(Being an appeal from the original conviction and sentence of Hon. A. Ithuku, in Kerugoya Magistrates Court Criminal Case No. E057 of 2021 delivered on 19/10/2022)
Background
1. The appellant herein James Githaga Nguru was convicted of committing the offence of causing grievous harm contrary to section 234 of the Penal Code (Cap. 63) Laws of Kenya that on 2/1/2021 at Kianjogu within Kirinyaga County willfully and unlawfully did grievous harm to Nancy Wambui Murage. He was sentenced to serve 4 years imprisonment. He was aggrieved by that decision and now appeals to this court against both sentence and conviction.
Grounds of appeal
2. In his petition of appeal dated 26/10/2022, he has set out the following grounds of appeal. The learned trial magistrate erred in law and in fact in that:
a. the offence of grievous harm was not proved beyond a reasonable doubt and the burden of proof was shifted to the appellant.
b. he failed to put on record and allow the appellant to adduce video evidence of what had happened to the complainant on the day of the alleged offence.
c. he misdirected himself in finding that the complainant was attacked using a panga when the same was not produced in court as exhibit.
d. he denied the appellant to submit on a case to answer and at the close of the defence case.
e. failed to address himself to the mandatory requirements of section 169 of the Criminal Procedure Code (Cap. 75) Laws of Kenya in that the judgment did not contain point or points for determination, the decision thereon and the reason for such a decision.
f. failed to give the appellant an opportunity to mitigate before sentencing.
g. the findings and decision were against the weight of the evidence.
3. The appellant therefore prays that the appeal be allowed, the conviction quashed and sentence set aside.
Duty of the court on a first appeal
4. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
5. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
Submissions
6. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
7. Learned counsel for the appellant submitted that there was no independent evidence apart from that of the complainant and her children that the appellant attacked and cut her. Further that, in fact, PW 2 and PW 3 did not witness the attack but found their mother bleeding.
8. Learned counsel submits that there was no reason given for the alleged attack apart from the allegation by the complainant that the appellant had been insulting her for long, which allegation was not corroborated by either PW 2 or PW 3, her children.
9. Learned counsel further submits that there was contradiction in the evidence of PW 1 that she was attacked at 5.00 p.m. while PW 3 testified that she left home at 5.30 p.m. while the complainant, her mother was well. In that case, learned counsel submits that careful scrutiny of the evidence of PW 3 creates a doubt as to the cause of the injuries on PW 1.
10. Learned counsel also submits that the conduct of the complainant of not raising an alarm during the alleged attack and the fact that nobody else in the compound witnessed the incident makes it difficult to believe PW 1’s evidence that the appellant attacked her.
11. Learned counsel submits that as for PW 2, he said he saw the appellant getting into his home but nothing in the conduct of the appellant at the time shows that he had indeed attacked the complainant.
12. Learned counsel for the respondent submits that the prosecution proved its case against the appellant beyond a reasonable doubt and that the alleged contradictions in the prosecution’s evidence as submitted by learned counsel for the appellant are not specified.
Case before the trial court
13. The prosecution called 5 witnesses to support its case. PW 1 Nancy Wangui Murage was the complainant. She testified that the appellant is her brother-in-law. The appellant went to her homestead on 2/1/2021 and found her picking firewood. He called her a dog and slapped her. She fell down. He then cut her with a panga on the head and went away. She remained there bleeding. Her daughter, Joyce Mbithe, PW 3, went there and took her to Kerugoya police station from where she was taken to Kerugoya Referral hospital where she was treated by stitching and discharged. She produced treatment notes and P3 form as exhibits. She said that the appellant had been abusing her for a long time and they have no other dispute. The panga was not recovered and she still had headaches.
14. PW 2, Samwel Wakanyi Murage testified that he is a son of the complainant. He said that he was at home. He saw the appellant entering his house. He then went to his mother’s, the complainant’s house and found her bleeding. She had a cut on the head. He took her to Kerugoya police station then to the hospital.
15. PW 3, Joyce Mbithe is a daughter of the complainant. She said that she was with her mother on the material evening at around 5.30 p.m. PW 1 got out to go to the shop and PW 3 left home. When she came back, she found the mother bleeding profusely from a cut wound on the head. The mother told her that the appellant had cut her. She called a boda boda and PW 2 took her to the police station and to hospital
16. PW 4, Lincoln Mwangi, a clinician, attended to the complainant at Kerugoya hospital on the same day, examined her and completed his P3 form. He said that when she went to the hospital her body had blood stains. She had a deep cut wound on the frontal part of the head probably caused by a sharp object consistent with a panga cut. The wound had caused a lot of bleeding. She complained of headache.
