[2022] KEHC 3167 (KLR)

Munoru v Republic (Criminal Appeal 108 of 2018) [2022] KEHC 3167 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3167 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal 108 of 2018

TW Cherere, J

May 19, 2022

Between

Julius Ntonjira Munoru

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Criminal Case No.2420 of 2015 the Chief Magistrate’s Court at Maua by Hon. J.Wanyanga (RM) on 29. 06. 2017)

Judgment

The Trial 1. Julius Ntonjira Munoru(Appellant) has filed this appeal against conviction and sentence on a charge of grievous harm contrary to section 234 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence were that:On 21. 06. 2014 at Kabuline Location in Igembe South District within Meru County unlawfully did grievous harm to Patrick Muriithi

Prosecution case 2. The prosecution called a total of five (5) witnesses in support of their case. PW1 Agnes Karuki, the complainant’s mother recalled that on 21. 06. 2014 at about 05. 00 pm, one Daniel informed her that Appellant had attacked her son and injured him. She rushed to the scene to find her son had been cut on the forehead and was then assisted to escort him to Maua Methodist Hospital where he was treated as an inpatient for 40 days. PW2 Bernard Kirimania recalled that on 21. 06. 2014 at about 05. 00 pm, he was in company of Complainant and one Francis Kathuri when Appellant appeared armed with a panga with which he threatened to cut the Complainant. That immediately thereafter, both walked away and from a distance of about 50 metres, he saw Appellant cut Complainant with a panga injuring him seriously. PW5 Francis Kathuri who was in company of PW1 similarly stated that he saw Accused assault the Complainant with a panga. The witnesses reported the matter to Complainant’s mother and also assisted her to escort Complainant to Maua Methodist Hospital where he was treated as an inpatient.

3. Complainant was treated and examined by PW3 Catherine Makura, a clinical officer who found that he had sustained a 20 cm cut wound with compound fracture of the skull bone leading to brain damage. The witness prepared the P3 form PEXH. 1 in which she assessed the degree of injury as grievous harm. Witness also tendered Complainant’s discharge summary PEXH. 2 from Maua Methodist Hospital which reveals that Complainant was treated as an inpatient from 21. 06. 2014 to 10. 07. 2014, a trauma card PEXH. 3 showing the treatment accorded to Complainant and a letter dated 27. 11. 2015 PEXH. 4 by Dr. Kariuki to the effect that Complainant had lost the ability to speak, the damage to brain tissue had caused him confusion, irritability and convulsions and he had developed epilepsy and unilateral weakness. PW4 PC Antony Albunus Kivilu stated that on 01. 07. 2014, Complainant’s relatives reported to police that Complainant had been seriously assaulted on 21. 06. 2014 and was receiving treatment as an inpatient. After investigations, Appellant was arrested and charged.

Defence case 4. In his defence, Appellant denied the offence. He stated he met Complainant in the morning of the material date but that he was at his farm at the time the offence is alleged to have been committed.

5. By a judgment dated 29th June, 2017, Appellant was convicted and sentenced to serve 20 years’ imprisonment.

The appeal 6. Aggrieved by the sentence, Appellant appealed mainly on grounds that the sentence imposed on him is harsh and excessive,

Analysis and determination 7. Section 234 of the Act provides that:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

8. The words “shall be liable” in the context of Section 234 of the Act has the interpretation that unless a contrary intention appears, life imprisonment is the maximum penalty. This principle is contained in Section 66 (1) of the Interpretation and General Provisions Act (Cap 2 Laws of Kenya) provides that:“Where in a written law a penalty is prescribed for an offence under that written law, that provision shall, unless a contrary intention appears, mean that the offence shall be punishable by a penalty not exceeding the penalty prescribed”.

9. The second observation is that the principle of law in Section 66 aforesaid is entrenched in Section 26 of the Penal Code which expressly authorizes a court to sentence the offender to a shorter term than the maximum provided by any written law and further authorizes the court to pass a sentence of a fine in addition to or in substitution for imprisonment except where the law provides for a minimum sentence of imprisonment.

10. In particular, Section 26 (2) and (3) of the Penal Code provides:“(2)Save as may be expressly provided by the law under which the offence concerned in punishable, a person liable to imprisonment for life or any other shorter period may be sentenced to any shorter term.(3)A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution for imprisonment”.

11. Medical evidence tendered by the Prosecution reveals that Complainant suffered permanent injuries in that he lost the ability to speak, the damage to brain tissue had caused him confusion, irritability and convulsions and he had developed epilepsy and unilateral weakness. As rightly observed by the learned trial magistrate, the Complainant has to live with permanent injuries and incapacitation for life.

12. Having considered the seriousness of the injuries inflicted on Complainant, the learned trial magistrate in its discretion imposed a lawful 20-year sentence.

13. I have considered whether the 20 years’ sentence was excessive in the circumstances of this case.

14. The case of Bernard Kimani Gacheru vs. Republic[2002] eKLR, the Court of Appeal stated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. 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 are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

15. In Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus: -“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”

16. That Complainant has to live with permanent injuries and incapacitation for life is confirmed by the medical evidence and further by the fact that when he appeared in court on 13. 10. 2016, he could not even answer a simple question as stating his name.

17. I have considered the appeal and I find that the Appellant has not demonstrated that in passing the sentence, the learned trial magistrate took into account an irrelevant factor or that a wrong principle was applied or that the sentence itself is so excessive.

18. A scrutiny of the judgment reveals that the learned trial magistrate not only considered the seriousness of the injuries inflicted on the Complainant but also on the mitigation by the Appellant and the fact that he was a first offender.

19. Consequently, I decline the invitation to interfere with the sentence imposed on the Appellant and hereby issue the following orders:(a)This appeal is dismissed(b)The 20-year sentence is upheld

DATED THIS 19THDAY OF MAY, 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - PresentFor the State - Ms. Mwaniki (PPC)