Omweri v Republic (Criminal Appeal E042 of 2025) [2026] KEHC 13272 (KLR) (23 July 2026) (Judgment)

Omweri v Republic (Criminal Appeal E042 of 2025) [2026] KEHC 13272 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 13272 (KLR) Republic of Kenya In the High Court at Nyamira Criminal Appeal E042 of 2025 TW Cherere, J July 23, 2026 Between Hellen Moraa Omweri Appellant and Republic Respondent (Being an appeal from conviction and sentence in Nyamira MCCR E948 2024 by Hon. B.Ondego (CM) on 05th November 2025) Judgment 1.The Appellant, Hellen Moraa Omweri was charged with the offence of grievous harm contrary to section 234 of the Penal Code. It was alleged that on 13th November 2024 at Magombo Location, Manga Sub-County within Nyamira County, she unlawfully did grievous harm to Ann Nyaboke Ondieki. 2.The Appellant pleaded not guilty to the charge whereupon the matter proceeded to a full hearing before the trial court. At the conclusion of the trial, the learned trial magistrate delivered judgment on 05th November 2025, finding the Appellant guilty as charged and convicting her accordingly. The Appellant was subsequently sentenced on 17th November 2025 to serve twenty-five (25) years' imprisonment. 3.Aggrieved by both the conviction and sentence, the Appellant lodged a Petition of Appeal dated 01st December 2025, raising nine grounds of appeal challenging the findings of the trial court on conviction, the sufficiency of the evidence, the alleged defects in the charge, the propriety of the sentence and the overall merits of the decision. 4.The Appellant, through M/s Bwonwonga & Co. Advocates, filed subsequently filed written submissions dated 20th February 2026 in support of the appeal. Although the Respondent was afforded an opportunity to respond to the appeal, the they did not file any written submissions. The appeal therefore falls for determination on the basis of the record of appeal, the judgment of the trial court, the applicable law and the Appellant's written submissions alone. 5.This is a first appeal. Accordingly, this Court is under a duty to re-evaluate, re-analyse and reconsider the entire evidence that was adduced before the trial court and to draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. That duty was authoritatively stated in Okeno v Republic [1972] EA 32 and was further amplified by the Supreme Court of India in K. Anbazhagan v State of Karnataka & Others, Criminal Appeal No. 637 of 2015, which observed that a first appellate court must undertake a complete and comprehensive appraisal of the entire evidence and give reasoned findings flowing from its own analysis rather than merely affirming the conclusions of the trial court. Guided by those principles, I have reconsidered the entire record of appeal. 6.Having undertaken that evaluation, the issues arising for determination are whether the charge sheet was fatally defective; whether the prosecution proved the offence of grievous harm contrary to section 234 of the Penal Code beyond reasonable doubt; whether the conviction was safe; whether the complaint regarding the date of the judgment has any legal consequence; and whether the sentence-imposed warrants interference. 7.The Appellant contends that the charge sheet cited an incorrect statutory provision and was therefore incurably defective. The law governing defective charges is well settled. In Jason Akumu Yongo v Republic [1983] KECA 79 (KLR), the Court of Appeal held that a charge is defective where it fails to accord with the evidence or where the defect prejudices an accused person in understanding the case to be met. The inquiry is therefore not merely whether an error exists, but whether that error occasioned prejudice or a failure of justice. The Court of Appeal in Peter Ngure Mwangi v Republic [2014] KECA 405 (KLR) explained that the court must first determine whether the charge is indeed defective and, if so, whether the defect is curable. In the same vein, Benard Ombuna v Republic [2019] KECA 994 (KLR) emphasized that the test is substantive rather than technical and turns on whether the accused was prejudiced in preparing or presenting a defence. 8.I have examined the charge sheet and I am satisfied that it complies with the requirements of sections 134 and 137 of the Criminal Procedure Code. The Appellant was charged with the offence of grievous harm contrary to section 234 of the Penal Code. The charge identified the complainant, specified the date, place and manner in which the offence was allegedly committed and cited the statutory provision creating the offence. The Appellant pleaded to the charge, fully participated in the trial, extensively cross-examined the prosecution witnesses and tendered her defence without suggesting that she did not understand the accusation she faced. While the decisions in Mwangi v Republic [2024] KEHC 7867 (KLR) and Kingori & 9 others v Republic [2024] KEHC 7959 (KLR) are persuasive and concerned situations where the courts found defects in the framing of charges, the circumstances obtaining in those cases are materially distinguishable from the present appeal. Unlike those cases, no error has been demonstrated in the framing of the charge before the trial court and no prejudice or failure of justice has been shown within the meaning of section 382 of the Criminal Procedure Code. I therefore find that the contention that the charge sheet was fatally defective is without merit. 