[2022] KEHC 14690 (KLR)

Olela v Republic (Criminal Appeal E010 of 2022) [2022] KEHC 14690 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14690 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E010 of 2022

KW Kiarie, J

November 3, 2022

Between

Victor Okeyo Olela

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case No. 316 of 2021 of the Senior Principal Magistrate’s Court at Oyugis by Hon. Celesa Okore– Principal Magistrate)

Judgment

1. Victor Okeyo Olela was convicted of the offence of assault causing actual bodily harm contrary to section 251 of the Penal code.

2. The particulars of the offence were that on November 28, 2020 at Kamuya sub location in Rachuonyo East Sub County of Homa Bay County, willfully and unlawfully assaulted Boaz Odiwuor Odero occasioning him actual bodily harm.

3. The appellant was sentenced to serve three years imprisonment. He was aggrieved and appealed against both conviction and sentence. He raised eight grounds of appeal which can be summarised as follows:a.That the trial magistrate failed to properly analyse the evidence before her and thus arrived at a wrong decision.b.That the trial magistrate based her conviction on insufficient and contradictory evidence.c.That the trial magistrate shifted the burden of proof to the appellant.d.That the trial magistrate erred in law by not considering the defense of the appellant.e.That the sentence was based on the wrong principle of law.

4. The appeal was opposed by the state through Mr Ochengo, learned counsel on grounds:a.That the offence was proved.b.That conviction and sentence were proper.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.

6. Boaz Odiwuor Odero (PW2) is the complainant in this case. His evidence was that when he went to check on the work that was being done on the maize of Bishop Moses Omondi, he found the appellant digging holes for planting trees on the same land. When he enquired from the appellant why he was doing so, the latter threw a hoe at him and he was injured.

7. Dan Onyango (PW3) and Nahashon Odiwuor Okoth (PW4) who were with the complainant testified to the same effect. The medical evidence by Jared Odhiambo Onyango (PW1) confirmed that the complainant was injured.

8. The appellant in his defence contended that the complainant and David found him planting trees on the land that bishop wants to grab and the duo chased him away. This is clearly an afterthought for he never questioned the complainant or the other witnesses who testified that they were present. The trial court therefore correctly rejected his defence.

9. It is trite law of practice that an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances as were spelled out in the case of Nilsson vs Republic[1970] EA 599,601 as follows:"The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) CCA 28 TLR 364. "

10. After the appellant was convicted, the prosecutor informed the court that he had two other convictions in court two over the same land. No record was produced to indicate whether the current offence was committed after the conviction in those other cases. In order for a previous conviction to influence the sentencing of an accused, the prosecution must demonstrate by production of record of the accused that the current offence was committed after the conviction intended to be relied on. Since this was not demonstrated to be so, the trial court erred in taking into account and factoring of the said previous conviction in sentencing the appellant.

11. According to the evidence of Jared Odhiambo Onyango (PW1) a clinical officer who examined the complainant, the injuries sustained amounted to harm. I therefore find that the sentence was excessive in the circumstances. I set aside the sentence of three years imprisonment and substitute it with a sentence of fifteen months imprisonment to run from when he was sentenced by the trial court. His appeal therefore succeed to that extent.

DELIVERED AND SIGNED AT HOMA BAY THIS 3RDDAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE