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Bett v Republic (Criminal Appeal E020 of 2020) [2022] KEHC 3048 (KLR) (17 June 2022) (Judgment)
Neutral citation:
[2022] KEHC 3048 (KLR)
Republic of Kenya
Criminal Appeal E020 of 2020
AN Ongeri, J
June 17, 2022
Between
Fancy Chepkurui Bett
Appellant
and
Republic
Respondent
(Being an Appeal from the Conviction and Sentence by Hon. S. K. Ngetich (PM) in Kericho CMCC 3593 of 2016 delivered on 17/3/2020)
Judgment
1.The Appellant was convicted with two counts being grievous harm contrary to section 234 and assault causing actual bodily harm contrary to section 251 of the penal code and she was sentenced to 5 years and 3 years imprisonment respectively in count 1 and 2.
2.The particulars of count 1 were that on 7/9/2016, at Kapkelek, Chepkosilen Sub-Location in Kericho West District within Kericho County, the Appellant unlawfully did grievous harm to Albert Kipngeno Koskei.
3.On the 2nd count, the particulars are that on the same material particulars as in count 1 (above), the Appellant unlawfully assaulted Wesley Kipkemoi Koskei.
4.The Prosecution evidence in summary was that the Appellant caused grievous harm to Albert Kipngeno Koskei (the Complainant in Count 1) who was her husband with a stick when he asked her about a power saw she had given to a neighbor.
5.When Wesley Kipkemoi Koskei who is a brother to Albert Kipngeno Koskei came to his rescue, the Appellant also assaulted him with a stick causing him bodily harm.
6.The Clinical Officer who examined the two Complainants said Albert Kipngeno Koskei sustained grievous harm. He suffered a permanent disability as a result of fracture of the right forearm. Wesley sustained soft tissue injuries on both upper limbs and the doctor assessed the injuries as bodily harm.
7.The Appellant in her defence opted to remain silent. The Trial Court found her guilty as charged and sentenced her to five (5) and three (3) years imprisonment respectively. The sentence were to run concurrently.
8.The Appellant has now appealed to this Court against both conviction and sentence on the following grounds;(i)That she pleaded not guilty during trial and maintains her innocence, she was a first offender and she was the breadwinner in her family with three children depending on her.(ii)That the alleged offence was a family matter, it ought to have been investigated and referred for settlement out of court, furthermore, the complainant was paid Kshs. 26,000 to settle hospital bills.
9.Finally, the Appellant sought to have the court quash her conviction and set aside her sentence or grant her a non-custodial sentence.
10.This being a first appeal the first duty of this court is to re-evaluate the evidence before the Trial Court and to arrive at my own conclusion whether to support the findings of the Trial Court bearing in mind that the Trial Court had the opportunity to see the witnesses.
11.Since the Appellant filed only mitigation submissions, the Prosecution did not file submissions.
12.I have considered the mitigation submissions filed by the appellant.
13.I find that the appellant has been in custody since 17/3/2020 when she was convicted, a period of over two years and she has been adequately punished.
14.The Appellant said the Complainant was paid Kshs. 26,000/= with the intention of settling the case at home.
15.I accordingly reduce the sentence of Five (5) years imprisonment to the period already served.
16.I accordingly order that the Appellant be discharged forthwith unless lawfully held for any other reason.
DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE, 2022A. N. ONGERIJUDGE