9.Concerning whether the prosecution proved the charge of grievous harm beyond reasonable doubt, the burden of proving every ingredient of a criminal offence rests throughout upon the prosecution and never shifts to an accused person. In the persuasive decision in Republic v Ismail Hussein Ibrahim [2018] KEHC 4614 (KLR) adopting the reasoning in United States v Smith, 267 F.3d 1154 (D.C. Cir. 2001), the Court emphasized that proof beyond reasonable doubt does not mean proof beyond every conceivable doubt, but the evidence must be sufficiently cogent to leave the court firmly convinced of the accused's guilt. 10.The Appellant was convicted of grievous harm contrary to section 234 of the Penal Code. Section 4 of the Penal Code defines grievous harm as harm which seriously or permanently injures health or causes permanent injury to any external or internal organ or sense. In the persuasive decision in Kangogo v Republic [2025] KEHC 5742 (KLR), the Court held that to sustain a conviction under section 234, the prosecution must prove that the complainant sustained grievous harm, that the harm was unlawfully inflicted, and that it was the accused who caused it. 11.PW1 testified that on 13th November 2024 at about 7.00 p.m., while walking home from Magombo Market carrying her wares, she encountered the Appellant, whom she knew before the incident. She stated that the Appellant suddenly attacked her by pouring a corrosive substance on her face and eyes. She screamed for help and members of the public responded. She was initially taken to Magombo Hospital, where she received first aid, before being referred to Kisii Hospital and subsequently to Kenyatta National Hospital for specialised treatment. PW1 testified that as a result of the injuries, she completely lost the sight in one eye while the vision in the other eye remained seriously impaired. Her evidence was corroborated by PW3, James Maina, the Clinical Officer at Esani Sub-County Hospital, who testified that upon examining her, he found that she was in severe pain and had sustained severe bruising to the face, particularly on the cheeks and around the eyes, consistent with injuries caused by a corrosive substance. PW3 classified the injuries as grievous harm and produced the P3 Form (Exhibit 1), the treatment notes from Esani Sub-County Hospital (Exhibit 2), the discharge summary from Nyanchwa Mission Hospital dated 18th November 2024 (Exhibit 3) and the report from P.C.A. Kikuyu Hospital dated 19th November 2024 (Exhibit 4). He further testified that the specialist reports confirmed complete damage to one eye and severe damage to the other, resulting in permanent loss of vision. 12.From the foregoing, I am satisfied that the prosecution proved that the complainant sustained grievous harm within the meaning of section 4 of the Penal Code. 13.On whether there was prove that it was the Appellant who inflicted those injuries, the Appellant argued that the evidence of recognition was unreliable because the incident occurred at about 7.00 p.m. and because there were contradictions in the prosecution case. 14.I have carefully reconsidered the evidence. Complainant stated that she saw the Appellant before the latter attacked her by pouring a corrosive substance on her face and eyes. Upon screaming for help, members of the public responded and she immediately identified the Appellant as the person who had assaulted her. PW2 confirmed that when he arrived at the scene after hearing the complainant's screams, the complainant informed him that it was the Appellant who had attacked her. Similarly, PW4, the investigating officer, testified that when the complainant made her report to the police later that evening, she identified the Appellant as her assailant and maintained that position throughout the investigations. 15.From the evidence on record, I am satisfied that this was a case of recognition and not identification of a stranger. The complainant's evidence on the identity of the Appellant was consistent, was corroborated by the evidence of PW2 and PW4 regarding the immediate report, and leaves no reasonable doubt that it was the Appellant who unlawfully inflicted the injuries complained of. 16.The Appellant further submitted that the prosecution failed to call material witnesses. Counsel argued that although PW1, PW2 and PW4 testified that members of the public responded to the complainant's screams and rescued her, none of those persons, apart from PW2, was called to testify and no explanation was given for their omission. Section 143 of the Evidence Act provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. In Omar v Republic [2017] KECA 357 (KLR), the Court of Appeal, while citing Bukenya & Others v Uganda [1972] EA 549, reaffirmed that although the prosecution must avail all witnesses necessary to establish the truth, it is not obliged to call a superfluity of witnesses and an adverse inference will only arise where the evidence adduced is barely adequate and the uncalled witnesses were essential to the just determination of the case. 17.In the present case, the prosecution called the complainant, PW2, PW3 and PW4, whose evidence established the material facts in issue. The Appellant has not demonstrated that the evidence of the other members of the public was essential to the determination of the case or that their omission occasioned any prejudice. Accordingly, this ground of appeal fails. 