https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11447

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CRIMINAL APPEAL NO. E064 OF 2025** **ONESMUS MULEI MBINGI………. …….………….……………………. APPELLANT** **VERSUS** **REPUBLIC ……………………………………………………………………. RESPONDENT** ***(Being an appeal against the Conviction and Sentence by Hon. C.M Maundu (CM) in Makueni MCCR E538 of 2024)*** **JUDGEMENT** 1. The appellant herein, Onesmus Mulei Mbingi was convicted by the Chief Magistrate’s Court in Makueni for the offence of grievous harm contrary to section 234 of the *Penal Code.* Particulars of the offence were that on 13 September 2024 at Yathonza village in Makueni Sub-county within Makueni County unlawfully did grievous harm to Mulu Manthi Muindi . He was sentenced to five (5) years imprisonment. 2. Aggrieved, the appellant appealed against the conviction and sentence where he raised the following grounds; 1. The trial court erred in both fact and law by failing to find that the appellant was not properly identified as the assailant as required by law. 2. The trial court erred in both fact and law by failing to find that the prosecution’s case was riddled by material inconsistencies and contradictions rendering the conviction unsafe. 3. The trial court erred in both fact and law by failing to find that key witnesses were not called thereby lowering the probative value of the prosecution case. 4. The trial court erred in both fact and law by dismissing the appellant’s defence without proper justification. 5. The trial court erred in both fact and law by failing to consider the appellants mitigation during sentencing ***Case before the trial court*** 1. At the trial, the prosecution called four (4) witnesses to prove its case while the appellant testified on oath without calling any witness. PW1 Mulu Manthi the complainant aged 104 years testified that on 13 September 2024 at around 5.30 pm, he was returning home after taking a bath in Kaiti river which was near his home. He was assaulted by the appellant at the road while collecting vegetation for his goats. The appellant aimed the stick which he identified as his walking stick towards his head but he blocked with his left hand which broke. He was taken to hospital for treatment after which he reported the matter to the police. He testified that although he had poor eyesight, he was able to identify the person who assaulted him. It was his testimony that the appellant looked like the person who assaulted him. 2. PW2 Pauline Nduku’s evidence was that she was the complainant’s daughter. She testified that on 13 September 2024 at 5.30pm, she was informed that her father was being spoon fed by an employee. She went to check on him at around 7.00 pm and found both hands were swollen. He told her the he was assaulted by Onesmus Mulei, the appellant using his walking stick which he identified in court. The following day, she escorted her father to Kitala police station where they reported the incident and were issued with a P3 form. She went on to say that the walking stick was subsequently recovered from the appellant’s house. 3. PW3 Joseph Biwott a clinical officer at Makueni County hospital testified that he examined the complainant who was 104 years old who had reported to have been assaulted by a person known to him. He established that the complainant had tenderness on the right shoulder and a fracture on the left forearm. He estimated the injury to be one week old and found that a plaster had been applied. He classified the injury as grievous harm and produced the P3 as exhibit 1. 4. PW4 PC Hillary Kimutai the investigating officer testified that on 14 September 2024 he received a complaint from the complainant aged 104 years who reported that he had been assaulted by the appellant. He was accompanied by PW2 and his left wrist was swollen. The complainant reported that the appellant used his walking stick to assault him. He issued him with a P3 form and later visited the scene. He went to the appellant’s house where he recovered the complainant’s walking stick inside the house. He arrested the appellant and charged him with the offence. He produced the walking stick as exhibit 2. 5. At the conclusion on the prosecution’s case, the trial court found that a *prima facie* case had been established and placed the appellant on his defence. 6. The appellant testified on oath and denied the charges. He testified that on the material day, he sprayed oranges at Wambua’s farm, returned home at 1.00pm, went to his farm at Kyau at around 2.00pm where he stayed until 5.00pm before going to Kyau Market. That he left the market at 9.00 pm, went back home where he was informed by his children that they met the complainant at his parent’s grave. He went to the grave and was surprised to find the appellant walking stick placed on the grave, a red ribbon and seven circular cuttings engraved on the stick which he took to his house after blessing the grave. He produced the red ribbon as evidence. That on 27 October 2024, two police officers went to his house, arrested him, recovered the walking stick and red ribbon which they took to the police station. He testified that he knew the complainant who would go and collect vegetation for his goats at his farm but he has never stopped him from doing so. 7. At the close of the trial, the appellant was convicted and sentenced to five (5) years imprisonment. He filed the present appeal which was canvassed by way of written submissions. ***Appellant’s submissions*** 1. The appellant submitted that the trial court erred by failing to appreciate that the appellant was not properly identified as required by law. He contended that the complainant’s evidence was that he was attacked during evening hours when it was getting dark and visibility was poor. He also submitted that the complainant had poor eyesight which affected his ability to properly identify the assailant. He went on to submit that during cross examination, the complainant stated that the appellant looked like the person who attacked him but did not give the description of the attacker. He challenged the evidence of the complainant as that of a single witness and cited the case of Charles ***O Momanyi vs Republic (1988-92) 2 (KAR 75)*** in support thereof. 