Mireri v Republic (Criminal Appeal E019 of 2022)  KEHC 14671 (KLR) (3 November 2022) (Judgment)
Neutral citation:  KEHC 14671 (KLR)
Republic of Kenya
Criminal Appeal E019 of 2022
KW Kiarie, J
November 3, 2022
Alfred Odhiambo Mireri
(From the original conviction and sentence in Criminal case No. 77 of 2020 of the Senior Principal Magistrate’s Court at Oyugis by Hon. Celesa Okore– Principal Magistrate)
1.Alfred Odhiambo Mireri was convicted of the offence of assault causing actual bodily harm contrary to section 251 of the Penal code.
2.The particulars of the offence were that on 27th October, 2020 at Nyalenda Shopping Centre in Rachuonyo South Sub County of Homa Bay County, willfully and unlawfully assaulted Thomas Odhiambo Ojowi occasioning him actual bodily harm.
3.The appellant was sentenced to serve one year imprisonment. He was aggrieved and has appealed against both conviction and sentence. He raised seven grounds of appeal which can be distilled as follows:a.That the trial magistrate based her conviction on insufficient and contradictory evidence.b.That the trial magistrate meted out a harsh sentence in the circumstances.
4.The appeal was opposed by the state through Mr. Ochengo, learned counsel on grounds:a.That the offence was proved.b.That conviction and sentence were proper.
5.This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic  EA 32.
6.Thomas Odhiambo Ojowi (PW1) testified that the appellant is his cousin. On the material day at about 8 p.m. while he was coming from a neighbor’s shop, he met the appellant outside his (PW1’s) shop and the latter told him he was going to kill him. He proceeded to cut him with a machete. He said that the place was well lit with solar lights.
7.Washington Odhiambo Okumu (PW2) testified that the complainant had left him in his shop as he went to a neighbour’s shop. He was attracted by the complainant’s distress cry. The appellant said he must kill the complainant when he asked him why he was killing him. He was with the complainant’s brother and both rushed out. They saw the appellant armed with a machete and on seeing them, he disappeared into darkness. The complainant was bleeding from the hand.
8.After the close of the prosecution case the appellant opted to remain silent. This is his constitutional right.
9.Though the appellant has contended that there were contradictions in the prosecution case, what I note are minor discrepancies that cannot affect the outcome of the case.
10.It is trite law of practice that an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances as were spelled out in the case of Nilsson vs. Republic  E.A. 599,601 as follows:
11.Prior to the complainant being cut, the appellant had declared that he was going to kill him. This was without any provocation. I therefore find that the sentence meted out was fair in the circumstances of this case. I accordingly dismiss the appeal.
DELIVERED AND SIGNED AT HOMA BAY THIS 3RD DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE