[2022] KEHC 10500 (KLR)

Ogeto v Republic (Criminal Appeal E19 of 2020) [2022] KEHC 10500 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10500 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E19 of 2020

AN Ongeri, J

June 17, 2022

Between

Naomi Ogeto

Appellant

and

Republic

Respondent

((Being an Appeal from the conviction and sentence of Hon. S. K. Ngetich (SRM) in Kericho Criminal Case No.354 of 2017 delivered on 8/11/2019).)

Judgment

1. The Appellant was convicted and sentenced to Five (5) years imprisonment for offence of grievous harm contrary to section 234 of thepenal code on 8. 11. 2019.

2. The particulars of the charge were that on 15/4/2017 at Kamasian Location in Kamasian Division of Kipkelion Sub-County within Kericho County, the Appellant unlawfully did grievous harm to Rael Moraa.

3. The Prosecution evidence in summary was that on the material day, the Complainant went to demand Kshs.125 from the Appellant being wages earned by the sons of the Complainant from work they did for the Appellant of ferrying off cuts.

4. According to the evidence of the complainant (PW.1) and her two sons PW.3 and PW.4, an argument ensued and the appellant took a stone and hit the Complainant injuring her on the right eye. The eye was removed and the Doctor (PW.5) assessed the injury as grievous harm.

5. The Appellant in her statement of defence said that she was distributing money given by the MCA Aspirant Bartele when the Complainant who went there late demanding to be given money. A fight started and they both fell down. Five months later, she was arrested and charged.

6. The Trial Court found the Appellant guilty as charged and sentenced her to Five (5) years imprisonment.

7. The Appellant is aggrieved with the sentence and she has appealed to this Court against both conviction and sentence on the following grounds;i.Thatthe learned trial magistrate erred in fact and law in failing to note that prosecution witnesses were not straight forward and all evidence were ill-minded.ii.Thatthe learned trial magistrate erred in law and fact by failing to observe that prosecution failed to avail crucial witnesses.iii.Thatthe learned trial magistrate erred in law and fact by considering the evidence of PW. 2 Charles Makori Ejenda a community nurse thus violating section 48 of the Evidence Act on expert witnesses.

8. The Appellant and the Respondent filed submissions which I have duly considered.

9. The Appellant submitted that witnesses in criminal matters are supposed to be credible and trustworthy, therefore, it was unsafe for the court to rely on witness accounts of persons of doubtful integrity.

10. The Appellant submitted that the witness accounts of PW 1, PW 2, PW 3 and PW 4 were unreliable.

11. The Appellant submitted that the prosecution had a duty to avail witnesses in court, section 150 of the CPC clothes the prosecution with powers to summon any witness for the establishment of the truth.

12. The Appellant submitted that the prosecution did not avail crucial witnesses to adduce evidence such as the village elder who collected the stone, doctor from Tenwek who extracted the eye of PW 1 and at least one person from the crowd who restrained the Appellant.

13. The Appellant submitted that the case involved the health of PW 1 and that the circumstances that led to the extraction of her eye is unclear yet the prosecution relied on the evidence of a community nurse rather than an eye specialist.

14. The Appellant submitted that PW 2 who treated the Complainant was not expert witness as required by section 48 of the Evidence Act.

15. The Respondent submitted that the Appellant did not deny assaulting the complainant on the material day and time. Following this encounter the complaint’s injury was so serious that she completely lost her right eye and the degree of injury was assessed as grievous harm.

16. There were eye witnesses who corroborated the evidence of the complainant. The complainant’s evidence was further corroborated by medical evidence tendered by PW 2 and PW 5.

17. The Respondent submitted that it called witnesses at its discretion and these witnesses were enough to support its case and relied on section 143 of the Evidence Act which provides as follows; “no particular number of witnesses shall, in the absence of any provision of the law to the contrary, be required for the proof of any fact.”

18. The Respondent reiterated that it had proved its case beyond reasonable doubt and the conviction was safe.

19. This being a first Appeal, the duty of the first Appellate Court is to re-evaluate the evidence adduced before the Trial Court and to come up with my own conclusion whether to support the findings of the Trial Court bearing in mind that the Trial Court had the opportunity of seeing the witnesses see Okeno vs. Republic [1972] EA 32 and Kiilu & Another vs. Republic [2005] KLR 174.

20. Several courts have highlighted the role of the first appellate court in Odhiambo Vs. Republic Cr. App No. 280 of2004 (2005) 1 KLR the court stated as follows; “On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanor.”

21. The issues for determination in this appeal are as follows:-i.Whether the Prosecution proved their case to the required standard.ii.Whether the Complainant suffered grievous harm.iii.Whether the appeal should be allowed.

22. On the issue as to whether the Prosecution proved the guilt of the appellant to the required standard, I find that the incident occurred at 5 pm in broad daylight. There were three eye witnesses whose testimony was consistent and corroborative.

23. I find that the Appellant way properly identified since she was known to the Complainant and her three children.

24. On the issue as to whether the Complainant sustained grievous harm, the Appellant’s argument was that the Medical Officer (PW.2) was unqualified to handle eye matters. However, there is evidence that as a result of the injury, the complainant’s right eye was removed and she therefore suffered grievous harm.

25. I accordingly find that the Appellant was properly convicted and I uphold the conviction.

26. On the issue of the sentence,the Court has considered the mitigation submissions filed by the appellant and a report from the Officer in Charge of Kericho Women Prison which says that the Appellant has reformed.

27. The Appellant has served more than two years imprisonment since she was sentenced on 8/11/2019 and she has learnt that crime does not pay.

28. The Complainant is not without remedy since she is at liberty to file suit for compensation for the injuries she suffered.

29. I therefore reduce the sentence to the period already served and I order that the Appellant be set free unless lawfully held for any other reason.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE, 2022A. N. ONGERIJUDGE