[2023] KEHC 26277 (KLR)

Wambua v Republic (Criminal Appeal E079 of 2021) [2023] KEHC 26277 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26277 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E079 of 2021

FROO Olel, J

December 4, 2023

Between

Martin Mwangangi Wambua

Appellant

and

Republic

Respondent

Judgment

A. Introduction 1. This appeal arises from the conviction and sentencing of the appellant by Hon. Benard Kasavuli, Principal Magistrate in Mavoko chief Magistrate court Criminal case no. 373 of 2017, where he had been found guilty of the offence of causing grievous harm contrary to Section 234 of the penal code and accordingly was sentence to serve a term of ten (10) years imprisonment.

2. The appellant being dissatisfied by the said conviction and sentence did file his petition of appeal dated 10th December 2021 and later amended the same as filed on 15th August 2022 where he raised the following grounds of appeal namely that;a.The learned magistrate erred in law and fact in failing to consider that the incident was an accident caused by the recklessness and/or negligence of the complainant who admitted to being to breach of traffic rules by opening the door of a moving motor vehicle.b.The learned magistrate erred in law and fact by failing to appreciate that the chain of causation in regard to the incident was instigated by a person other that the accused during the occurrence of the incident and failing to apply the doctrine of transferred malice to the facts at trial.c.The learned trial magistrate erred in law and fact by failing to notice the contradictions of PW1 and PW2 evidence and statements.d.The learned magistrate erred in law and fact and misdirected himself in failing to consider that the charge sheet was defective having invoked the state of mind of the accused and failing to cite Section 231 of the Penal Code that provides the element of mens rea for the offence of grievous harm.e.The learned magistrate erred in law and fact and misdirected himself into taking into account irrelevant considerations and failed to take into account that the complainant and the accused persons were strangers and that there was no malice aforethought or intentions or predetermined mind to cause grievous harmf.The learned magistrate erred in law and fact and failed to take into account that the prosecution had not proved mens rea to the required standard against the accused person to warrant the sentence issued.g.The learned magistrate erred in law and fact and misdirected himself in failing to find that the prosecution had failed to prove its case against the appellant beyond reasonable doubt.h.The learned magistrate erred in law and fact and misdirected himself in failing to take into account relevant considerations thereby arriving at wrong findings and issuing a sentence that was excessive in the circumstances.

B. Background facts 3. PW1 John Musembi Makau testified that he was a matatu conductor of motor vehicle registration number KBN 667N and on 09. 08. 2017 at about 6. 30am he was on board the said matatu coming from Kitui to Nairobi, though he wasn’t the one collecting fare. Upon reaching Mlolongo stage kubwa about 10 passengers alighted and after about two minutes a passenger started to lament that the matatu had not stopped for him to alight at the last bump at Mlolongo. He did ring the bell and went and opened the door. In the process he heard the said passenger lamenting that he will teach him a lesson. By then he did not know the said passenger and only knew him by appearance having interacted within the said matatu.

4. Suddenly the said passenger pushed him from behind while the matatu was in motion, he fell outside on the road and was gravely injured. He was thereafter rushed to Shalom hospital. As a result of the fall he had broken his ribs and right leg and stayed in hospital for two and half weeks but was yet to fully recover from his injuries. Before the accident he had not known the appellant as it was the first time he had boarded the said matatu at KMC stage and only came to find out that the appellant was the one who pushed him after he left hospital. PW1 identified the appellant on the dock and also confirmed that had seen him at the police station earlier when he went to record his statement.

5. In cross examination PW1 confirmed that the appellant had board the matatu at KMC stage which is the same stage known as Devki. Upon reaching Mlolongo the appellant had started quarrelling with the other conduct who was collecting money and he had advised the said conductor to give the appellant his change. In re-examination PW1 confirmed that before being pushed out of the moving motor vehicle the appellant and the other conductor who was collecting money/fare had been quarrelling behind him and he had not quarrelled with the accused.

6. PW2 Alex Kasui Mbuvi testified that he is normally a matatu driver but on 09. 08. 2017 he was the conductor collecting fare of motor vehicle registration number KBA 667N which was enroute to Nairobi from Kitui. When they reached Devki / KMC stage many passengers alighted and others boarded after which he started to collect fare from the front going behind. One of the passengers who had boarded at KMC/Devki stage was the appellant and he was to alight at Mlolongo. He paid his fare and PW2 continued to pick fare from other passengers. PW2 further testified that PW1 was the other conductor who was helping passenger’s alight. Upon reaching Mlolongo stage the matatu stopped for passengers to alight, while other new passengers boarded and he remained behind collecting fare.

7. As the matatu started to move on, the accused started to push the PW1 down and due to the commotion, he went rescue is colleague and was involved in the scuffle with the appellant as a result of which he punched the appellant. In the process the appellant pushed PW1 off the moving matatu and also jumped off. He rang the bell and the matatu stopped. PW1 on falling had been critically injured and was not talking. The appellant tried to escape but as chased by members of the public who caught up with him and brought him back. PW1 was taken to the hospital while the accused was taken to the police station.

8. PW2 confirmed that the appellant was previously not a person known to him and he had only seen him for 30 minutes during the trip from Devki/KMC stage to Mlolongo and then to the police station. During the incident he had a good opportunity to see him well and had not quarrelled with him. In cross examination PW2 insisted that the appellant had paid his fare of Ksh.30/= and he did not owe him any change. Such allegation was not true. PW1 was the conductor on the door and he needed to have waited for the motor vehicle to stop for alighting.

9. PW3 Gideon Kirimi stated that he was a clinical officer based at Machakos hospital but previously at Athi river hospital. He graduated from KMTC in 2006 and had 14 years’ experience. He had filled the P3 form based on treatment documents seen from Shalom hospital where the patient had been treated. The patient (PW1) had rib and chest injuries and a fractured leg. At the time of examination, he had crutches with external fixation. His ribs were fractured on both sides (4 ribs, 2 on each side). PW3 produced the discharge summary, discharge letter from Shalom hospital and P3 form as Exhibit 1 – 3. The appellant did not ask the doctor any questions.

10. PW4 Cpl Florence Ngomi testified that she was the investigating officer. On 09. 08. 2017 she was on duty at Athi river police station, when the appellant was brought to the police station by the driver and conductor of motor vehicle KBN 667N matatu and they claimed that he had pushed PW1 off the matatu while it was moving and, in the process, injured him. PW1 had been rushed to Shalom hospital. She booked the appellant and later went to shalom Hospital, where she confirmed that indeed PW1 was injured and unconscious. She also visited the scene of the incident which was Mulleys stage as one was heading to Nairobi. The incident had occurred at about 6. 30am. She recorded the witness statements and charged the appellant.

11. The appellant was placed on his defence and in his sworn evidence confirmed that he boarded the suit matatu at Devki stage to Mlolongo and gave the conductor Ksh.100/=. The fare was 30/= and expected his change of sh.70/=. They arrived at Mlolongo and he remained inside the motor vehicle waiting for his change. PW1 who was also the conductor went out and told PW2 to give the appellant his change but before he could alight the driver drove off and in the process PW1 fell off. PW2 started to beat him and other people came and together they took PW1 to hospital while he was taken to the police station and booked in the cells.

C. Submissions Appellant Submissions 12. The appellant did file his submissions on 10. 03. 2023 and recapped the evidence as presented. The appellants counsel submitted that the offence of grievous harm under Section 234 of the penal code contained two elements namely mens rea and actus reus and that the mens rea element for the offence was found under Section 231 of the penal code as read together with section 9 of the penal code which provide for the principle of responsibility for a criminal offence. The importance of this was appreciated in Duncan Mwai Gichuhi versus Republic (2015) eKLR.

13. It was noteworthy that the charge sheet omitted the aspect of mens rea as an importance element of the charge thereby removing the burdens of proving the same off the shoulders of the prosecution. PW1 injuries had been instigated by an argument between the appellant and PW2, who had subsequently punched the appellant. The evidence of record placed PW1, PW2 and the complainant at the door of the matatu before PW1 is said to have fallen off. Under the circumstances, it cannot be said that the appellant had any mens rea a propos of infliction injuries suffered by the PW1 and thus the charge sheet as drawn was defective due to this omission and secondly unproved beyond reasonable doubt.

14. It was the appellant’s further submission that the evidence place PW1 on the matatu door which was open and the motor vehicle was moving, PW2 and the appellant were behind. PW1 confirmed that he heard an exchange of words behind him (this being an apparent argument between the appellant and PW2). Accordingly, the complainant fall could be attributed to number of factors in the circumstances it was unclear whether;a.Being on the open door of a moving matatu, the motor vehicle came to a sudden stop and/or swerved thereby hurling the complainant out of the motor vehicle which PW2 and the appellant were exchanging behind PW1. b.Whether the blow suffered by the appellant at the behest of PW2 caused PW1 to fall over.

15. The appellant invited the court to consider whether the words heard by PW1 before he fell off the matatu to the extent that someone said he would teach him a lesson could have been said by a difference person other than the appellant or if indeed it was taken out of context and was uttered during the argument between the appellant and PW2.

16. The appellant also challenged his identification. Both PW1 and PW2 were strangers and confirmed that they only saw the appellant for the first time on the said accident date. No identification parade was conducted and as such there was no positive identification of the appellant. The facts as presented did cast a wide aspersion as to the manner in which the appellant was identified by the complainant as having committed the offence. Reliance was placed on David Mwita Wanja and 2 others versus Republic (2007)eKLR.

17. The appellant did file supplementary submissions on 14 June 2023 and reiterated his earlier submission that the charge sheet did not capture an essential ingredient of the offence of grievous harm being mens rea. Reliance was placed on Sigilani versus Republic (2004) 2 KLR 480. Secondly the appellant submitted that burden of proof was not established in the evidence presented. Reliance was placed on Woolmington versus DPP 1935 AC 462, Millan versus Minister of Pensions 1942 AL, Kamau Njoroge versus Republic (1987) eKLR and David Njuguna Wairimu versus Republic (2010) eKLR.

18. The final issue raised by the appellant was that the sentence melted out was manifestly excessive. The court had discretion to sentence the offender to a shorter period of time and/or to impose a fine. The appellant if otherwise found guilty was first offender and the court should have imposed a lesser sentence.

19. Appellant did pray that this appeal be allowed and the conviction and sentence be set aside.

Respondent Submissions 20. The Respondent did file their submission on 27th April 2023 in response to the issue of mens rea. It was their contention that Section 231 of the Penal code brought out the element of mens rea which the evidence of PW1 and PW2 captured/covered. PW1 had clearly stated someone touched him from behind claiming he would teach him a lesson. It was then that the appellant pushed him outside the matatu as PW2 rushed to rescue him. It was clear from the evidence adduced that it was the appellant who pushed PW1 off the suit motor vehicle and his action was instigated by the appellant’s argument with PW2 over unreturned change/bus fare. His action was thus preconceived and the element of mens rea proved.

21. The identity of the appellant was not an issue as he was arrested by members of the public as he tried to run away. Further the appellant in his evidence admitted being inside the matatu and arguing over change with PW2. The evidence presented was reliable and cogent and indeed it was proved beyond reasonable doubt that it was the appellant who pushed PW1 and as a result he was injured.

22. On sentencing Section 231 did provide for life imprisonment as the maximum sentence for grievous harm. The sentence of 10 years was indeed very lenient and the courts discretion could not be faulted. The prosecution had proved its case and the appellant was properly convicted. This appeal was unmerited and should be dismissed.

Analysis and Determination 23. This being the first appeal, this court is under duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inference of facts so as to come to its own independent conclusion as to whether or not, the decision of the trial court can be sustained. An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. (See Padya vs Republic (1957 EA. 336) and the appellate court’s own decision on the evidence. The first court must also itself weigh conflicting evidence and draw its own conclusion (see shantilal M Ruwala Vs Rep (1957) EA. 570. )

24. It is also not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported.in doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. (See Peters Vs Sunday Post (1958) E.A 424).

25. The appellant was charged with the offence of causing grievous harm contrary to section 234 of the penal code. The said section is the punishment section of the said charge; the charge sheet ought to have indicated section 231 as read with section 234 of the penal code. The appellant did raise this as an issue in his submissions, that the charge sheet was defective for not clearly stating the particulars of the offence and fell foul of provisions of section 134 of the evidence Act.

26. In the case of Isaac Omambia versus Republic (1995)eKLR the court of Appeal considered the ingredients necessary in a charge sheet and stated as follows;“In this regard, it is pertinent to draw attention to the following provisions of Section 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of a charge. Every charge or information shall contain and shall be sufficient, if it contains a statement of the specific offence of offences with which the accused is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”

27. Further to court of Appeal in Peter Ngure Mwangi versus Republic (2014)eKLR quoted with approval that Isaac Omambie case or further stated that;“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold Criminal pleadings, Evidence and Practice (40th Edition) page 52 paragraph 53, this court stated in Yongo versus Republic (198)eKLR that “In England it has been said; an indictment is defective not only when it is bad on the face of it but also;i.When it does not accord with the evidence before the committing magistrate either because of inaccuracies or deficiencies in the indictment or because the indictment charges/offences not disclose in the evidence or fails to charge an offence which is disclosed therein.ii.When for such reason it does not accord with the evidence given at the trial.