18.The Appellant further contended that the prosecution evidence was contradictory, particularly with regard to the weapon allegedly used and the evidence relating to the complainant's treatment. Upon a fresh evaluation of the record, I find that those assertions are not borne out by the evidence. PW1, who was the sole eyewitness to the assault, testified that the Appellant, whom she knew well, attacked her by pouring a substance on her face and eyes before fleeing from the scene, while PW2, who responded shortly after the complainant's screams for help, testified that the complainant immediately identified the Appellant as her assailant. The medical evidence of PW3 established that the complainant had sustained injuries consistent with corrosive acid burns, and PW4's evidence was confined to the report made to the police and the investigations that followed. 19.Read as a whole, the prosecution evidence is consistent on the material facts that the complainant sustained grievous injuries during the attack and that she consistently identified the Appellant as the person who inflicted those injuries. The alleged inconsistencies relied upon by the Appellant are not borne out by the record and do not raise any reasonable doubt as to the Appellant's guilt. 20.The Appellant further contended that the learned trial magistrate erred by rejecting her defence without giving plausible reasons. In her unsworn defence, the Appellant denied assaulting the complainant and asserted that it was the complainant who had previously attacked her with a jembe while she was planting flowers, causing injuries for which she received treatment before her arrest. DW2, a seven-year-old child, supported the occurrence of that earlier altercation but admitted in cross-examination that he remained at home on the night of the offence, did not witness the incident giving rise to the charge and did not know whether the complainant had been splashed with acid. Upon my own re-evaluation of the entire evidence, I find that the defence related to an earlier disagreement between the parties and did not rebut the prosecution evidence that the complainant was attacked on the evening of 13th November 2024, sustained grievous injuries and immediately identified the Appellant as the person who assaulted her. The learned trial magistrate therefore properly rejected the defence, as it did not raise a reasonable doubt in the prosecution case. 21.The Appellant further submitted that the judgment was undated. Section 168 of the Criminal Procedure Code requires a criminal court to pronounce its judgment in open court either immediately after the conclusion of the trial or at a subsequent time of which notice has been given to the parties. 22.I have considered that submission alongside the record of appeal. The certified copy of the judgment forming part of the record is dated 05th November 2025, being the date on which it was delivered. 23.The Appellant's contention that the judgment was undated is therefore not borne out by the record, and this ground of appeal fails. 24.Lastly, the Appellant challenges the sentence of twenty-five years' imprisonment. Section 234 of the Penal Code provides that "any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life." 25.It is settled that sentencing is a matter within the discretion of the trial court. In Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR) , the Court of Appeal held that an appellate court will not interfere with sentence unless the trial court acted on a wrong principle, overlooked a material factor, took into account an irrelevant consideration, or imposed a sentence that is manifestly excessive in the circumstances. Having re-evaluated the record, I find no basis for interfering with the sentence imposed. The learned trial magistrate exercised his discretion judiciously and upon the correct principles. 26.The complainant sustained permanent injuries to her eyesight following a vicious and unprovoked attack. The nature of the attack, the gravity of the injuries inflicted and their lifelong consequences justified the imposition of a substantial custodial sentence. In the circumstances, the sentence of twenty-five years' imprisonment cannot be said to be manifestly excessive, particularly bearing in mind that the offence attracts a maximum sentence of life imprisonment. 27.In view of the foregoing, I find no merit in the appeal. The prosecution proved the charge of grievous harm contrary to section 234 of the Penal Code beyond reasonable doubt. The conviction was safe, and the sentence imposed was lawful and appropriate in the circumstances. 28.Consequently, the appeal is hereby dismissed in its entirety. The conviction of the Appellant for the offence of grievous harm contrary to section 234 of the Penal Code and the sentence of twenty-five (25) years' imprisonment imposed by the trial court are hereby affirmed. DELIVERED AT NYAMIRA THIS 23RD DAY OF JULY 2026WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - AnitaAppellant - PresentFor the Appellant - Mr. Bwononga for Bwononga & Co. AdvocatesFor the DPP - Mr. Chirchir (SADPP)