. 2.Under Count II, the Appellant was charged with the offence of threatening breach of peace contrary to Section 95 (1) (b) of the Penal Code. It was alleged that on 13th March 2024, at Sony Primary School in Awendo Sub-County within Migori County, created a disturbance in a manner likely to cause a breach of peace by breaking into the said school and beating Roney Simon. 4.The Appellant pleaded not guilty to the charge and a full trial was conducted. The Prosecution called four (4) witnesses in support of its case and that at the close of the Prosecution’s case, the Trial Magistrate found that the Respondent had established a prima facie case against him to warrant him to be placed on his own defence. He was duly placed on his defence. 5.The Appellant gave a sworn statement wherein she vehemently denied the charges. In its judgement delivered on 25th March 2026, in the absence of the accused person who had absconded the court, the Trial Court convicted him on both Counts and sentenced him to serve five (5) imprisonment. 6.Dissatisfied with the judgement and sentence, the Appellant moved this Court vide a Memorandum of appeal dated 30th March 2026 citing 6 (6) grounds of appeal as followsl.The Learned Trial Magistrate erred in law by proceeding to sentence the Appellant in his absence, thereby denying him the mandatory constitutional and statutory right to offer a statement in mitigation before the sentence was passed.2.The Learned Trial Magistrate erred by imposing the maximum custodial sentence of five (5) years, which is grossly disproportionate to the nature of the offence and the circumstances of the case,3.The Trial Court erred by failing to adhere to the Judiciary Sentencing Policy Guidelines, which require the court to consider the Appellant's status as a first-time offender and the minor nature of the injuries sustained (minor swelling).4.The Learned Magistrate erred in law and fact by failing to properly evaluate the medical evidence on record, which indicated only minor swelling, a factor that should have led to a non-custodial sentence or a conviction for a lesser offence.5.The Trial Court erred by failing to accord sufficient weight to the mitigating factor of provocation, noting the Appellant acted out of distress upon finding his child crying after being assaulted.6.The conviction is unsafe and cannot be sustained in law as the evidence on record did not meet the standard of proof beyond reasonable doubt for the specific charge of Assault Causing Actual Bodily Harm. 6.He also and prayed that the conviction and sentence be set aside. 7.Vide Court directions dated 29th June 2026, the appeal was canvassed by way of written submissions. 8.In his submissions dated 14th July 2026, the Appellant stated that the proceedings leading to sentence were fundamentally flawed, that material mitigating circumstances were ignored and that the sentence imposed was manifestly harsh and excessive in the circumstances of the case. 9.It was his further submission that the decision of the trial court to convict and sentence him in in his absence. That the Appellant had been informed that judgment would be delivered on 26th March 2026. Acting upon that information, he attended court on that date only to discover that judgment had been delivered a day earlier on 25th March 2026 and that he had already been convicted and sentenced to serve five years imprisonment. That his absence was not deliberate nor calculated and that the Trial Court proceeding with judgement in his absence denied him an opportunity to mitigate his sentence. 10.He relied in the Supreme Court in Francis Karioko Muruatetu & Another v Republic & 5 Others 120171 eKLR emphasized that mitigation is an intega} component of a fair trial and forms part of the constitutional protections afforded to an accused person before sentence is imposed. The Court underscored that mitigation enables a court to individualize sentence by taking into account both the circumstances of the offender and those of the offence. 11.Edwin Otieno Odhiambo v Republic 120091 eKLR, the Court emphasized that failure by a court to consider mitigation undermines the sentencing process and may result in an inappropriate sentence being imposed. 12.The Appellant submitted that the trial court imposed a manifestly excessive sentence after failing to consider material mitigating factors. Counsel argued that the prosecution's own evidence showed the Appellant acted spontaneously after finding his children injured and distressed, rather than with premeditation. It was further submitted that the Appellant was a first offender, expressed remorse, cooperated during the trial, and was denied an opportunity to mitigate before sentence. 13.The Appellant also contended that the complainant sustained only minor injuries, making the maximum sentence of five years' imprisonment under section 251 of the Penal Code disproportionate. Relying on Wanjema v Republic and Bernard Kimani Gacheru v Republic, counsel argued that the trial court overlooked relevant mitigating factors and imposed a manifestly harsh sentence. The Court was therefore urged to set aside the sentence and substitute it with a non-custodial or lesser sentence, or alternatively remit the matter for resentencing after mitigation. 14.In their submissions dated 25th June 2026, The Respondent submitted that the appeal lacks merit and should be dismissed. It was argued that the conviction was safe, as the prosecution proved the offence of assault causing actual bodily harm beyond reasonable doubt through consistent witness testimony corroborated by medical evidence. The Respondent maintained that the complainant's injuries satisfied the legal threshold for actual bodily harm. 15.On sentence, the Respondent contended that the five-year imprisonment term was lawful, being within the maximum sentence prescribed under section 251 of the Penal Code, and that the trial court properly exercised its sentencing discretion. It was further submitted that the mitigating factors relied upon by the Appellant did not preclude the imposition of a custodial sentence. 16.Regarding the complaint that the Appellant was sentenced in absentia, the Respondent argued that the Appellant could not rely on his own absence to challenge the proceedings and that, in any event, if the Court finds that he was denied an opportunity to mitigate, the appropriate remedy would be resentencing rather than quashing the conviction. 17.The Respondent therefore urged the Court to dismiss the appeal against both conviction and sentence and uphold the judgment of the trial court. Analysis and determination 18.This being a first appeal, this Court is enjoined to re-evaluate the entire evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify, as was stated in Okeno v Republic [1972] EA 32. 19.The Appellant was convicted of the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The prosecution was therefore required to prove beyond reasonable doubt that the Appellant unlawfully assaulted the complainant and that the assault occasioned actual bodily harm. 20.There is no dispute that the complainant sustained injuries. PW7, the Clinical Officer, testified that upon examining the complainant she observed swelling on the left temporal region of the head and a sore nose resulting from blunt force trauma. She completed the P3 Form and classified the injuries as harm. That evidence was neither shaken on cross-examination nor rebutted by contrary medical evidence. It therefore sufficiently established the ingredient of actual bodily harm as contemplated under section 251 of the Penal Code. 21.The principal issue is whether the prosecution proved that it was the Appellant who inflicted those injuries. 22.The complainant (PW3), although giving unsworn evidence after a voire dire examination, gave a coherent account of the events. He testified that after a fight involving the Appellant's son, the Appellant confronted him and slapped him on the face, causing injuries to his ear, nose and tooth. His account was corroborated by PW4, an eyewitness, who testified that he saw the Appellant slap the complainant, causing him to fall to the ground and bleed. PW2 also testified that immediately after the incident she found the complainant bleeding from the nose, while PW1 and PW5 confirmed that the matter was promptly reported to the school administration and thereafter to the police. 23.The consistency of these witnesses on the material fact that the complainant was assaulted by the Appellant lends credibility to the prosecution case. Although PW1 did not witness the assault herself, her testimony was relevant in explaining the immediate aftermath of the incident and the report made to her. Similarly, PW5's evidence was corroborative of the report made to the school administration. 24.The Appellant's defence was that he merely cautioned the complainant after learning that his own son had been assaulted and denied assaulting the complainant. However, that defence was displaced by the direct evidence of PW3 and PW4, which was in turn corroborated by the medical evidence. The learned trial magistrate cannot therefore be faulted for rejecting the Appellant's denial. 25.The Appellant has argued that he acted after finding his child crying and injured and that the prosecution witnesses themselves corroborated that fact. Indeed, the evidence shows that the Appellant's child had been involved in a fight with the complainant and another pupil shortly before the assault. However, that circumstance, while relevant in mitigation, did not afford the Appellant legal justification to physically assault a minor. The law provides lawful avenues for addressing grievances involving pupils, including reporting the matter to teachers or the school administration. Resorting to violence against a child amounted to an unlawful assault. 26.The Appellant also pointed to inconsistencies in the prosecution evidence, particularly whether he lawfully entered the school or broke into the compound. PW1 and PW5 testified that the Appellant was at the school attending a Board of Management meeting, whereas PW6 stated that he broke into the school compound. 27.This inconsistency does not, in my view, go to the root of the prosecution case. Whether the Appellant entered the school lawfully or unlawfully did not affect the central issue of whether he assaulted the complainant. The contradiction relates only to the circumstances of his presence at the school and not to the act of assault itself. It is well settled that not every inconsistency is fatal to the prosecution case; only material contradictions that create reasonable doubt warrant interference with a conviction. 