https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9973

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **HCCRA NO E136 OF 2025** **REAGAN OMONDI LANGI.....................................APPELLANT** **-VERSUS-** **REPUBLIC........................................................RESPONDENT** ***(Being an Appeal from the Judgment of Hon. A.C. Munyuny in SRM at Migori Law Courts Cr. No. E016 of 2025)*** **JUDGMENT** 1. REGAN OMONDI LANGI, the appellant herein, was charged with the offence of grievous harm contrary to **section 234 of the Penal Code**. The particulars of the offence were that on the 28th January 2025 at Kalangi Village in Nyatike sub county within Migori county in the republic of Kenya he willfully and unlawfully did grievous harm to Maurice Awinda. 2. The brief facts of the case were that Maurice Awinda (PW1) testified that the Appellant is his cousin. That on 27th January 2025 at 10.00am, he went with his cousin Lawrence to search for the missing rope. After failing to find it in the field, they proceeded to the appellant’s home as they suspected he had previously untied their cattle and removed the ropes. They found the accused together with his mother and inquired about the missing rope. The appellant denied untethering the cow or having the rope. While they were still speaking with the accused's mother, the accused entered his house and later emerged carrying a panga. He cut him on the left hand from behind with the panga, causing him to lose consciousness. He regained consciousness later that night at Migori District Hospital where he had been admitted for treatment. 1. The appellant denied the charge and the prosecution called 7 witnesses to establish their case against the appellant. The appellant gave sworn testimony denying the offence called 2 witnesses. He claimed that it was the complainant who attacked and cut him. However, he did not explain how the complainant got the injuries. 2. Lazaro Okumu Odongo (PW4) working as a clinical officer at Migori County Referral Hospital assessed PW1’s injuries as grievous harm. He produced treatment notes dated 28 January 2025 marked MFI-1 and a P3 Form dated 28 January 2025 marked MFI-2. 3. The trial magistrate found the appellant guilty of the offence as charged, convicted him and sentenced him to serve 4 years imprisonment. 4. Being aggrieved by the above verdict, the Appellant lodged the instant appeal and set out the following Grounds of Appeal namely: 5. The trial court erred in both law and facts by ignoring to rely on the provisions of article 50(2)(g)(h) of the Kenyan constitution 2010. 6. The trial court erred in both law and facts by failing to consider that the ingredients of the offence herein were not proved to the required standard in law and facts. 7. The trial court erred in both law and facts by meting a harsh and excessive sentence in the circumstances despite the court's wide discretion to the mode of sentencing on humanitarian grounds by ether ordering for a non-custodial sentence i.e probation/C.S.O. or an option of reasonable fine terms. 1. The Appellant further filed amended grounds of appeal relating to the sentence. He informed the court that he had abandoned all the previous grounds of appeal and elected to proceed solely on an amended ground relating to sentence. He stated that after perusing the record of appeal, he opted to adopt a holistic approach in order to avoid wasting the court’s time. 2. The appellant filed his written submissions together with the amended grounds of appeal while the Respondent filed its submissions dated 14th May, 2026. The Judgment herein is based on the said written submissions which both parties relied upon in their entirety. 3. The Appellant submitted that he is remorseful and regretful and urged the court to exercise its discretion under Sections 362 and 364 of the Criminal Procedure Code and Article 165 of the Constitution to review, remit or reduce the sentence imposed by the trial court. 1. He prayed that the court considers imposing a non-custodial sentence, particularly probation or a Community Service Order, and submitted that the court possesses wide powers to issue appropriate orders in the interests of justice. 2. He further submitted that he is a first offender and urged the court to consider his personal circumstances. He stated that his mother is elderly, his father is deceased, and that his wife currently lives in a rented house after their home was burnt down by a mob in connection with the incident. He further stated that his children have dropped out of school due to lack of school fees as he was the sole breadwinner of the family. 3. The Appellant also submitted that he and the complainant are relatives and that they have initiated reconciliation efforts. He stated that they are presently on good terms and are working towards harmonious coexistence. 4. The Appellant further submitted that a non-custodial sentence would enable him to reconstruct his burnt house, reunite his family, support his wife, and resume his responsibilities as the family's breadwinner. 5. The Respondent submitted that the Appellant was properly convicted, his rights to legal representation were not violated by the trial court as the appellant was represented by an advocate throughout the trial. 6. Regarding whether the prosecution proved its case beyond reasonable doubt, the Respondent submitted that the offence of grievous harm contrary to section 231 as read with section 234 of the Penal Code requires proof that the victim sustained grievous harm, that the harm was caused unlawfully, and that the accused person caused or participated in causing the grievous harm. The Respondent further referred to the definition of grievous harm under section 4 of the Penal Code and argued that the evidence adduced before the trial court satisfied all the essential ingredients of the offence. 7. On the issue of sentence, the Respondent submitted that the sentence imposed by the trial court was proper and commensurate with the circumstances of the case and that there was no basis for interference by the appellate court. They relied on the ***Bernard Kimani Gacheru vs. Republic [2002] eKLR*** stated that: - *"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist."* 1. The Respondent maintained that the sentence imposed by the trial court was sufficient and appropriate in light of the circumstances of the case. The Respondent urged the court to find that the prosecution had proved its case beyond reasonable doubt and that the sentence meted out against the appellant was proper and should be upheld. 2. The Appellant was unrepresented on appeal. This court has carefully considered the Petition of appeal, and grounds of appeal, Appellant’s written submissions as well as those of the Respondent, the proceedings before the trial court and the judgment as well as the evidence on record. 3. Since the Appellant abandoned his earlier grounds of appeal, the only issue before this court is to determine is whether or not the sentence was excessive. 4. I appreciate the **Sentencing Policy Guidelines require the court** in sentencing an offender to take into account both aggravating and mitigating factors and that the aggravating factors include **use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender.** **That among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.** 5. From the evidence on record, PW1 testified that the assault arose from an inquiry into a missing rope where the accused suddenly turned violent, went to fetch a panga and cut PW1. Although there is no victim impact statement on record, the injuries suffered by the complainant as per the medical records were grievous. 1. It is trite law of practice that sentence is a matter that rests in the discretion of the trial court. In the case of ***Bernard Kimani Gacheru v. R [2002] eKLR*** stated that:- ***“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some or acted on a wrong principle. Even if the Appellate court feels that the sentence is heavy and that the Appellate court might itself not have passed that sentence, there alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already shown still exist.”*** 1. Additionally, an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances as was spelled out in those circumstances were well illustrated in the case of **Nilsson vs. Republic [1970] E.A. 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) C.CA 28 T.LR 364.*** 1. It is clear that the sentence provided for by **Section 234 of the Penal Code** for the offence of causing grievous harm is life imprisonment. The trial court considered the appellant’s mitigation and the probation report before sentencing him. No doubt sentencing is in the discretion of the Court. It was not demonstrated that the trial court abused or wrongly exercised its discretion. I find the 4-year sentence is within the legal parameters considering the circumstances of this case. 2. Having considered the evidence presented before the trial in its entirety, and the mitigating factors, I find that the 4-year sentence meted by the trial court lenient in the circumstances of the offence, the sentence prescribed in law as well as the grievous injuries suffered by the complainant. I decline to disturb the sentence as I find it appropriate. 3. Accordingly, the appeal fails and is hereby dismissed. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 9TH DAY OF JULY, 2026** **………………………** **W.N. MOLONKO** **JUDGE** ***Judgment delivered virtually in the presence of:-*** *Respondent - Absent* *Fredrick Omondi Ochieng - Appellant present* *Susan Nzioka – Court Assistant*