17. In cross-examination, PW 4 said that the complainant was not drunk and the cut was penetrating the skull.
18. PW 5, PC Peter Kibue took over investigations of the matter after the initial investigating officer PC Muia whose whereabouts were not stated.
19. The appellant DW 1, made an unsworn statement in defence. He denied that he had committed the offence and said that he was not even at home at the time. He said that they had lived in peace with the complainant who was like his mother.
20. At the end of the trial, the appellant was found guilty of the offence and he was convicted and sentenced to serve four years imprisonment. He was however released on bond pending appeal.
Analysis
21. I have carefully examined and re-evaluated the evidence tendered before the trial court and the judgment of the trial court. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof and the submissions by the respondent. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
22. Section 234 of the Penal Code under which the appellant was charged with the offence of causing grievous harm provides for as follows:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”
23. Section 4 of the Penal Code defines grievous harm as follows: -
“‘grievous harm’ means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or any permanent or serious injury to any external or internal organ, membrane or sense.”
24. In the case of Wahome v Republic [2025] KECA 434 (KLR) the Court of Appeal held that:
“from the above exposition, the offence of grievous harm is committed when the accused person subjects the complainant to an assault that results inter alia to maim or permanent injury of the complainant.”
25. Further, “harm,” “dangerous harm,” and “maim” under the same section are defined as follows:
"harm" means any bodily hurt, disease or disorder whether permanent or temporary.”
"dangerous harm" means harm endangering life;
"maim" means the destruction or permanent disabling of any external or internal organ, member or sense;
26. The prosecution therefore needs to prove the following elements of the offence beyond a reasonable doubt:
a. The victim sustained grievous harm.
b. The harm was caused unlawfully.
c. The accused caused or participated in causing the grievous harm.
(See the case of Pius Mutua Mbuvi v Republic [2021] eKLR).
27. On the first ingredient, “grievous harm” is defined under Section 2 of the Penal Code to mean:
“Any harm which amounts to maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense.”
28. In this case, the evidence by PW 1, PW 2 and PW 3 shows that the complainant sustained a deep cut wound on her head. That the cut was deep is evident from the fact that it was bleeding profusely. The clinical officer noted in his treatment notes that the wound was still actively bleeding at the time the complainant arrived at the hospital. This was after she had made a report at the police station. The clinical officer also found the cut wound to be 2 cm deep and 10 cm long. He also said that the wound was penetrating the skull. This confirms that it was indeed a deep cut wound.
29. Considering the extend of the wound, the fact that it was on the head and the front part, I find that this undoubtedly was harm that seriously injured the complainant’s health. The wound had to be sutured for it to stop bleeding. I am satisfied that the element of grievous harm has been proved beyond a reasonable doubt.
30. The appellant denied assaulting the complainant and causing her grievous harm. However, the complainant’s evidence is that the appellant assaulted her in broad daylight at around 5.00 p.m. The appellant was well known to her as her brother-in-law. It is true as submitted by learned counsel that there is contradiction on the issue of the time of the alleged attack with PW 1 saying that it was 5.00 p.m. while PW 3 said that she had left her mother at home at around 5.30 p.m. while she was well. The time difference between what PW 1 and PW 3 stated is minimal and therefore not a material contradiction. It is incapable of leading to a finding that there was doubt created in the case for the prosecution. It is apparent that the incident happened in the evening.
31. Secondly, the complainant’s evidence is consistent throughout that the appellant was the one who assaulted her. Her bleeding from the forehead corroborated her evidence that she had been assaulted. She immediately told her children that she had been assaulted by the appellant. PW 2 said in evidence that shortly before he into his mother’s house and saw her bleeding from the wound, he had seen the appellant entering his house in the same compound. The appellant’s evidence that in fact he was not around at the time is therefore discounted by the evidence of the complainant as supported by that of PW 2.
32. Section 143 of the Evidence Act (Cap. 80) Laws of Kenya, provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. What is required is the cogency of the evidence tendered by a particular witness. The fact that there was no other witness to support the complainant’s evidence that the appellant attacked and injured her cannot mean that she cannot be believed.
33. I am therefore satisfied that the complainant is a witness of truth and what she said is indeed what happened when the appellant went to her home and cut her with a panga. She positively identified the appellant, by way of recognition, as her assailant.
34. On the issue of the assault being unlawful, clearly, there was no justification for this brutish conduct upon the complainant, a lady, who had done nothing against the appellant. I therefore find that the assault was unlawful.
