[2009] KEHC 164 (KLR)
The High Court held that the trial magistrate, having had the opportunity to observe the witnesses and assess their credibility, was entitled to make findings of fact and exercise discretion in acquitting the accused. There was no sufficient basis for the appellate court to interfere with these findings, as no clear...
Source-derived case information.
- Citation
- [2009] KEHC 164 (KLR)
- Parties
- Appellant: Republic of Kenya; Respondent: Paul Kibet Chepkwony & Others
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 64 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Grievous Harm, Acquittal, Appeal by State, Burden of Proof, Criminal Procedure, Defective Charge Sheet
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Appellant
Paul Kibet Chepkwony & Others
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in acquitting the accused persons of the offence of grievous harm contrary to section 234 of the Penal Code.
- 2 Whether the evidence adduced was sufficient to warrant a conviction.
- 3 Whether the charge sheet was defective and if this affected the outcome of the trial.
Ratio Decidendi
The High Court held that the trial magistrate, having had the opportunity to observe the witnesses and assess their credibility, was entitled to make findings of fact and exercise discretion in acquitting the accused. There was no sufficient basis for the appellate court to interfere with these findings, as no clear error of law or fact was demonstrated by the State. The appeal was therefore dismissed, and the acquittal of the respondents was upheld. The court further noted that the complainant retained the right to pursue a civil claim in tort for damages if so advised.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The acquittal of the respondents is upheld.
Full Case Text
Judgment text and source record
51 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Criminal Appeal 64 of 2003
1. Criminal Law
2. Criminal Appeal by STATE
(i) Offence of original Criminal Case Grievous Harm Contrary to Section 234 Penal Code.
Particulars of offence.
On 17th May 2001 at Iraa village within Kericho District of the Rift Valley Province jointly unlawfully did grievous harm to Samwel Kipkoech Lelgo
(ii) Complainant went to Respondent No.1’s land.
(iii) Intention to remove logs and timber.
(iv) accuseds/respondents attacked him.
(v) Trial magistrate acquitted the respondent and co-accused.
3. appeal by State
Trial magistrate erred in evidence by acquitting the accused persons.
4. Respondent
(i) Charge sheet defective
(ii) no case made out.
5. Held; appellant dismissed.
6. Case Law
7. advocate.
- S. K. Sigira Advocate instructed by the firm of M/S Siele Sigira & Co. Advocates for the Respondents.
- B. L. Kivihya State Counsel instructed by the Attorney General for the Appellant
(Consolidated with CRA’S NOS.65 – 68 of 2003)
REPUBLIC - APPELLANT
VERSUS
PAUL KIBET CHEPKWONY & OTHERS - RESPONDENT
JUDGEMENT
I.Background.
1. This appeal is from the subordinate courts of Kenya at kericho.
2. The five respondents were original charged with the offence of grievous harmcontrary tosection 234of thePenal Code.
3. The particulars of offence being;
On 17th day of May 2001 at Iraa village within Kericho District of the Rift Valley Province jointly unlawfully did grievous harm to Samwel Kipkoech Lelgo.
4. A plea of not guilty was entered and the case proceeded to trial on a number of occasions.
5. After trial the five respondents were acquitted.
6. The State appealed to this High Court on 4th December 2002. The appeal has been pending since then.
7. The reasons of delay inter-alia is that the case could not be reached and the accused person had no proceedings to prepare their case. They were later presented by an advocate.
II. Appeal.
8. The State prays that the appeal be allowed. The case against the accused was proved beyond any reasonable doubt. The trial magistrate should have convicted. That there was no contradiction of the case and extraneous evidence was taken into account.
9. In reply the advocate for respondent stated that the case against the respondent was in order.
10. The State wants a re-trial.
III. Opinion.
11. The trial magistrate is the one who sees the demeanor of witnesses. The evidence recorded before the magistrate and reasons in coming to their discrator decision is at their direction.
12. In this appeal I would not interfere in the magistrate’s
findings.
13. This appeal must fail. The complainant may file a civil suit in Tort against the respondents and for damages.
14. The appeal is dismissed.
Dated this 15th day of October 2009 at Kericho
M. A. ANGAWA
JUDGE
Advocates
- S. K. Sigira Advocate instructed by the firm of M/S Siele Sigira & Co. Advocates for the Respondents.
- B. L. Kivihya State Counsel instructed by the Attorney General for the Appellant