2. He submitted that identification parade was not conducted to corroborate the complainant’s testimony. He went on to contend that the prosecution case was riddled with contradictions, malice and inconsistencies. He contended that the witnesses gave contradictory accounts on where the assault occurred as well as other material matters in the case. The case of ***Ngungú Kimani vs Republic (1979) eKLR 283*** was cited in support thereof. As regards the appellant’s walking stick, it was submitted that it was the appellant kept it after he collected it from the grave site. 3. The appellant further submitted that key witnesses were not called to testify. It was argued that failure to call Nduku and her children who were said to be present during the incident lowered the prosecutions case. Reliance was placed in the case of ***Oloro and Daltanyi vs Reginum (1956) 2323 EACA 49.*** 4. He argued that the trial court erred by dismissing his defence despite that fact that it was true, cogent and consistent thereby denying the appellant benefit of doubt. He urged the court to find in his favour, quash the conviction and sentence and acquit him. ***Respondent’s submissions*** 1. The Respondent opposed the appeal and submitted that the prosecution proved all ingredients of the offence being proof that the victim sustained grievous harm, that the harm was caused unlawfully and that the appellant caused or participated in causing the grievous harm. It was contended that the evidence of PW1 was corroborated by PW3 as well as the medical evidence which showed that PW1 sustained injuries which were classified as grievous harm. It was further argued that the walking stick, exhibit 2 and PW4 corroborated PW1 and PW2 evidence as to the identity of the appellant as the assailant. 2. On the issue of contradictions, it was submitted that there were no contradictions or inconsistencies as alleged. Regarding the sentence, it was submitted that the law prescribes a maximum of life imprisonment and hence the 5-year imprisonment was lenient. The court was urged to dismiss the appeal and uphold the conviction and sentence. ***Analysis and determination*** 1. Having considered the Petition of Appeal, the appellant’s and respondent’s written submission, and the trial court proceedings, the courts finds that the main issues for determination are as follows: - 2. Whether the prosecution proved its case beyond reasonable doubt 3. Whether the sentence was excessive ***Whether the prosecution proved its case beyond reasonable doubt*** 1. This being the first appellate court, the court is duty bound to revisit the evidence tendered before the trial court, re-evaluate it, analyze it and arrive at its own independent conclusions on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them. See ***Okeno vs R (1977) EALR 32 and Mark Mose vs R (2013) eKLR***. 2. Further, the court of appeal, in ***Kiilu & Another V Republic [2005]1 KLR 174****,* stated thus; “*An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”* 1. The appellant was charged with the offence of grievous harm contrary to *Section 234 of the Penal Code.* The said Section provides as follows; ***“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”*** 1. Section 4 of the *Penal Code* defines grievous harm and harm as follows; ***“grievous harm”*** *means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;* ***“harm”*** *means any bodily hurt, disease or disorder whether permanent or temporary;* 1. To secure a conviction under the offence of grievous harm, the prosecution had to prove the following essential elements beyond reasonable doubt:- 2. The victim sustained grievous harm 3. That the harm was caused unlawfully 4. That the appellant caused or participated in causing the grievous harm ***(See Chrispus Kariuki Ndungu vs Republic (2022) eKLR*** and ***Gatwiri v Republic (Criminal Appeal E012of2025) 2026 KEHC 2069 (KLR)*** 1. In this case, the prosecution needed to prove that the appellant caused harm, *that is*, any bodily hurt whether permanent or temporary, which seriously injured the health or which caused any permanent or serious injury to any external or internal organ, membrane or sense of the complainant. 2. In criminal proceedings, the evidence presented in support of a charge is critical. On the first element, i.e., ***the victim sustained grievous harm*,** the appellant averred in his grounds of appeal as well as submissions that the prosecution case was riddled with contradictions, malice and inconsistencies. He contended that the witnesses gave contradictory accounts on where the assault occurred as well as other material matters in the case and cited ***Ngungú Kimani vs Republic (1979) eKLR 283*** in support thereof. 3. PW1 testified that on 13 September 2024 at about 5.30 pm he was assaulted by the appellant who used his walking stick to hit him. That the stick was aimed at his head but he blocked it with his left hand which was broken. PW2 stated that on the material day, she was informed that the complainant, her father, was being fed and when she arrived home at around 7pm, she found that both hands swollen. She took PW1 to hospital on 14 September 2024 where he was treated. 4. PW3, a clinical officer examined him on 17 September 2024 and established that there was tenderness and pain on the shoulder and right hip joint, and that there was a fracture on the left forearm. That the injury was approximately a week old. He produced the P3 form as exhibit 1. PW4 the investigating officer confirmed that PW1 reported to have been assaulted on 13 September 2024 where he issued him with the P3 form on 14 September 2024. This evidence was not challenged by the appellant. 5. The prosecutions witnesses provided direct, cogent and consistent evidence that was corroborated by medical evidence in the form of P3 form (exhibit 1) as well as the complainant’s walking stick (exhibit 2). There court did not find any material contradictions or inconsistencies in the prosecution’s witnesses and any deviations noted were minor and did not go the root of the case. Evidence adduced proved that the complainant suffered grievous harm as a result of the assault as defined by law and court is satisfied that the first element is proved beyond reasonable doubt. 6. On the second element, i.e, ***that the harm was caused unlawfully,*** meaning that the harm was without any legal justification, PW1 testified that on the material day, he was assaulted while he was on the road without cause. His evidence was corroborated by PW2 and PW4. There was nothing placed before the court to justify the assault and the court finds that the prosecution proved beyond reasonable doubt that the injury sustained by the Complainant was caused unlawfully, and there was absolutely no legal excuse to justify the same. 7. On the third element, i.e, that ***the appellant caused or participated in causing the grievous*** *harm,* the appellant in his grounds of appeal, averred that he was not properly identified as the assailant as required by law, that key witnesses were not called to testify and that his defence was dismissed without valid reasons. 8. In his submissions, he contended that the complainant was attacked during evening hours when it was getting dark and visibility was poor, he had poor eyesight which affected his ability to properly identify the assailant and that during cross examination, he stated that the appellant looked like the person who attacked him but did not give the description of the attacker. He further contended that identification parade was not conducted to corroborate the complainant’s testimony. 9. Section 124 of the *Evidence Act* provides that except for sexual offences, evidence of a victim must be corroborated by other material evidence. PW1 testified that he was assaulted by the appellant who used his walking stick to hit him. He sustained injuries on the left hand. His evidence was corroborated by medical evidence inform of the P3 form as well as medical findings by PW3. Additionally, PW4 testified that he recovered the complainant’s walking stick (exhibit 2) that was used in the assault at the appellant’s house. This fact was admitted by the appellant who instead testified that he found the walking stick on the grave and took it home. The court finds that even though the appellant who was 104 years, admitted that he had poor eyesight and had difficulty in seeing properly, he was not blind and his testimony was coherent, consistent, corroborated and led to the recovery of the assault weapon at the appellant’s house. This leads to the conclusion that the appellant did indeed assault him and the court finds that this element was properly proved. The court finds that all ingredients of the offence were proved beyond reasonable doubt and uphold the conviction. ***Whether the sentence was excessive*** 1. The appellant averred in his grounds of appeal that the trial court failed to take into consideration his mitigation and that the sentence was excessive. The respondent on the other hand contended that the law prescribes a maximum of life imprisonment and hence the 5-year imprisonment was lenient, but urged to dismiss the appeal, uphold the conviction and sentence. 1. Sentencing is a matter which rests in the discretion of the trial court. In ***Bernard Kimani Gacheru vs. Republic (2002) eKLR,*** it was thus held: *“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”* 1. The record of proceedings show that the trial court did consider the mitigation by the appellant that he was a first offender was remorseful and had children who depended on him as well as the pre-sentence report dated 27 August 2024 prior to sentencing. The pre -sentence report concluded that the appellant was not keen on reconciliation and had committed the offence due to anger. It thus recommended a non-custodial sentence. 2. The offence provides a maximum sentence of life imprisonment. The court finds the sentence meted was neither illegal nor unlawful. Sentencing is a question of fact and is always at the trial court's discretion. There must be evidence on record to show that the trial court erred in exercising its discretion in awarding the five (5) year imprisonment sentence. This court finds no reason to interfere with the same. ***Final Orders*** 1. Thus, the court makes the following orders: 2. The appeal lacks merit and is accordingly dismissed. 3. The court upholds both the conviction and sentence of the trial court. Dated, Signed and delivered Virtually at Nairobi on this 15th day of July 2026 **JOSEPH KIPKOECH BIOMDO** **JUDGE**