IN THE HIGH COURT OF KENYA  

AT ELDORET

          This appeal arises from the decision of the Honourable Principle Magistrate, Kapsabet who on the 25^th November, 2009 sentenced the appellant to a fine of Kshs 20,000/= or in default to serve a term of two (2) years imprisonment.

          This sentence arose from the appellants conviction of the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the Charge are that the appellant;

“On the 13^th day of October 2007 at Ngoroin Village, Surungai Location in Nandi North District of the Rift Valley Province assaulted Stella Kirwa thereby occasioning her actual bodily harm.”

          In her Petition of Appeal which was wrongly headed and referred to as the Memorandum of Appeal the appellant submitted through her counsel, Mrs. Toigat that the trial magistrate erred in convicting and sentencing the appellant and relied on the seven (7) grounds set out in the Memorandum (six) of Appeal which are as set out hereunder:-

Mrs. Toigat urged this court to quash the conviction and set aside the sentence.

          The State Counsel, Mr. Kabaka opposed the appeal and submitted that the appeal be dismissed for lack of merit and that the conviction and sentence be upheld.

          On ground (i) of the appeal I find that even if the evidence given was flimsy as submitted there was still corroboration of the same. PW 2 & PW 3 gave evidence on the attack and the identity of the appellant which evidence was corroborated by the complainant. The attack was in broad daylight PW 2 & PW 3 saw the assailant and the complainant knew the assailant as they were neighbours and identification was by recognition. The complainant gave evidence of her injuries which evidence was confirmed and corroborated by  PW 5, the Doctor. 

I find no merit on this ground of appeal and concur with the state counsel that the prosecution proved the issues relating to assault, identification and injuries beyond reasonable doubt.

          At the trial it is submitted by the appellants counsel that the Investigating officer was not called to testify and this forms the basis of ground of appeal number (ii).

          Mrs. Toigat, counsel for the appellant submitted that from the time that the complainant made the report to the time of arrest of the complainant, there was a time lapse of two weeks. She further submitted that no evidence was adduced at the trial to explain the time lapse and the chain of events leading to the arrest of the appellant. Could this time lapse have been prejudicial to the appellants conviction is the issue.

          From the Record of Appeal at page 4 PC No. 77283 Zacharia Kandie was called to testify. When asked to cross-examine PW4, the appellant did not ask this pertinent question on time lapse she chose instead to ask no questions.

“……..it is for the prosecution to decide which witnesses are relevant to their case. The investigating officer played a very insignificant role that his evidence may not have been necessary…”

          On ground three (iii) of the appeal I must agree that the judgment of the trial magistrate was brief. However no judicial officer has the same style of writing judgments. It is also not a requirement that a court should set out the points for determination at length and give lengthy reasons for arriving at a particular decision.

          On ground No. (vi) the appellant chose not to ask any questions in cross-examination that may have been expounded the evidence and raised doubt in the appellant’s favour. I find no merit on this ground.

          I shall proceed to ground (vi) of the appeal and say that it was a significant fact that the appellant did not call or failed to call any witnesses at the trial.

          The seventh and last ground of appeal that the sentence was excessive considering the appellant was a first offender. I am guided by the principles set out in the case of WANJEMA –VS- REPUBLIC (1970) E.A at page 494 it was stated and I quote:-

          I find that the trial magistrate when considering the evidence before the court did not overlook some material fact nor did he take into take into account any immaterial or extraneous factors, by considering that which he ought not to have considered. Nor do I find any application of a wrong principle in the record. 

          I find no reason to fault the manner in which the trial magistrate conducted the trial nor in the manner he exercised his discretion in convicting and sentencing the appellant. I find that the sentence imposed was lawful and not manifestly excessive. Accordingly the appeal is hereby dismissed and the conviction and sentence are both upheld.