The Appellant Geoffrey Job Moreka was charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code in Ogembo Magistrate Court Criminal C. No. E1309 of 2021.
The particulars were that on 15th day of July 2021 at around 18:00 hours at Nyabera Sub Location Etago Sub County within Kisii County the Appellant willfully and unlawfully assaulted Agnes Moraa Moreka thereby occasioning her actual bodily harm.
Upon consideration of the evidence of 4 prosecution witnesses and the Appellants sworn statement the trial magistrate found the Appellant guilty and convicted him and sentenced him to serve 2 years imprisonment.
The Appellant was aggrieved by the conviction and sentence and he preferred the Appeal herein vide Petition filed on 21.2.2024 on the following grounds: -
- That the trial magistrate erred in both law and fact by convicting the Appellant without withstanding that the offence of assault causing actual bodily harm was not proved beyond reasonable doubt.
- That the trial magistrate erred both in law and facts by convicting the Appellant to serve 2 years imprisonment without taking into consideration the Appellants mitigation.
- That the Appellant was not accorded a fair trial and thus infringing his right under Article 50(2) of the Constitution.
- That the Appellant had a family as a result he was bread winner now that he is confined in prison the family is suffering more especially the children.
- That the sentence of 2 years imposed is harsh and excessive given the circumstances of the offence committed.
The Appellant prayed that his appeal be allowed and sentence reduced or changed to any other order.
Directions were taken for hearing of the appeal by way of written submission.
The Appellants submissions dated 7.1.2025 are to the effect that the people who are alleged to have responded to rescue the complainant including Mary were not called as witnesses to testify or on what they saw. He said that it was wrong for the court to use evidence of the complainant and her grandchild to support a conviction.
The Appellant also argued that there was no proper reason why he could have assaulted the complainant as from her evidence they had not quarreled.
The Appellant submitted that from the evidence on record it is not clear who assaulted the complainant and that the testimony of the complainant and PW2 were not corroborative of each other and cannot be relied upon as both cannot be true and that the same was fabricated.
The Appellant also faulted prosecution evidence of PW2 and PW3 as contradictory as to when the complainant went to hospital.
The Appellant also faulted the Investigating Officer for failing to avail the salt he saw at the scene and therefore investigations were not properly done since the statement of Mary was also not taken and she was said to have responded to the scene.
The Appellant further faulted the trial magistrate for linking him with the offence when there was no evidence connecting him to the offence.
The Respondent counsel’s submissions dated 20.11.2024 were to the effect that the assault on the complainant was witnessed by PW2 who was at home with PW1 and that upon examination it was established the complainant suffered injuries to her eyes as per treatment notes and P3 Form EX P1 and 2 produced by PW3.
On the issue of sentence it was submitted that Section 251 of the Penal Code provides that any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for 5 years and that the 2 years sentence was very lenient considering provision of Section 251 of the Penal Code.
The Respondent counsel urged the court to dismiss appeal.
ANALYSISI AND DETERMINATION
Mandate of the Court as a first Appellate court, is to re-evaluate the evidence and judgment of the trial court and make an independent decision whether to allow the appeal.
The court must examine issues of law and all the evidence and make conclusions about it even though it did not have the opportunity to hear or see the witnesses testify.
In Mark Oururi Mose vs. Republic (2013) eKLR this mandated was restated thus:-
“……the court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analysed it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
The Appellant challenges the conviction and sentence meted against him. I have considered the grounds of appeal the evidence in the trial court, the judgment of the trial magistrate as well as the rival submissions and the issues framed for determination are: -
- Whether the complainant was assaulted;
- Whether the complainant suffered actual bodily harm;
- Whether it is the Appellant is the one who assaulted the complainant
The complainant is the step mother of the Appellant and they therefore knew each other very well and PW1 and PW2 confirmed the Appellant poured salt into PW1’s eyes for no apparent reason and PW3 Clinical Officer at Etago Sub – County Hospital examined the complainant and observed swollen teary eyes. She filled the P3 form. PW4 also said PW1’s eyes were inflamed. The complainant said the Appellant abuses her all the time. Although the appellant said he was framed he did not challenge the evidence of PW1 and PW2 that he committed the offence.
The contradiction claimed by the Appellant as to where the complainant was treated, whether Nyamarambe or Etago is clear from EXP1 and P 2 that Etago Sub County Hospital has its address at Nyamarambe and there is therefore no material contradiction that goes to the substance of the evidence adduced against the Appellant that would cause prejudice.
On the issue of the witnesses called to testify. The Appellant said that the complainant did not want her mother to be given land but he did not raise the issue with the complainant and he did not give particulars of the person who was dividing land or even the particular of the land.
This court therefore finds that the prosecution evidence that the complainant was assaulted was proved beyond all reasonable doubt. I do also find that the sentence passed against the appellant was within the law save that having been found to be a first offender and being that the matter involved family members the trial magistrate needed to have called for social inquiry to establish if the root cause of the offence could be resolved once and for all instead of giving preference to a custodial sentence where the sentence is less than 3 years.
The Appellant was arraigned in court on 21.7.2021 and it was not until on 16.6.2023 that he was released on payment of cash bail of 5,000/= which was subsequently refunded when he was sentenced to serve 2 years jail term.
The Appellant having been in custody from 21.7.2021 to 16.6.2023 the trial magistrate ought to have taken into account the period spend in remand in the Appellants sentence.
Pursuant to Section 333 (2) Criminal Procedure Code. This court therefore finds that the period served by the Appellant both in prison and remand custody goes beyond the intended punishment. The Appellant should therefore be set at liberty forthwith.
DELIVERED, DATED and SIGNED at MIGORI this 10th day of January, 2025.