[2022] KEHC 14671 (KLR)
The High Court found that the evidence presented by the prosecution, including the testimony of the complainant and an eyewitness, was credible and sufficient to support the conviction for assault causing actual bodily harm. The court noted that any discrepancies in the prosecution's case were minor and did not...
Source-derived case information.
- Citation
- [2022] KEHC 14671 (KLR)
- Parties
- Appellant: Alfred Odhiambo Mireri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E019 of 2022
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Judges
- KW Kiarie
- Legal Topics
- Assault Causing Actual Bodily Harm, Criminal Sentencing, Evidence Evaluation, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alfred Odhiambo Mireri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction was based on sufficient and credible evidence.
- 2 Whether the sentence imposed was harsh or manifestly excessive in the circumstances.
Ratio Decidendi
The High Court found that the evidence presented by the prosecution, including the testimony of the complainant and an eyewitness, was credible and sufficient to support the conviction for assault causing actual bodily harm. The court noted that any discrepancies in the prosecution's case were minor and did not affect the outcome. The appellant's right to remain silent was respected, but no exculpatory evidence was presented. Regarding sentence, the court held that the trial magistrate exercised proper discretion and that the sentence of one year imprisonment was fair and not manifestly excessive, as the assault was unprovoked and involved a threat to kill. The appeal against both...
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of one year imprisonment are upheld.
Full Case Text
Judgment text and source record
27 paragraphs
Mireri v Republic (Criminal Appeal E019 of 2022) [2022] KEHC 14671 (KLR) (3 November 2022) (Judgment)
Neutral citation: [2022] KEHC 14671 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Criminal Appeal E019 of 2022
KW Kiarie, J
November 3, 2022
Between
Alfred Odhiambo Mireri
Appellant
and
Republic
Respondent
(From the original conviction and sentence in Criminal case No. 77 of 2020 of the Senior Principal Magistrate’s Court at Oyugis by Hon. Celesa Okore– Principal Magistrate)
Judgment
1. Alfred Odhiambo Mireri was convicted of the offence of assault causing actual bodily harm contrary to section 251 of the Penal code.
2. The particulars of the offence were that on 27th October, 2020 at Nyalenda Shopping Centre in Rachuonyo South Sub County of Homa Bay County, willfully and unlawfully assaulted Thomas Odhiambo Ojowi occasioning him actual bodily harm.
3. The appellant was sentenced to serve one year imprisonment. He was aggrieved and has appealed against both conviction and sentence. He raised seven grounds of appeal which can be distilled as follows:a.That the trial magistrate based her conviction on insufficient and contradictory evidence.b.That the trial magistrate meted out a harsh sentence in the circumstances.
4. The appeal was opposed by the state through Mr. Ochengo, learned counsel on grounds:a.That the offence was proved.b.That conviction and sentence were proper.
5. 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.
6. Thomas Odhiambo Ojowi (PW1) testified that the appellant is his cousin. On the material day at about 8 p.m. while he was coming from a neighbor’s shop, he met the appellant outside his (PW1’s) shop and the latter told him he was going to kill him. He proceeded to cut him with a machete. He said that the place was well lit with solar lights.
7. Washington Odhiambo Okumu (PW2) testified that the complainant had left him in his shop as he went to a neighbour’s shop. He was attracted by the complainant’s distress cry. The appellant said he must kill the complainant when he asked him why he was killing him. He was with the complainant’s brother and both rushed out. They saw the appellant armed with a machete and on seeing them, he disappeared into darkness. The complainant was bleeding from the hand.
8. After the close of the prosecution case the appellant opted to remain silent. This is his constitutional right.
9. Though the appellant has contended that there were contradictions in the prosecution case, what I note are minor discrepancies that cannot affect the outcome of the case.
10. It is trite law of practice that an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances as were spelled out in the case ofNilsson vs. Republic [1970] E.A. 599,601 as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case.R v Shershewsity (1912) C.CA 28 T.LR 364.
11. Prior to the complainant being cut, the appellant had declared that he was going to kill him. This was without any provocation. I therefore find that the sentence meted out was fair in the circumstances of this case. I accordingly dismiss the appeal.
DELIVERED AND SIGNED AT HOMA BAY THIS 3RD DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE