Isaac Mauti Atemba v Republic

High Court, at Kisii

December 11, 1995

Mbito, J

Criminal Appeal No 356 of 1995

Evidence - Standard of proof - evidence in criminal cases - assault causing actual bodily harm - where sequence of events create doubt in mind of court - whether the case can be said to have been proved to required standard.

SUMMARY OF FACTS

The appellant in this case was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. He was found guilty and sentenced to 1 year imprisonment hence his appeal.

Prosecution case was to the effect that the complainant was going home when he was attacked by appellant who is his brother. He is alleged to have cut him while the two other brothers who accompanied the complainant ran away.

The incident is said to have taken place on 23^rd March, 1994. When witness was called he said that the date was the 26^th March, 1994. The complainant is said to have said he was attacked on 23^rd March, 1994 and not 26^th March, 1994 as stated by his only witness and as per charge sheet and medical report.

The defendant denied having any dispute on 23^rd March, 1994 with the complainant nor was he aware of any dispute between him and complainant.

HELD

1. The discrepancy in the evidence of events created some doubt in the mind of the court.
2. The evidence fell short of satisfying that the appellant could have suddenly attacked his brother without provocation at all.
3. The gaps left in the sequence of events would suggest a frame up which could easily arise as the complainant believed that he had a dispute with the appellant

Appeal Allowed.

Isaya Opiyo Odida v Republic

High Court, at Kisii

February 15, 1995

Mbaluto, J

Criminal No 248 of 1994

Criminal Practice and Procedure - judgment - contents and mode of delivery - where one is convicted without any written judgment r pronouncing the same accordance with the law - whether this is procedure as per the law.

Summary of the Facts

The appellant was convicted in the court below of theft c/s. 275 of the Penal Code and was sentenced to 2 years of imprisonment. His appeal to this court is against conviction and sentence.. He contended that the magistrate erred in convicting him and sentencing him without writing any judgment or pronouncing the same according to the law.

The learned state counsel agreed that there were irregularities during the trial in the court below.

HELD

1. The record showed to the court by Mr. Ochillo is so different from what appears in the record submitted by the lower court, that their cannot be doubt that the record containing judgement and sentence was doctored.
2. The learned trial magistrate doctored the record as the handwriting is clearly his.
3. The learned trial magistrate’s conduct was a serious breach of the court’s procedures and a clear abuse of the powers conferred upon him.

Appeal Allowed