https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11067

Okech v Republic (Criminal Appeal E083 of 2025) [2026] KEHC 11067 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 11067 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E083 of 2025 AK Ithuku, J July 10, 2026 Between Spereus Gor Okech Appellant and Republic Respondent Judgment 1.The appellant Spereus Gor Okech was charged with two others with the offence of grievous harm contrary to Section 234 of the Penal Code. The particulars were that on 18/1/2025 at Super Digital Bar in Muhoroni Sub-County in Kisumu County the accused present with others not before court intentionally and unlawfully did grievous harm to Carrey Francis. 2.The appellant denied the charge after a full trial he was convicted vide a judgment delivered on 13/8/2020 by Hon. M.N. Olonyi RM. On 20/8/2025 he was sentenced to ten (10) years imprisonment. 3.Aggrieved with both conviction and sentence the appellant lodged the instant appeal listing the following grounds: -a.That the learned magistrate erred in both law and fact by failing to establish that the prosecution did not prove its case beyond reasonable doubt.b.That the trial magistrate erred in law and in fact in concluding and arriving at a decision while relying on evidence that was full of contradiction ad without analysing the evidence on record.c.That the trial magistrate erred in law and in fact in failing to appreciate that the prosecution case lacked corroborative evidence to support its case. 4.This appeal was canvassed by way of written submissions. The appellant main submission was that the evidence was not sufficient to establish proof beyond reasonable doubt. That it was replete with contradiction and the defence was not given due consideration. 5.The respondent after setting out the evidence submitted that the trial court meticulously analysed the evidence and came to the right conclusion. That the elements of the charges of grievous harm were proved to the required standards. The state urged that the appeal be dismissed. 6.This is the first appeal. The court is enjoined to re-evaluate and re-consider the evidence tendered before the trial court. As held by the Court of Appeal in Okeno versus Republic (1977) EAL 32 and Mark Oiruri Mose Vs Republic (2013) eKLR the court on first appeal evaluates and analyses the evidence on record afresh. It then comes to its own independent conclusion. At all times it has to bear in mind that the trial court had the advantage of observing the demeanour of the witness as they testified. 7.For a conviction on a charge of grievous harm to stand the prosecution has to prove beyond reasonable doubt the following ingredients:i.That the complainant sustained actual bodily harmii.That it is the appellant who unlawfully occasioned the harm on the complainant. 8.The brief background of this case is that the complainant Carry Francis Odwa, a health worker, had on 18/1/2025 retreated to a watering hole known as Super Digital Bar where he was watching football with friends. The match was watched as alcoholic drinks flowed. 9.PW1 testified that a commotion broke out involving a waiter known as Evelyne and two ladies at their table. One Vincent Opeyo who had been charged together with the appellant got involved. That he punched the complainant. The appellant joined the fight attacking the complainant with a rubber whip. A third man hit him with a chair. The complainant fell to the ground as the assailants continued hitting him. 10.PW2, David Matheri, is a clinical officer. He is the one who examined the complainant after he was taken to Muhoroni Sub-County Hospital by the police. He assessed the injuries as grievous harm. He provided P3 form, x-ray form and treatment forms. He was of the view that the injuries were permanent. 11.PW3 Franey Atieno Adoyo testified as eye witness. She generally reported what PW1 told the court. The investigating officer PW4 stated that when he recorded statements to the complainant had visible injuries on his body. 12.The appellant in his defence confirmed that he was at the bar at the material time. He said that he was taking his drinks while watching football. He denied attacking the complainant. He stated that he noticed the commotion and left for home. He called one witness. The witness RW6 stated that he saw the appellant at the bar. That he was seated at the counter. 13.On the question whether the complainant sustained grievous injuries, we have the testimony by the complainant and PW3. PW1 gave a graphic narration of the blows inflicted on him by three assailants including the appellant. PW3 witnessed the attack. 14.The clinical officer produced a P3 form. He assessed the injuries suffered as grievous harm. There was no contradiction evidence on this. I find no reason to disturb the trial court’s finding that the complainant sustained grievous harm. It is also my independent conclusion. 15.Also to whether the injuries were occasioned by the appellant we had two eye witnesses called by the prosecution. The appellant is a person known to the witnesses. The appellant in his statement in defence confirmed his presence at the scene. Of course he bore the burden. He had been placed there by people who knew him. He got involved in a bar brawl and assaulted the complainant causing grievous harm. 16.I have considered the submissions on contradictions. They are on few discrepancies about time. The incident occurred at night in a bar where most people were at different levels of inebriation. To expect precision in the time keeping will not be realistic. The witnesses all spoke about the same range within the night. I find that the disclipances are not material. In the result I am satisfied that it is the appellant with others not before court who assaulted the complainant causing grievous harm. 17.Was the assault justified? Throughout the trial the appellant did not state that he acted in self-defence. There were no suggestions that he was provoked. Even the love triangle angle alluded to the investigating officer was not substantiated. The attack was unprovoked and unlawful. It was also intentional. 18.Flowing from above it is my finding that the respondents of the offence of grievous harm were proved beyond reasonable doubt. I find no reason to disturb the conviction arrived at by the trial court. The appeal on the same is without merit. It is dismissed. 19.The appeal on sentence is also noted. The appellant was sentenced to ten years’ imprisonment. 20.At the appellate stage this court is guided on principles set out by the court of Appeal on Bernard Kimani Gacheru versus Republic (2002) eKLR. The court stated: -“It is now settled law following several authorities by the court and the High Court that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must detail on the facts of the 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 overlooks some material factors and took into account the wrong material and acted on the 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 as not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matter already stated is shown to exist.” 21.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.” 22.A sentence of ten years imposed by the trial court is clearly within the law. The question is whether in the circumstances it is manifestly excessive or harsh. 23.The Supreme Court gave some guidelines on sentencing on Francis Karioko Muruatetu & Another versus Republic (2017) eKLR. In that case the court stated that the following mitigating factors will be applicable.a.Age of the offender.b.Being a first offender.c.Character and record of the offender.d.Whether the offender pleaded guilty.e.Commission of the offence imposed to gender based violence.f.Remorsefulness of the offender.g.The possibility of reform is social and adaptation of the offender.h.Any other factor that the court considers relevant. 24.Similarly, in the case of Daniel Kipkosgey versus Republic (2021) eKLR the Court of Appeal stated:“...we observed that the purpose and objective of sentencing as stated on the judicial sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality deterrence and rehabilitation are adhered to...” 25.Guided by the principles above I note the sentence imposed. I have considered the injuries suffered by the victim. I have also benefited from the pre-sentence inquiry report prepared and presented to the trial court. The appellant was a first offender. The offender is now around 48 years old. 26.Going by the nature of injuries sustained and the sheer violence employed by the appellant I am of considered view that a custodial sentence was merited. The main objective of sentence is rehabilitation. It is hoped that after serving a jail term the appellant will come out a better person for himself and the society. To achieve this objective, the custodial sentence should not be too lengthy. In this case I am of the view that seven years will be long enough for the appellant to reflect and learn his lesson. He will also get rehabilitated. For that reason, I hereby allow the appeal on sentencing by reducing the custodial sentence from 10 to 7-year imprisonment. 27.In conclusion the appeal is disposed as follows: -a.The conviction is upheld and the appeal on the same dismissed.b.The sentence is hereby reduced from ten to seven years’ imprisonment. 28.It is so ordered. DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS 10TH DAY OF JULY 2026.HON. ALEX. K. ITHUKUJUDGEMs. Onyango for the state.The appellant appearing virtually from Kisumu Maximum Prison.Mr. Gitonga – Court Assistant