[2023] KEHC 24289 (KLR)

Owido v Republic (Criminal Appeal E004 of 2023) [2023] KEHC 24289 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24289 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E004 of 2023

KW Kiarie, J

October 24, 2023

Between

Kennedy Odhiambo Owido

Appellant

and

Republic

Respondent

(An Appeal from the original conviction and sentence in Criminal case NO. E054 of 2020 of the Senior Resident Magistrate’s Court at Mbita by Hon. N.N. Moseti–Senior Resident Magistrate)

Judgment

1. Kennedy Odhiambo Owido, the appellant herein, was convicted after pleading guilty to the offence of grievous harm contrary to section 234 of the Penal Code.

2. The particulars of the offence are that on 5th October 2020 at Kisui village, Gembe West location, in Mbita sub-county within Homa Bay County, did grievous harm to Leonard Ochieng Owido.

3. The appellant was sentenced to six years’ imprisonment. He was aggrieved and filed this appeal against both conviction and sentence. He was represented by Mr. Ongoso advocate. He raised grounds of appeal as follows:a.The honourable learned senior magistrate erred in fact and in law in misdirecting himself as per the dictates of law in totally entering a judgment and sentence that was excessive in the circumstances yet the said charge of grievous harm was not proved to have caused any permanent injuries to the complainant.b.The honourable learned senior resident magistrate erred in fact and in law in misdirecting himself as per the dictates of law by sentencing the accused to 15 years in prison yet the offence fell under the purview of common assault of which the honourable could have fined the accused or placed him under probation.c.The honourable learned senior resident magistrate erred in fact and in law in misdirecting himself as per the dictates of law by failing to analyze the documentary evidence and the glaring inconsistencies that were tendered by the state witnesses.d.The honourable learned senior magistrate erred in fact and in law in misdirecting herself as per the dictates of the law and entered a judgment that was totally flawed and went against the criminal procedure code of Kenya.e.That the said judgment was full of errors, ambiguity, and flawed in the circumstances.f.The honourable learned senior resident magistrate erred in fact and in law by arriving at a ruling that is unconstitutional and illegal in nature and the statutes that are against the natural cause of justice.g.That the ruling of the learned trial magistrate goes against the rules of natural justice consequently the said ruling and decision is a nullity in law.

4. The appeal was opposed by the state through Mr. Ochengo, learned counsel. It was contended that the conviction was supported by the evidence on record and that the sentence was proper.

5. This court is an appellate court and I have thoroughly reviewed all evidence that was presented in the lower court. Despite not having seen or heard any witnesses, I have come to my own conclusions. I will be using the precedent set by the well-known case of Okeno vs. Republic [1972] EA 32 as guidance.

6. Section 234 of the Penal Code provides:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

7. The person making the complaint suffered two injuries in this case:a)A deep cut on the left side of their neck that was about 10 cm long and caused heavy bleeding.b)A cut on their left hand and palm that also caused bleeding.

8. Herbert Ochieng Ouma (PW3) confirmed the injuries sustained by the complainant and presented the P3 form on behalf of Angula Felix, the clinical officer who conducted the examination. The injuries were categorized as grievous harm and this classification was not disputed during the trial. As such, it cannot be raised as an issue for the appeal.

9. From the testimony of Leonard Ochieng Owido (PW1), his brother (the appellant) attacked him while he was cutting his trees. Initially, when he asked his brother to stop, the appellant pretended to leave. However, suddenly, he cut the left side of his neck. When the appellant tried to strike him on the head, he used his left hand to shield himself, resulting in a cut on his left palm.

10. During the incident, Peter Otieno Owido (PW2), who is the brother of both the complainant and the appellant, arrived at the scene of the attack. He explained that he was called out by the complainant for assistance and rushed to the location. Upon his arrival, he saw the appellant holding a machete and standing around 10 meters away from the complainant. When he questioned the appellant about the attack, he received no response. He then helped the bleeding complainant to go to the hospital. This testimony amounts to circumstantial evidence. In the case of Mohamed & 3 Others vs. Republic [2005]1KLR 722 Osiemo Judge explained what circumstantial evidence is as follows:"Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved."In the instant case, after analyzing the evidence tendered I find it incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

11. An appellate court would interfere only where there exists, to a sufficient extent, circumstances entitling it to do so. Nelson vs Republic [1970] E.A. 599 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) C.CA 28 T.LR 364. "

12. The appellant in his record of appeal deliberately misled the court by alleging that he was sentenced to 15 years in prison. The record indicates that he was sentenced to six years’ imprisonment.

13. The appellant's attack on the complainant was unwarranted and reprehensible, given that he was cutting down the complainant's trees. I have no valid grounds to challenge the sentence handed down by the learned trial magistrate. Consequently, the appeal is dismissed.

DELIVERED AND SIGNED AT HOMA BAY THIS 24TH DAY OF OCTOBER, 2023KIARIE WAWERU KIARIEJUDGE