1. The four (4) Appellants successfully appealed against a conviction and sentence for robbery with violence contrary to Section 296 (2) of the Penal Code and the conviction was substituted with a conviction for assault cause actual bodily harm.
2. During mitigation, Mr. Maina for the Appellants submitted that they were all remorseful and pleaded for leniency. He urged the court to consider the over 11 months period that the Appellants had spent in custody.
3. Ms. Chala for the Respondent aligned herself with the pre-sentence report which had been filed in respect of all the Appellants save for the 2nd Appellant Patrick Mbakaya who absconded from Court.
4. The pre-sentence reports indicates that the incident that led to the assault arose from an intra-family conflict. This is borne by the record as it emerged during the hearing that the Appellants suspected the Complainant of having an incestuous relationship with their minor niece.
5. Regardless of the cause of the conflict, it was wrong for the Appellants to take the law into their hands. There were legal avenues through which they could have addressed their concerns and for being reckless and feeling entitled to mete out corporal punishment to their relative on account of suspicion, they deserve a deterrent punishment that would not only be retributive but would also send a message to the rest of the population that committing an offence in the guise of sorting out family disputes will attract criminal sanctions.
6. Section 251 of the Penal Code provides:-
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
7. I have carefully considered the mitigation and the pre-sentence report. I have taken note of the fact that the Complainant was subjected to degrading treatment during which he was assaulted and sustained multiple soft tissue injuries. I am of the view that the Complainant should be compensated for the injuries and emotional stress he was put through.
8. Section 31 of the Penal Code expressly provides:-
“Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other punishment.”
9. Section 175 of the Criminal Procedure Act empowers the court to order the convicted person to pay damages to his victim. Section 175 (2) (a) and (b) provides that:-
“2. A court which—
(a)convicts a person of an offence or, on appeal, revision or otherwise, confirms the conviction; and
(b)finds, on the facts proven in the case, that the convicted person has, by virtue of the act constituting the offence, a civil liability to the complainant or another person (in either case referred to in this section as the "injured party"),
may order the convicted person to pay to the injured party such sum as it considers could justly be recovered as damages in civil proceedings brought by the injured party against the convicted person in respect of the civil liability concerned.”
10. Flowing from the above, the court has jurisdiction to order compensation of the Complainant by the Appellants as there is demonstrable injury suffered by the Complainant. This is in alignment with the objectives of the Victim’s Protection Act. See also Ian Ochieng Owaga v. Republic [2022] eKLR and Emmanuel Gitonga Wagula v. Republic [2024] KEHC 13663 (KLR).
11. In the end, I make the following orders:-
(a) The 1st, 3rd and 4th Appellants shall serve eighteen (18) months’ probation.
(b) The 1st, 3rd and 4th Appellants shall each pay compensation to the Complainant in the sum of Ksh. 40,000/= (Shillings Fourty Thousand) within six (6) months under the supervision of the Kakamega Central Probation Office.
(c) The 2nd Appellant is sentenced to 5 years imprisonment.
(d) The warrants of arrest against the 2nd Appellant shall remain in force until his arrest and committal to jail.
(e) Mention to confirm the arrest of the 2nd Appellant on 29/9/2026.
2. During mitigation, Mr. Maina for the Appellants submitted that they were all remorseful and pleaded for leniency. He urged the court to consider the over 11 months period that the Appellants had spent in custody.
3. Ms. Chala for the Respondent aligned herself with the pre-sentence report which had been filed in respect of all the Appellants save for the 2nd Appellant Patrick Mbakaya who absconded from Court.
4. The pre-sentence reports indicates that the incident that led to the assault arose from an intra-family conflict. This is borne by the record as it emerged during the hearing that the Appellants suspected the Complainant of having an incestuous relationship with their minor niece.
5. Regardless of the cause of the conflict, it was wrong for the Appellants to take the law into their hands. There were legal avenues through which they could have addressed their concerns and for being reckless and feeling entitled to mete out corporal punishment to their relative on account of suspicion, they deserve a deterrent punishment that would not only be retributive but would also send a message to the rest of the population that committing an offence in the guise of sorting out family disputes will attract criminal sanctions.
6. Section 251 of the Penal Code provides:-
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
7. I have carefully considered the mitigation and the pre-sentence report. I have taken note of the fact that the Complainant was subjected to degrading treatment during which he was assaulted and sustained multiple soft tissue injuries. I am of the view that the Complainant should be compensated for the injuries and emotional stress he was put through.
8. Section 31 of the Penal Code expressly provides:-
“Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other punishment.”
9. Section 175 of the Criminal Procedure Act empowers the court to order the convicted person to pay damages to his victim. Section 175 (2) (a) and (b) provides that:-
“2. A court which—
(a)convicts a person of an offence or, on appeal, revision or otherwise, confirms the conviction; and
(b)finds, on the facts proven in the case, that the convicted person has, by virtue of the act constituting the offence, a civil liability to the complainant or another person (in either case referred to in this section as the "injured party"),
may order the convicted person to pay to the injured party such sum as it considers could justly be recovered as damages in civil proceedings brought by the injured party against the convicted person in respect of the civil liability concerned.”
10. Flowing from the above, the court has jurisdiction to order compensation of the Complainant by the Appellants as there is demonstrable injury suffered by the Complainant. This is in alignment with the objectives of the Victim’s Protection Act. See also Ian Ochieng Owaga v. Republic [2022] eKLR and Emmanuel Gitonga Wagula v. Republic [2024] KEHC 13663 (KLR).
11. In the end, I make the following orders:-
(a) The 1st, 3rd and 4th Appellants shall serve eighteen (18) months’ probation.
(b) The 1st, 3rd and 4th Appellants shall each pay compensation to the Complainant in the sum of Ksh. 40,000/= (Shillings Fourty Thousand) within six (6) months under the supervision of the Kakamega Central Probation Office.
(c) The 2nd Appellant is sentenced to 5 years imprisonment.
(d) The warrants of arrest against the 2nd Appellant shall remain in force until his arrest and committal to jail.
(e) Mention to confirm the arrest of the 2nd Appellant on 29/9/2026.