2.Patrick Karia Kanyua recalled that on 03rd October, 2020, he was outside his gate with Salesio Mwirigi when a gang of 8 led by Appellant arrived on motor cycles and descended on him with Appellant accusing him of selling land in the locality. That in the melee, Appellant who was armed with a machete hit him on the head and when he fell set upon him with kicks causing him injuries and damage to his phone. That Salesio’s attempt to rescue him was thwarted by the gang that threw stones at him injuring him. That complainant managed to escape in his motor vehicle KAY 324R but the gang threw stones at him and broke its windscreen. Salesio Mwiri confirmed that he was with Patrick on the material day and was also assaulted by being pelted with stones by the gang that injured Patrick and damaged his windscreen. Upon receiving the two complainants’ reports, CPL Muriithi referred them to hospital, took photographs of the damaged windscreen and subsequently arrested the Appellant. Geofrey Murithi examined the two complainant’s and prepared P3 forms which show that Patrick suffered a swollen head and right shoulder, cut wound on back and pain on neck which he assessed as harm. Selesio on the other hand suffered swollen ribs, right shoulder and left leg which was also assessed as harm.
3.Appellant in his unsworn defence stated that the disagreement between him and Patrick arose from a land ownership dispute over his land that Patrick wanted to evict him from.
4.At the conclusion of the trial, the Appellant was found guilty and convicted and sentenced to serve three (3) years’ and one-year imprisonment in counts 1 and 3 respectively and was fined KES. 20,000/- in default to serve one-year imprisonment in count 2.
Analysis and determination
6.I have considered the appeal in the light of the grounds of appeal and submission by the Appellant and by the state.
7.The trial court record clearly shows that on 25th October, 2021 when the matter was taken over by Hon. Munyi, Appellant indicated that he did not wish to recall any witness. Clearly section 200(3) of the CPC was complied with.
8.Evidence that Appellant and others assaulted the two complainant’s and damaged the windscreen of the first complainant’s vehicle was well corroborated and did not appear to have been influenced by any land dispute between 1st complainant and Appellant. From the foregoing, I find that the conviction on each count was well founded.
9.Concerning the sentence, Section 251 of the Act provides that:Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.
10.The words “shall be liable” in the context of Section 251 of the Act has the interpretation that unless a contrary intention appears, is the maximum penalty. This principle is contained in Section 66 (1) of the Interpretation and General Provisions Act (Cap 2 Laws of Kenya) which provides that:
11.The second observation is that the principle of law in Section 66 aforesaid is entrenched in Section 26 of the Penal Code which expressly authorizes a court to sentence the offender to a shorter term than the maximum provided by any written law and further authorizes the court to pass a sentence of a fine in addition to or in substitution for imprisonment except where the law provides for a minimum sentence of imprisonment.
12.In particular, Section 26 (2) and (3) of the Penal Code provides:
13.There is however a proviso to Section 26 (3) that a fine cannot be substituted for imprisonment where the law concerned provides for a minimum sentence of imprisonment. Section 28 (1) (a) of the Penal Code provides that where the Court imposes a fine under any law but the law does not expressly provide for the amount of the fine that can be imposed, then, the amount of fine that may be imposed is unlimited but shall not be excessive.
14.Whereas there is no dispute that complainants suffered harm, Appellants is a first offender. Generally, where a person is said to be a first time offender, the court usually imposes a lesser sentence as opposed to if the accused was a repeat offender. This view is subject to the discretion of the court as other factors such as aggravating circumstances are put into consideration in deciding the appropriate sentence in the circumstances of each case.
15.The trial court in its discretion imposed lawful 3 and 1 years respectively for assault in counts 1 and 3. The injuries were not aggravated and there being is no evidence of factors that militate against imposition of a fine, I find that this was a proper case that the trial court might have considered an option of a fine.
16.Concerning count 2, Appellant was fined KES. 20,000/- its default sentence in terms of Section 28 (2) of the Act is 6 months and not one year as imposed by the trial court.
17.Consequently, I confirm the conviction in each count and make the following orders:1.Appellant’s appeal on sentence is allowed2.The sentence of 3 years’ imprisonment in count 1 is substituted with a fine of KES. 15,000/- in default 6 months’ imprisonment3.The 12 months’ default sentence in count 2 is substituted with a fine of KES. 20,000/- in default 6 months’ imprisonment4.The sentence of 1 years’ imprisonment in count 3 is substituted with a fine of KES. 15,000/- in default 6 months’ imprisonment