28. The court of Appeal in Benard ombuna Vs Republic also addressed the issue of a defective charge sheet in the following terms;“In a nutshell, the test of whether a charge sheet is fatally defective is subjective rather than formalistic. Of relevance is whether a defect on the charge sheet prejudices the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”

29. In Bnd Vrs Republic (2017) Eklr It Was Held As follow’s“our case law has given crucial pointers. Two cases are pertinent: the case of Yosefa vr Uganda (1969) E.A. 236- a decision of the court of Appeal- and sigilani Vrs Republic (2004) 2 KLR 480- A high court decision by Justice Kimaru. Both hold that a charge sheet is fatally defective if it does not allege an essential ingredient of the offence……..The answer from our decisional law is this: The test whether a charge sheet is fatally defective is a substantive one: was the accused person charged with an offence known to law and was it disclosed in a sufficient and accurate fashion to give an accused adequate notice of the charges facing him? If the answer is in the affirmative it cannot be said in any way other than a contrived one that the charges were defective……. The question is did this prejudice the appellant and occasion miscarriage of justice? I do not think so. There is no question in my mind that the accused person clearly understood the charges facing him well enough to understand the ingredients of the crime charged so that he could fashion his defence. In this case, he understood it well enough to offer an explanation when the facts were read out to him.”

30. Section 382 also gives guidance on whether even with such defect justice could still be met or whether the defect is curable. Section 382 of the criminal procedure code provides that;“ subject to the provision’s hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission, or irregularity in the complaint, summons, warrant, charge proclamations, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under the code, unless the error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question of whether the objection could and should have been raised at an earlier stage in the proceedings. It follows therefore that the court in determining whether a defect caused injustice has to have regard whether the objection should have been raised at an earlier stage in the proceedings”.

31. Applying the above test, it is clear that the appellant fully participated in the proceedings and cross examined all the witnessed. This denotes that he understood the particulars of the charge he faced. The appellant also did not raise any objection as to the facts raised in the charge sheet and such cannot be said to have been prejudiced in any manner. This ground of appeal therefor cannot hold.

Burden of Proof 32. The conceptual framework for burden of proof to be discharged by the prosecutor is beyond reasonable doubt. In Viscount Sankey LC in the case of H.L Woolmington Vs DPP {1935} A.C. 462 pp 481 did describe burden of proof in criminal matters as;“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defendant’s insanity and subject also to any statutory exception. If at the end and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether {the offence was committed by him} the prosecution has not made out the case and the prisoner is entitled to be acquittal. No matter what the charge or where the trial, the principal that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

33. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows;“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”

34. For the appellant to be convicted of the offence of doing grievous harm contrary to section 231 as read with section 234 of the penal code, the prosecution had to prove each of the following essential ingredients beyond reasonable doubt;a.The victim sustained grievous harm.b.The harm was caused unlawfully.c.The accused caused or participated in causing the grievous harm.

35. Concerning the first element, bodily “harm” means any bodily hurt, disease or disorder whether permanent or temporary. The mature of grievous harm is defined by section 4 of the penal code as any harm which amounts to a main or dangerous harm or seriously or permanent injuries to health or which are likely so to injure health, or which extends to permanent disfigurement or to a permanent or serious injury to any external or internal organ, membrane or sense.

36. The specificities of “grievous harm” therefore are; (1) In the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, the amount to bodily harm, the injury to health need not be permanent (2) a mental injury may amount to grievous harm but not to bodily harm (3) the injury must be “of such a nature as to cause or be likely to cause” permanent injury to health.

37. From the evidence presented, it is not in doubt that PW1 was aboard the suit matatu registration Number KBN 667N on 09. 08. 2017 at about 06. 30am when he was pushed out of the said matatu while it was moving in consequence whereof the PW1 suffered grievous injuries, including fractured on both sides (4 ribs, 2 on each side), and a fractured leg. At the time of examination, by PW3, he was using crutches with external fixation of the leg still in place. The said injuries were classified as grievous harm in the P3 report present in court.

38. PW1 was clear in his evidence that,” I went and opened the door lock. I heard someone touching me from behind claiming he will teach me a lesson. The passenger pushed me outside the matatu as it was in motion. I only knew the passenger by appearance and it was my first time to carry him.”

