https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11278

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CRIMINAL APPEAL NUMBER E033 OF 2025** **MOHAMED BISHAR ISSACK………………………………. APPELLANT** **VERSUS** **REPUBLIC……………………………………..…………. RESPONDENT** **(Being an appeal arising from the conviction and sentence delivered on 20.01.2026, by Hon. W.K Cheruiyot (PM) in Moyale MCCR/E006/2025)** **BETWEEN** **REPUBLIC……………………………….…………………..PROSECUTOR** **VERSUS** **MOHAMED BISHAR ISSACK………………………….……...ACCUSED** **JUDGEMENT** 1. **INTRODUCTION** 2. This Appeal arises from the conviction and sentence delivered on 20th January 2026, by **Honourable W.K Cheruiyot (PM) in Moyale Principal Magistrate court MCCR No E061 of 2025** where upon the appellant pleaded guilty, to the offence of causing grievous harm to his 8 years old daughter and was convicted and sentenced to serve a period of fifteen (15) years imprisonment. 3. The background facts hereto were that the appellant herein was arraigned in court on 25.08.2025 and charged with the offence of **causing grievous harm contrary to Section 234 of the Penal code**. The particulars thereof where that on the 20th day of August, 2025 at an unknown time at Banisa location in Banisa sub county within Mandera county, willfully and unlawfully did grievous harm to I.B, a female juvenile aged 8 years. When the plea was read to him in Borana language, which he understood, he pleaded guilty. At that point the court did warm him that he faced a serious offence, which had serious penal consequences. The accused replied and told the trial magistrate that he would not change his plea. 4. The facts were then read out to the accused person, which was that the complainant was his daughter and her step mother had complained to the appellant that he should disciple the said child. The appellant proceeded to pick a metal pipe, covered the child’s mouth to prevent neighbour’s from hearing her screams and proceeded to strike the child severally and inflicted server injuries on both hands, back and she also suffered a broken leg. When the appellant realized the gravity of what he had done, he proceeded to lock the child inside the house and fled. Later the victim was released by her step mother and she shouted for help and was rescued by her neighbours who took her to Banisa hospital for treatment. The P3 form was produced into evidence to confirmed the injuries sustained. 5. The appellant again was asked if the facts are correct and he admitted to the same. He was then convicted on his own plea of guilt. The pre-sentence report was later presented and upon considering the accused mitigation the trial court sentenced the appellant to serve a term of fifteen (15) years imprisonment. 6. The Appellant being dissatisfied with the sentence passed filed this Appeal and raised the following ground of appeal that; 7. ***That the learned trial Magistrate erred in law and fact in imposing a very harsh and excessive sentence without considering the appellants mitigation and the circumstances of the case.*** 8. ***That the learned trial Magistrate failed to consider the appellant when sentencing, as he never wasted courts precious time.*** 9. ***That the Appeal has overwhelming chances of success***. B. **PARTIES’ SUBMISSIONS** 1. The Appellant in his petition of appeal contended that the learned trial magistrate erred in both law and fact by failing to note that the sentence of fifteen (15) years’ imprisonment was harsh and excessive, and further failed to consider his mitigation. He urged that he was a first offender, aged forty-seven years, from a poor background, and a father of two school-going children. He expressed remorse, prayed for forgiveness, and promised not to reoffend. 2. In support of his appeal, he relied on authorities including ***Kichanjele s/o Ndamungu v Republic (1941) 8 EACA 64*, *Opoya v Uganda [1967] EA 752*, and *Shadrack Kogo v Republic, Eldoret Criminal Appeal No. 253 of 2003*,** which affirm that the phrase “shall be liable to” under ***Section 234 of the Penal Code*** denotes a maximum penalty, leaving discretion to impose a lesser sentence. He also cited the Supreme Court of India decision in ***Alister Anthony Pereira v State of Maharashtra*,** emphasizing proportionality in sentencing and the twin objectives of deterrence and correction. He therefore prayed that the sentence be reduced to five (5) years’ imprisonment. 3. The Respondent opposed this appeal and submitted that the plea was unequivocal, the charge and facts having been read to the Appellant in Borana,a language he understood, and he was informed of the consequences of pleading guilty, but maintained his plea and thus was properly sentenced. 4. On sentence, the Respondent contended that the fifteen (15) years imposed was proper, noting that the maximum penalty under Section 234 of the penal code is life imprisonment. The trial court was guided by a victim impact statement which revealed that the complainant was the Appellant’s own eight-year-old child, who sustained permanent injuries. The Respondent urged that the sentence served both deterrent and protective purposes, and placed reliance on ***Javan Omutsotsi v Republic, Criminal Appeal No. E087 of 2025*.** In conclusion, the Respondent urged this Court to find the appeal lacking in merit and to dismiss it. 5. **ANALYSIS AND DETERMINATION** 6. The being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See ***Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) & Shantital M Ruwala versus Republic (1957) EA 570,*** where the court of appeal set out the duties of the first appellant court. 7. This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the Appellant and the respondent Counsel and find that the only issue which arises for determination is whether the sentence passed was proper given the circumstance of this case and/or whether the same was excessive and harsh. 8. On Sentencing, the same is determined at the discretion of the trial court after considering the facts of the case, judiciary sentencing policy guidelines and penalty provided for under the law. 9. The principles guiding interference with sentencing by the appellate court were properly set out in ***S Vrs Malgas (1) SACR 469(SCA) at para 12,*** where it was held that; ***“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate***”. 1. In ***Republic vs Scott (2005) NSWCCA 152 Howie J Grove & Barn J J*** it was stated; **“*There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender.*** 1. In the present case, the trial court considered the seriousness of the offence, the fact that the complainant was the Appellant’s own eight-year-old child, and the victim impact statement which revealed that the injuries that caused maim. The report also indicted that the victim has been subjected to sustained punishment both from the accused and her step mother. Thus, while the Appellant was a first offender and expressed remorse, the trial court was entitled to weigh these mitigating factors against the aggravating circumstances of the offence. The trial court also underscored that this matter involved a vulnerable minor whose welfare, safety, and dignity demanded protection through a sentence that not only punished the offender but also deterred similar conduct against other children. 2. ***Section 234 of the Penal Code*** provides that any person who unlawfully causes grievous harm “***shall be liable to imprisonment for life”***. The sentence of fifteen (15) years’ imprisonment imposed thus was well within the statutory limit of the penalty provided for in law, was proportional and consistent with the objectives of deterrence, retribution, and the protection of vulnerable children. The Appellant’s mitigation was duly considered, but the seriousness of the offence, the permanent injuries inflicted, and the overriding best interests of the child outweighed the mitigated factors advanced. 3. It has therefore not been shown that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle in passing the impugned sentence. Further, even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone is not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. See Court of Appeal Judgement in ***Bernard Kimani Gacheru vs. Republic [2002] eKLR*** 4. **DISPOSITION** 5. The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against sentence fails and is hereby dismissed. 6. Right of Appeal 14 days. 7. It is so ordered. Judgment read, signed and delivered in Open Court at **MARSABIT** this 23rd day of **JULY** 2026. **FRANCIS RAYOLA OLEL** **JUDGE** In the presence of:- ………………………………………..Appellant ……………………………………..For O.D.P.P …………………………………..Court Assistant