28.Upon my own evaluation of the evidence, I am satisfied that the prosecution established beyond reasonable doubt that the Appellant unlawfully assaulted the complainant and thereby occasioned him actual bodily harm. Consequently, the conviction was safe. Whether the Appellant was denied the right to mitigate 29.The Appellant contends that the trial court violated his constitutional right to fair trial and mitigation by convicting and sentencing him in his absence. He submits that he was informed and he attended court on 26th March 2026 believing that judgment would be delivered on that date, only to discover that it had been delivered a day earlier on 25th March 2026. 30.The proceedings reveal that the date for delivery of judgment was taken on 21st January 2026 in the presence of the Appellant. He was therefore fully aware of the date when judgment was to be delivered. Despite having notice, he failed to attend court on the appointed day without offering any explanation for his absence. 31.Moreover, the record discloses that this was not the first occasion on which the Appellant had failed to attend court. On 15th May 2025, he absented himself from the proceedings, prompting the trial court to issue a warrant of arrest. The warrant was subsequently lifted after the trial court gave him the benefit of the doubt and allowed him to continue participating in the proceedings under the bail terms. Despite that indulgence, the Appellant again failed to attend court on the date fixed for judgment. 32.In those circumstances, I am unable to accept the Appellant's assertion that he was denied an opportunity to mitigate. Rather, it is evident that he voluntarily absented himself from court and thereby forfeited the opportunity to address the court in mitigation. 33.While mitigation is an important component of the sentencing process, as emphasized by the Supreme Court in Francis Karioko Muruatetu & Another v Republic & 5 Others [2017] eKLR, an accused person who has been duly notified of the proceedings cannot deliberately absent himself and thereafter complain that he was denied the right to mitigate. A litigant cannot benefit from his own default. The trial court cannot be faulted for proceeding to conclude the matter where the Appellant, despite having notice, chose not to attend. 34.I therefore find that the Appellant was not denied his constitutional right to mitigation. The omission to mitigate resulted from his own conduct and not from any procedural impropriety on the part of the trial court. 35.That said, the fact that the Appellant forfeited his right to mitigate does not preclude this Court from considering whether the sentence imposed was appropriate. The question whether the maximum sentence of five years' imprisonment was proportionate to the circumstances of the offence remains a separate issue for determination on appeal. 36.The principles governing interference with sentence by an appellate court are well settled. In Wanjema v Republic [1971] EA 493, the Court held that an appellate court may interfere where the trial court acted on a wrong principle, overlooked material factors or imposed a sentence that is manifestly excessive in the circumstances. The Court of Appeal reiterated the same principles in Bernard Kimani Gacheru v Republic [2002] eKLR. 37.There is no dispute that the sentence of five (5) years' imprisonment imposed by the trial court was lawful, section 251 of the Penal Code prescribing a maximum sentence of five years. However, the mere fact that a sentence falls within the statutory limit does not necessarily render it appropriate. Sentencing is a judicial discretion that must be exercised judiciously, taking into account the circumstances of the offence, the offender and the objectives of sentencing. 38.Even so, this Court is entitled to consider whether the sentence imposed was proportionate. 39.The medical evidence adduced by PW7 established that the complainant sustained swelling on the left temporal region and a sore nose. The injuries were classified as harm, the lowest category of injury under the Penal Code. There was no evidence of fractures, permanent disability, prolonged hospitalization or life-threatening injuries. 40.Further, the evidence disclosed that the incident arose after the Appellant found his own child crying following an altercation with fellow pupils. Indeed, PW1 confirmed that the Appellant explained that his child had been assaulted by other pupils before he confronted the complainant. While these circumstances did not justify the assault, they provide the context in which the offence was committed and bear upon the Appellant's degree of moral blameworthiness. 41.Although the assault was committed against a minor, which is undoubtedly an aggravating factor, this court is not persuaded that the circumstances of this case warranted imposition of the maximum sentence provided by law. Maximum sentences are generally reserved for the most serious manifestations of an offence or where significant aggravating circumstances exist. The record before this Court does not disclose such exceptional circumstances. 42.It is therefore this court’s view that the sentence of five years' imprisonment was manifestly excessive and failed to reflect the principle of proportionality that underpins sentencing. 43.Accordingly, the appeal of sentence is allowed. This Court set aside the sentence of five (5) years' imprisonment imposed by the trial court and substitute it with a fine of Kshs. 50,000/= in default the Appellant to serve one (1) year's imprisonment. The sentence to run from 25th March 2026. Right of appeal 14 days explained.It so ordered. DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH DAY OF JULY, 2026.ANNE ONG’INJOJUDGEIn the presence of:-