https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1073

Mwadime v Republic (Criminal Appeal E019 of 2024) [2026] KECA 1073 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1073 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E019 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Peter Mwadime Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Voi (J. N. Onyiego, J.) delivered on 26th January 2022 in Appeal No. 7 of 2020) Judgment 1.This is a second appeal from the judgment of the High Court of Kenya at Voi (J. N. Onyiego, J.) delivered on 26th January 2022 in Criminal Appeal No. 7 of 2020. The factual background of the appeal is that the appellant, Peter Mwadime, was charged in the Senior Resident Magistrate’s Court at Wundanyi with the offence of grievous harm contrary to section 234 of the Penal Code. 2.The particulars of the offence were that, on 15th August 2019 at Bura Wuci Village, Bura Location within Taita Taveta County, the appellant unlawfully did grievous harm to Deska Wanyika Mwasoghona (PW2). 3.The appellant denied the offence and the case proceeded to trial with the prosecution calling five (5) witnesses. When called upon to present his defence, the appellant opted to remain silent and await the verdict. 4.In her testimony, PW2 told the trial court that, while in her house at around 3pm on 15th August 2019, she heard someone outside ask her child where she was; that her child promptly informed him that she was inside the house; that the person rushed into her house wielding a long stick; that she immediately recognised him as the appellant, her neighbour; that the appellant demanded that PW2 produce his wife or suffer a beating; that, sensing danger, PW2 screamed and rushed out of her house with the appellant in hot pursuit; that she tripped and fell, whereupon the appellant descended on her, striking her repeatedly; and that she gathered strength to escape, forcing the appellant to retreat. 5.PW2 further testified that her neighbours came to her aid and rushed her to Bura Dispensary for first aid and later to Mwatate Sub- County Hospital before reporting the matter to the Police. 6.Dr. Furaha Faraji (PW1), a medical officer at Mwatate Sub- County Hospital, testified that, on 15th August 2019, PW2 was presented at the Hospital alleging to have been assaulted by a person known to her; that, upon physical examination, PW2 was found to have: blood stains on her clothes, a deep cut wound on her head, no injuries on her thorax or abdomen, a fracture on the left arm, and a fracture of the right-hand thumb. PW1 told the court that PW2 was treated, her head wound was stitched and a cast placed on both hands. PW1 classified the degree of injury as grievous harm and produced PW2’s treatment notes, x-ray report and P3 form into evidence before the trial court. 7.Morris Michael Ngura (PW3), a village elder, testified that he heard screams coming from the direction of PW2’s house; that, together with others, he rushed towards the general direction of the screams only to find PW2 on the ground bleeding and writhing in pain; that PW2 informed the crowd that PW1 was responsible for her injuries; and that members of the public conducted a citizen’s arrest and frog-marched the appellant to Bura Police Post. 8.Richard Mghala Nanasabo (PW4) testified that he was PW2’s neighbour and that, just as did PW3, he rushed to PW2’s aid. 9.The prosecution’s last witness and investigating officer was PC Anderson Murithi (PW5), who testified that he was attached to Bura Police Post; that, on 15th August 2019, PW2 and the appellant were presented at the police post; that upon interrogating the appellant, he stated that he had followed his wife whom he suspected of have escaped to PW2’s house, and that, when he did not find her, he assaulted PW2. PW5 later moved the appellant to Mwatate Police Station where he was eventually charged. PW5 produced the long stick that the appellant allegedly used to assault PW2 into evidence before the trial court. 10.Having considered the prosecution’s case, the trial court found that the appellant had a case to answer and put him on his defence. However, the appellant elected to remain silent. 11.In his judgment delivered on 28th January 2020, the trial Magistrate ( Hon. E. M. Nyakundi, RM) noted that he had carefully considered the medical evidence and the findings made by PW1 in both the P3 form and treatment notes, and was satisfied that PW2’s injuries amounted to grievous harm; that the appellant rightfully opted to remain silent in his defence, and neither did he have any questions in cross-examination. Consequently, the court convicted the appellant for the offence and sentenced him to 15 years imprisonment. 12.Aggrieved by the conviction and sentence, the appellant lodged an appeal to the High Court of Kenya at Voi in Criminal Appeal No. 7 of 2020 faulting the learned trial magistrate for: convicting him on hearsay evidence; convicting him on evidence of recognition which could not be substantiated; finding that the prosecution proved its case to the required standard; failing to consider the appellant’s mental capacity; failing to consider that the appellant had not waived his right to remain silent; finding the appellant guilty of the offence; and for failing to grant the appellant an opportunity to cross-examine the prosecution witnesses. 13.In its judgment delivered on 26th January 2022, the High Court (J. N. Onyiego, J.) held that the evidence adduced by the prosecution was overwhelming; that the trial court correctly found that the prosecution had proved its case beyond reasonable doubt; and that the sentence meted was “fair given that the complainant will have to live with [the] disability caused by the appellant without any legal justification for the rest of her life.” Accordingly, the learned Judge dismissed the appellant’s appeal and upheld his conviction and sentence. 14.Being further aggrieved, the appellant moved to this Court on a 2nd appeal on five grounds. The appellant subsequently filed undated Supplementary Grounds of Appeal consisting of nine additional grounds to which we need not pronounce ourselves due to the turn of events. 15.In support of the appeal, the appellant filed undated written submissions expounding on the 14 grounds of appeal. 16.In her response, learned Principal Prosecution Counsel, Ms. Nyawinda Kernael, filed written submissions and a list of two authorities dated 28th November 2025. With regard to sentence, learned counsel submitted that the offence of grievous harm attracts a penalty of life imprisonment; that the appellant was sentenced to 15 years imprisonment, which “is a lawful sentence and reasonable in the circumstances.” She urged us to dismiss the appeal and uphold both the conviction and sentence. 17.We hasten to point out right at the outset that, when the appeal came up for hearing on the Court’s virtual platform on 14th January 2026, the appellant elected to abandon his appeal on conviction and only proceed with his appeal on his sentence. He submitted that he was remorseful and urged the court to reduce his sentence. 18.Our mandate on a second appeal as the one before us is confined to consideration of matters of law by dint of section 361 of the Criminal Procedure Code. In Karingo v Republic [1982] KLR 213, the Court stated:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.” 19.It is noteworthy that the appellant elected to abandon his appeal on conviction, opting to proceed with his appeal on sentence. It then follows that the singular ground of appeal before us is whether the sentence meted on the appellant was a “harsh and excessive in the circumstances” or otherwise unlawful so as to justify our interference therewith. Notably, the learned Judge declined to vary the sentence, holding that the Court was not convinced that the “learned magistrate erred in handling the aspect of sentencing. The sentence is quite fair.” The appellant’s appeal was found to be devoid of merit and dismissed in its entirety. 20.Section 361(1) (a) of the Criminal Procedure Code provides that:A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High court in its appellate jurisdiction on a matter of law and the Court of Appeal shall not hear an appeal under this section-i.on a matter of fact, and severity of sentence is a matter of fact; orii.against sentence, except where a sentence has been enhanced by the High court, unless the subordinate court had no power under section 7 to pass the sentence. 21.We take to mind the fact that severity of a sentence is a matter of fact and that, therefore, this Court can only interfere with such a sentence on second appeal if it is shown to be unlawful, or if the subordinate court had no power to impose the impugned sentence. 22.It is also trite that sentencing is purely the exercise of the trial court’s discretionary powers. Pronouncing itself on its limited power to interfere with the discretionary powers of the trial court in sentencing, this Court had this to say in the case of Francis Nkunja Tharamba v Republic [2012] KECA 29 (KLR):“…sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide. That being the case, in law, the appellate court should not intervene in such an exercise of discretion by an inferior court unless, it is demonstrated to it that the trial court has not exercised that discretion properly in that it has failed to consider matters it should have considered or that it has considered matters it should not have considered or that looking at the entire decision, it is plainly wrong. These are the situations in law where the appellate court can intervene in the trial court’s exercise of discretionary power such as that of sentencing. The next principle that the appellate court should adhere to when considering an appeal on sentence is that when the sentence is lawful, the appellate court should not interfere.” [Emphasis added] 23.The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) whilst restating the powers of the Court of Appeal in sentencing stated:“48.Before further delving into the question of the constitutionality or otherwise of the sentence, we must take cognizance of provisions of section 361(1) of the Criminal Procedure Code which, in cases of appeals from subordinate courts, explicitly bars the Court of Appeal from hearing issues relating to matters of fact. This section also elaborates that the severity of sentence is a matter of fact and not of law and that Court of Appeal is barred from determining questions relating to sentences meted out, except where such sentence has been enhanced by the High Court.” 24.Pronouncing itself on this very issue, this Court in MGK v Republic [2020] eKLR had this to say:“16.As regards the sentence, under section 361(1) of the Criminal Procedure Code, severity of sentence is a matter of fact and therefore not a legal issue open for consideration by this Court on second appeal.” 25.Having carefully considered the record of appeal, the impugned judgments of the two courts below, the rival submissions of the appellant and of the learned prosecution Counsel, the cited authorities and the law, we can only conclude that the statutory sentence meted on the appellant was lawful and by no means harsh or unjust. Consequently, we hereby order and direct that:a.The appellant’s appeal on sentence be and is hereby dismissed; andb.The judgment of the High Court of Kenya at Voi (J. N. Onyiego J.) dated 26th January 2022 be and is hereby upheld. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGOR..................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb...................................JUDGE OF APPEALG. W. NGENYE-MACHARIA..................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar