[2006] KEHC 1622 (KLR)
The court found that the testimony of the minor eyewitness, Irene Samba, was honest, truthful, and unchallenged, and was corroborated by the veterinary officer's evidence regarding the injuries to the cow. The appellant did not cross-examine the key witness or provide any evidence to rebut the prosecution's case....
Source-derived case information.
- Citation
- [2006] KEHC 1622 (KLR)
- Parties
- Appellant: Stanley I. Kinabu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 119 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence allowed in part.
- Legal Topics
- Injuring Animals, Sentencing Principles, Credibility of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stanley I. Kinabu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant for injuring an animal was supported by credible and sufficient evidence.
- 2 Whether the sentence of seven years imprisonment was excessive in the circumstances.
Ratio Decidendi
The court found that the testimony of the minor eyewitness, Irene Samba, was honest, truthful, and unchallenged, and was corroborated by the veterinary officer's evidence regarding the injuries to the cow. The appellant did not cross-examine the key witness or provide any evidence to rebut the prosecution's case. The court held that the land dispute between the appellant and the complainant did not provide a sufficient basis to discredit the eyewitness, who had no apparent motive to fabricate her account. Accordingly, the conviction was upheld as proper. On the issue of sentence, the court noted that the maximum penalty for injuring an animal is fourteen years imprisonment, but considered...
Court Disposition
Appeal against conviction dismissed; appeal against sentence allowed in part.
Orders
- Conviction upheld.
- Sentence reduced from seven years to four years imprisonment.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Criminal Appeal 119 of 2005
STANLEY I. KINABU………………...............................................……………APPELLANT
VERSUS
REPUBLIC…………………………...........................................……………RESPONDENT
JUDGMENT
The Appellant was tried at the Resident Magistrate’s Court at Wundanyi and convicted of the offence of injuring an animal contrary to Section 338 of the Penal Code and sentenced to seven years imprisonment. He has appealed against the said conviction and sentence.
Before me as before the lower court he maintained that he knew nothing about the charge. He said that he has had a long standing land dispute with the complainant PW 1. That, PW 1 confirmed in his testimony and added that he and the Appellant have for over 12 years not been in talking terms though they are immediate neighbours.
The main evidence however against the appellant is not that of the complainant but that of PW 2 a 10 year old school girl. The girl, though of tender years, was after vior direexamination found to understand the meaning of an oath and allowed to testify on oath. She said that on the 14th April 2005 her parents left her at home with her brother Phillis Samba. As she cut grass for their two cows one of them cut the rope with which it was tethered and went over to the Appellant’s farm. When she attempted to go and drive it back, the Appellant threatened her. He then cut the cow thrice in the middle of its left hind limb between the root of the tail and the hip. The cow later alone went home and when her father returned home she reported the matter to him.
The evidence of the girl was corroborated by that of the veterinary officer, Boniface Charles Mwangemi Makuko PW 3 who treated the cow for the cuts. He said the cow had a 5 cm x 15 cm cut wound on gluttal muscle of the left hind limb.
Like the learned trial magistrate I find that the girl Irene Samba PW 2 was a honest and truthful witness. The Appellant did not cross-examine her or in any way challenge her evidence. She had no reason to lie against the Appellant. The land dispute between her father and the Appellant could not have made her fabricate a story against the Appellant, that is if she knew about it at all. I am satisfied that there was sufficient and credible evidence against the Appellant and his conviction was therefore proper. I accordingly dismiss the appeal against the conviction.
On sentence the offence with which the Appellant was charged carries a maximum sentence of 14 years imprisonment. The 7 years imprisonment imposed upon the Appellant cannot be said to be harsh. However given the fact that the animal must have fully healed and that the Appellant is a first offender I am inclined to interfere with it. I reduce it to four (4) years imprisonment.
Save for the appeal against sentence which I have reduced to four years imprisonment this appeal is otherwise dismissed.
DATED and delivered this 4th day of July 2006.
D. K. MARAGA
JUDGE