[2022] KEHC 3325 (KLR)

Republic v Meyo & 4 others (Criminal Appeal E016 of 2021) [2022] KEHC 3325 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3325 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E016 of 2021

KW Kiarie, J

July 5, 2022

Between

Republic

Appellant

and

John Ouma Meyo

1st Respondent

Damaris Ochieng Meyo

2nd Respondent

Amos Odhiambo Meyo

3rd Respondent

Jasper Oyoo Meyo

4th Respondent

Matayo Otieno Meyo

5th Respondent

(From the original conviction and sentence in Criminal case No. 139 of 2018 of the Senior Principal Magistrate’s Court at Oyugis by Hon. Celesa Okore– Principal Magistrate)

Judgment

1. John Ouma Meyo, Damaris Ochieng’ Meyo, Amos Odhiambo Meyo, Jasper Oyoo Meyo and Matayo Otieno Meyo the respondents herein, were charged of the offence of grievous harm contrary to section 234 of the Penal code.

2. The particulars of the offence were that on April 25, 2018 at Kogembo sub location in North Rachuonyo Sub County of Homa Bay County, unlawfully did grievous harm to Andrea Owiti Meyo.

3. The first respondent was convicted of the offence and committed to 2 years’ probation. The second, third, fourth and fifth respondents were acquitted. The state was dissatisfied by both the sentence and acquittal and filed this appeal.

4. The appellant through Mr. Ochengo raised the following grounds of appeal:a.That the sentence herein of two (2) years’ probation was far too lenient for an offence that attracts life imprisonment.b.That the learned magistrate failed to appreciate and analyze the evidence on record and erroneously acquitted the 2nd, 3rd, 4th and 5th pursuant to section 215 of the Criminal Procedure Code.c.That the appellant requests for enhancement of sentence in respect of the 1st respondent.d.That the appellant seeks the High Court to hear and determine the appeal exhaustively in respect of the acquittal 2nd, 3rd, 4th and 5th respondent.

5. The respondents were represented by Mr. Bana, advocate. They opposed the appeal on the following grounds:a.The probation order was made after the consideration of all the relevant facts.b.That the acquittal of the second, third, fourth and fifth respondents was grounded on evidence.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic[1972] EA 32.

7. Andrea Owiti Meyo (PW1) was the complainant herein. He testified that on April 25, 2018 at about 8. 30 p.m. his mother went and called him and told him of a family meeting he was supposed to chair. He, together with his wife Grace Atieno Owiti, accompanied her to go to the venue. On the way, Damaris Ojwang emerged and slapped his wife who fell down. While he was questioning Damaris over her action, John Ouma, Amos Odhiambo, Mathayo Otieno and Jasper Aloo went out from his mother’s house. This is when the four started to beat him.

8. In the course of beating him, John held his hand, Amos held him by the neck. Mathayo held him by the stomach while Jasper held him by the leg. John asked for the machete from Amos and used it to cut him on the leg.

9. Although during cross examination he testified that the second accused slapped him on the face and the back using a machete, this did not flow from his narration of the events. He may have been tempted to say so for he accused her of starting the incident by slapping his wife.

10. The evidence of Jennifer Auma Meyo (PW2) was that Damaris did not assault the complainant.

11. Since there was no other evidence to link her to the offence, the learned trial magistrate correctly made a finding that the prosecution did not prove their case against her. The acquittal in respect of this accused cannot be faulted.

12. Jennifer Auma Meyo (PW2) testified that when she rushed to the scene where the complainant was being beaten, she did not recognize anybody for it was dark. We are therefore left with the evidence of the complainant on what transpired. In Kiilu & Another V. Republic[2005] 1KLR 174 the Court of Appeal held:Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error.

13. Although the incident took place in a dark night, the complainant and his attackers were siblings. The evidence of the complainant was that his attackers were talking. The trial court stated:Secondly on the issue of identification, it is clear that the parties herein are members of one family. They know each other even by voice and could therefore identify themselves [sic] even in darkness. I believe that accused were properly identified and that accused 1 was positively picked out as the one who cut off the complainant’s right leg, hence occasioning him grievous harm.I agree with this finding. What is baffling is why she exonerated the 3rd, 4th and 5th accused persons. She did not give her reasons of doing so.

14. The blow that led to the amputation of the leg of the complainant was by the first accused. Section 21 of the Penal Codeprovides:When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.In Republic vs. Tabulayenka s/o Kirya, [1943] EACA 51 it was held that:The common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.We can infer common intention from the conduct of each accused in relation to the incident.

15. I therefore find that accused1, 3, 4 & 5 had common intention when they attacked the complainant herein. I accordingly set aside the order of acquittal by the learned trial magistrate and find that the prosecution has proved beyond any reasonable doubt the offence of grievous harm contrary to section 234 of the Penal Code. I find each guilty and accordingly convict him of the offence.

16. The prosecution contended that the probation order was too lenient.

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

18. It is trite law of practice that 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.

19. I have evaluated the evidence on record and concluded that in the circumstances of the offence, the probation order by the learned trial magistrate was inordinately low and not proportionate to the offence. The complainant lost his right leg and I am therefore persuaded to interfere with the said order. I set aside the order and an appropriate sentence will be meted out.

DELIVERED AND SIGNED AT HOMA BAY THIS 5THDAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE