[2023] KEHC 20604 (KLR)
The court found that, given the complainant's unequivocal affidavit expressing forgiveness and a desire for reconciliation, and her confirmation of this position in open court, it was appropriate to facilitate reconciliation between the appellant and the complainant, who are in a family relationship. In the spirit...
Source-derived case information.
- Citation
- [2023] KEHC 20604 (KLR)
- Parties
- Appellant: Franco Muchika Muchera; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 37 of 2019
- Procedural Posture
- Criminal Appeal / Ruling on Consolidated Appeals Against Conviction and Sentence
- Outcome
- Appeals allowed; convictions quashed and sentences set aside to facilitate reconciliation.
- Judges
- WM Musyoka
- Legal Topics
- Assault, Grievous Harm, Reconciliation, Appeal Against Conviction, Sentence Quashing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franco Muchika Muchera
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Consolidated Appeals Against Conviction and Sentence
Legal Issues
- 1 Whether the appeals against conviction and sentence for assault and causing grievous harm should be allowed in light of the complainant's affidavit seeking reconciliation.
- 2 Whether the court should facilitate reconciliation between the appellant and the complainant under Article 159 of the Constitution.
Ratio Decidendi
The court found that, given the complainant's unequivocal affidavit expressing forgiveness and a desire for reconciliation, and her confirmation of this position in open court, it was appropriate to facilitate reconciliation between the appellant and the complainant, who are in a family relationship. In the spirit of Article 159 of the Constitution, which encourages alternative dispute resolution and reconciliation, especially in family contexts, the court allowed the appeals, quashed the convictions, and set aside the sentences. The court emphasized that this decision is final regarding the convictions and sentences, which cannot be revived once set aside.
Court Disposition
Appeals allowed; convictions quashed and sentences set aside to facilitate reconciliation.
Orders
- The appeals are allowed.
- The convictions are quashed.
Full Case Text
Judgment text and source record
31 paragraphs
Muchera v Republic (Criminal Appeal 37 & 118 of 2019 (Consolidated)) [2023] KEHC 20604 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20604 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Appeal 37 & 118 of 2019 (Consolidated)
WM Musyoka, J
July 21, 2023
Between
Franco Muchika Muchera
Appellant
and
Republic
Respondent
As consolidated with
Criminal Appeal 118 of 2019
Between
Franco Muchika Muchera
Appellant
and
Republic
Respondent
(Appeal from conviction and sentence by Hon. MI Shimenga, Resident Magistrate, RM, in Butere SRMCCRC No. 356 of 2018, of 3rd April 2019)
Ruling
1. The appellant, Franco Muchika Muchera, had been convicted by the trial court in 2 separate cases, of assault and causing grievous harm on Metrine Maeyende, his lover/partner/wife/spouse. He was sentenced to imprisonment on both of them.
2. Directions were taken in Kakamega HCCRA No 118 of 2019, for disposal of the appeal in that cause. Directions are yet to be taken on the disposal of the appeal in Kakamega HCCRA No 37 of 2019, and a record of appeal is yet to be filed.
3. As I prepared to write judgment in Kakamega HCCRA No 118 of 2019, I stumbled on an affidavit in the record by Metrine Mayende, the complainant in both matters, sworn on June 4, 2020, where she essentially says that she has forgiven the appellant, and asking for his release to facilitate reconciliation.
4. I directed that the complainant be made available to confirm the contents of that affidavit. She was made available on October 13, 2022, and she said that she stood by the contents of that affidavit.
5. The respondent and the complainant appear to be at variance with regard to the way forward. The complainant would like the appeals to be allowed, so that the appellant is freed, while the respondent would like me to go ahead and determine the appeal on merits. The respondent went ahead and filed written submissions, asking me to dismiss the appeals.
6. The appellant and the complainant appear to be in a cohabitation, which they believe amounts to a marriage. They claim to have a child between them. They can be considered to be a family. If they are ready and willing to reconcile, the court should facilitate that, in the spirit of Article 159 of theConstitution.
7. I accordingly, therefore, to facilitate that reconciliation, allow the appeals herein. The convictions are quashed and the sentences set aside. The complainant should understand that once this is done, it cannot be undone, in the sense of the convictions and sentences being revived. Orders accordingly.
JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 21st DAY OF JULY 2023W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMr. Khayumbi, instructed by JI Khayumbi & Company, Advocates for the appellant.Ms. Kagai, instructed by the Director of Public Prosecutions, for the respondent.