39. PW2 was also a co- conductor in the said matatu and testified that the appellant pushed PW1 off the moving matatu while the said motor vehicle was moving. The appellant also jumped off and started to run away and was chased and arrested by members of the public who caught up with him and brought him back. They took PW1 to hospital and the appellant was taken to the police station. In defence the appellant confirmed being in the said matatu and confirmed that he had a dispute with PW2 over bus fare. He alleged that PW1 fell off the matatu as the driver was taking off and after the motor vehicle stopped they went to where the complainant had fallen. PW2 started to beat him and other people came and they took PW1 to hospital.

40. From the analysis of the facts, it is quite obvious that the appellant had a dispute with PW2 over return of his bus fare change, but there is no doubt whatsoever that he is the one who pushed PW1 off the moving motor vehicle as a result of which Pw1 sustained grievous injuries. The said injuries were confirmed by PW3 and this did corroborate the evidence of PW1 & PW2. PW2 clearly saw what the appellant did and went to rescue PW1. In the process he punched the appellant who also alighted. The appellant attempted to run away but was arrested by members of the public.

41. The appellant in his submissions alleged that he was not properly identified, but the issue of identification does not arise in this instance as the appellant was arrested at the scene of the incident as he attempted to run away. From his own evidence, he subsequently helped to take PW1 to hospital and was escorted to the police station. I do find that on a balance of probability the prosecution fully proved their case, that indeed it was the appellant who pushed off PW1 from a moving matatu and as a result he sustained serious and grievous injuries.

42. The appellant raised the issue that there was no men’s rea proved. It is generally agreed that the essential ingredients of any crime are (1) voluntary act or omission (actus Reas), accompanied by (2) state of mind (mens rea). Sir William Holdsworth in the History of the English law ( Vol III, page 374 ) did state that;“The general rule of common law is that crime cannot be imputed to a man without mens rea. It is of course, quite another question how the exitance of that mens rea is to be established. The thought of men is not triable by direct evidence; but if the law grounds liability upon intent, it must endeavour to establish it by circumstantial evidence. Much of that circumstantial evidence will be directed to showing that a man of ordinary ability, situated as the accused was situated and having his means of knowledge, would not have acted as he have acted without having that mens rea which it is sought to impute to him. In other words, we must adopt an external standard in adjudicating upon the weight of evidence adduced to prove or disapprove mens rea. That does not mean that the law bases criminal liability upon an external standard. So to argue is to confuse the evidence for a proposition with the proposition proved by that evidence.

43. In 1950-66 TLR 735, Lord Denning L.J stated that“When people say that a man must be taken to intend the natural consequences of his acts, they fall into error; there is no “must” about it; it is only “may”. The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this; that as a man is usually able to foresee what are the natural consequence of his acts, so it is, as a rule reasonable to infer that he did foresee and intend them. But while that is an inference which may be drawn, it is not one which must be drawn. If on all that facts of the case it not the correct inference then it should not be drawn.”

44. I have considered the prosecution evidence and the evidence of the appellant, who in his defence stated that PW1 fell off the matatu as the driver started to drive off. I do find that the evidence of the appellant is not plausible. PW1 was unknown to him and they did not have any grudge or personal differences. There is no reason as to why PW1 would lay blame on him. Secondly the appellant also took off after the incident and was arrested by members of the public, why would he run off if he wasn’t guilty. On Men’s rea, it is my finding that the appellant could foresee the natural consequence of his action and cannot escape blame for the incident. He was thus rightly convicted.

Sentence. 45. The appellant submitted the trial magistrate erred in law and misdirected himself by in failing to take into account relevant consideration and thereby arrived at a wrong finding and issuing a sentence which was excessive in the circumstances.

46. Sentencing is a discretion of the court. But the court should look at the facts and the circumstances of the case in its entirely so as to arrive at appropriate sentence. The Court of Appeal Thomas Mwambu Wenyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the court held the following on sentencing:“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

47. The Court of Appeal in the case of Benard Kimani Gacheru Vs Republic (2002) eKLR stated;“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.

48. Under section 231 of the penal code, the offence of causing grievous harm attracts a sentence of life imprisonment. The trial court did consider the circumstances of the case, the appellant’s mitigation and the nature of injuries suffered by PW1 before proceeding to sentence the appellant to serve ten (10) year’s imprisonment. It has not been shown that the trial court overlooked some material factors or took into account some wrong material or cited upon a wrong principle. There is therefore no basis upon which to interfere with trial courts finding on the same.

Disposition 49. This appeal thus has no merit and is dismissed

50. It is so ordered.

51. Right of appeal 14 days.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 4THDAY OF DECEMBER 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 4th day of December 2023. In the presence of;Appellant present from Kitengela prisonsMr. Mangare for O.D.P.PSusan Court Assistant