[2022] KEHC 15379 (KLR)

Muthaura v Republic (Criminal Appeal E061 of 2022) [2022] KEHC 15379 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15379 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E061 of 2022

TW Cherere, J

November 10, 2022

Between

Joseph Muthaura

Appellant

and

Republic

Respondent

(Being an appeal against judgment, conviction and sentence in Tigania Criminal Case No. E094 of 2020 by Hon. F.K.Munyi (PM) on 22nd March, 2022)

Judgment

Background 1. Joseph Muthaura (Appellant) was charged with three counts as follows.Count 1Assault causing actual bodily harm contrary to Section 251 of the Penal Code (the Act). The offence was committed on 03rd October, 2020 against Patrick Karia KinyuaCount 2Malicious damage to property contrary to section 339 (1) of the penal code in that on 03rd October, 2020, Appellant damaged one phone and windscreen for motor vehicle KAY 324R valued at KES. 18,000/- the property of Patrick Karia KinyuaCount 3Assault causing actual bodily harm contrary to Section 251 of the Penal Code. The offence was committed on 03rd October, 2020 against Salesio Mwirigi

Prosecution case 2. Patrick Karia Kanyua recalled that on 03rd October, 2020, he was outside his gate with Salesio Mwirigi when a gang of 8 led by Appellant arrived on motor cycles and descended on him with Appellant accusing him of selling land in the locality. That in the melee, Appellant who was armed with a machete hit him on the head and when he fell set upon him with kicks causing him injuries and damage to his phone. That Salesio’s attempt to rescue him was thwarted by the gang that threw stones at him injuring him. That complainant managed to escape in his motor vehicle KAY 324R but the gang threw stones at him and broke its windscreen. Salesio Mwiri confirmed that he was with Patrick on the material day and was also assaulted by being pelted with stones by the gang that injured Patrick and damaged his windscreen. Upon receiving the two complainants’ reports, CPL Muriithi referred them to hospital, took photographs of the damaged windscreen and subsequently arrested the Appellant. Geofrey Murithi examined the two complainant’s and prepared P3 forms which show that Patrick suffered a swollen head and right shoulder, cut wound on back and pain on neck which he assessed as harm. Selesio on the other hand suffered swollen ribs, right shoulder and left leg which was also assessed as harm.

Defence case 3. Appellant in his unsworn defence stated that the disagreement between him and Patrick arose from a land ownership dispute over his land that Patrick wanted to evict him from.

4. At the conclusion of the trial, the Appellant was found guilty and convicted and sentenced to serve three (3) years’ and one-year imprisonment in counts 1 and 3 respectively and was fined KES. 20,000/- in default to serve one-year imprisonment in count 2.

The Appeal 5. The conviction and sentences provoked this appeal mainly on the grounds that:1. Section 200 (3) of theCriminal Procedure Code (CPC)was not complied with2. The prosecution case was not proved beyond any reasonable doubt3. The sentence was excessive4. The sentence on count 2 was illegal.

Analysis and determination 6. I have considered the appeal in the light of the grounds of appeal and submission by the Appellant and by the state.

7. The trial court record clearly shows that on 25th October, 2021 when the matter was taken over by Hon. Munyi, Appellant indicated that he did not wish to recall any witness. Clearly section 200(3) of the CPC was complied with.

8. Evidence that Appellant and others assaulted the two complainant’s and damaged the windscreen of the first complainant’s vehicle was well corroborated and did not appear to have been influenced by any land dispute between 1st complainant and Appellant. From the foregoing, I find that the conviction on each count was well founded.

9. Concerning the sentence, Section 251 of the Act provides that:Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.

10. The words “shall be liable” in the context of Section 251 of the Act has the interpretation that unless a contrary intention appears, is the maximum penalty. This principle is contained in Section 66 (1) of the Interpretation and General Provisions Act (Cap 2 Laws of Kenya) which 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”.

11. 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.

12. 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”.

13. There is however a proviso to Section 26 (3) that a fine cannot be substituted for imprisonment where the law concerned provides for a minimum sentence of imprisonment. Section 28 (1) (a) of the Penal Code provides that where the Court imposes a fine under any law but the law does not expressly provide for the amount of the fine that can be imposed, then, the amount of fine that may be imposed is unlimited but shall not be excessive.

14. Whereas there is no dispute that complainants suffered harm, Appellants is a first offender. Generally, where a person is said to be a first time offender, the court usually imposes a lesser sentence as opposed to if the accused was a repeat offender. This view is subject to the discretion of the court as other factors such as aggravating circumstances are put into consideration in deciding the appropriate sentence in the circumstances of each case.

15. The trial court in its discretion imposed lawful 3 and 1 years respectively for assault in counts 1 and 3. The injuries were not aggravated and there being is no evidence of factors that militate against imposition of a fine, I find that this was a proper case that the trial court might have considered an option of a fine.

16. Concerning count 2, Appellant was fined KES. 20,000/- its default sentence in terms of Section 28 (2) of the Act is 6 months and not one year as imposed by the trial court.

17. Consequently, I confirm the conviction in each count and make the following orders:1. Appellant’s appeal on sentence is allowed2. The sentence of 3 years’ imprisonment in count 1 is substituted with a fine of KES. 15,000/- in default 6 months’ imprisonment3. The 12 months’ default sentence in count 2 is substituted with a fine of KES. 20,000/- in default 6 months’ imprisonment4. The sentence of 1 years’ imprisonment in count 3 is substituted with a fine of KES. 15,000/- in default 6 months’ imprisonment

DELIVERED AT MERU THIS 10THDAY OF NOVEMBER,2022. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - Present in personFor Appellant - Ms. Kiema AdvocateFor the State - Ms. Mwaniki (PPC)