35. The appellant’s denial that he committed the offence is discounted by the complainant’s strong evidence which I have found consistent and truthful. I therefore reject his defence as unworthy of belief.
36. I am satisfied that the prosecution adduced evidence which established that indeed the appellant attacked the complainant and cut her on the forehead without any justification as a result of which she sustained a deep cut wound penetrating to the skull. The assault took place in broad day light. The likelihood that the appellant could have been confused with another person is therefore none existent.
37. This court therefore finds that the prosecution proved to the required standard of beyond any reasonable doubt that the appellant assaulted the complainant thereby causing her to sustain grievous harm. The learned trial magistrate was right in his finding so.
38. Consequently, I am satisfied that the appellant was correctly convicted. I affirm the trial court’s conviction on the offence of causing grievous harm contrary to section 234 PC. The appeal on conviction is therefore dismissed as lacking in merit.
39. The final ground raised by the appellant was on sentence with the appellant submitting that the learned trial magistrate failed to consider the appellant’s mitigation. That ground of appeal and submission in support thereof is not correct. To the contrary, the learned trial magistrate considered the mitigation, if what he said can be considered as such. The appellant said very briefly, after the judgment was read convicting him that he still denied the charge. The learned magistrate then went on to observe that he had considered the mitigation and the appellant did not show any remorse. He did not seem to appreciate that he had committed an offence.
40. Section 216 CPC provides that:
“The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.
41. Although this section is couched in permissive and not mandatory terms, receiving evidence before sentence is a useful guide for the court in assessing an appropriate sentence for an accused person.
42. The Sentencing Policy Guidelines, 2023 provide in paragraph 4.1.3.5 (see paragraph 22.12 of the prior Sentencing Policy Guidelines) that:
“The court should, as a matter of course, request a pre-sentence report in appropriate cases. The court should be guided by the pre-sentence reports presented and should be satisfied that the enquiry has been adequately conducted for the purposes of sentencing. While appreciating that pre-sentence reports are not binding, the court should give reasons for departing from the recommendations therein.”
43. It is therefore desirable to adhere to this policy guideline as read together with section 216 CPC in spite of it being permissive only.
44. I have looked at the trial court record and I note that the trial court did not request for a pre-sentence report before passing sentence. The evidence on record showed that there were no deep-seated differences between the complainant and the appellant even as the complainant said that the appellant was always insulting her. The complainant and the appellant are related as sister-in-law-brother-in law and stay in the same home. A pre-sentence report is important and, in such cases, may help to establish the cause of the conflict between the parties and even assist in resolution thereof through reconciliation, for instance where probation for the offender is recommended. Before passing the custodial sentence herein, it was imperative that the court requests for a pre-sentence report.
45. I therefore find that the learned trial magistrate ought to have requested for a pre-sentence report to inform himself of the appropriate sentence.
46. I note that the appellant had completed about six months of his four-year sentence in prison custody before he was released on bond after the court found that the bail report was favourable. Therefore, before concluding on the issue of sentence, I will request for a sentence review report from the Probation and Aftercare Department in order for the court to inform itself whether or not the appellant is suitable for sentence review.
47. Mention on 10/7/2025 for sentencing of the appellant.
48. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 30th day of June 2025 in the presence of:
The appellant in person in physical courtroom.
Munene holding brief for Ms. Kiragu for the appellant.
Charles Mwangi for the respondent.
Brian: Court assistant.
Background
1. The appellant herein James Githaga Nguru was convicted of committing the offence of causing grievous harm contrary to section 234 of the Penal Code (Cap. 63) Laws of Kenya that on 2/1/2021 at Kianjogu within Kirinyaga County willfully and unlawfully did grievous harm to Nancy Wambui Murage. He was sentenced to serve 4 years imprisonment. He was aggrieved by that decision and now appeals to this court against both sentence and conviction.
Grounds of appeal
2. In his petition of appeal dated 26/10/2022, he has set out the following grounds of appeal. The learned trial magistrate erred in law and in fact in that:
a. the offence of grievous harm was not proved beyond a reasonable doubt and the burden of proof was shifted to the appellant.
b. he failed to put on record and allow the appellant to adduce video evidence of what had happened to the complainant on the day of the alleged offence.
c. he misdirected himself in finding that the complainant was attacked using a panga when the same was not produced in court as exhibit.
d. he denied the appellant to submit on a case to answer and at the close of the defence case.
e. failed to address himself to the mandatory requirements of section 169 of the Criminal Procedure Code (Cap. 75) Laws of Kenya in that the judgment did not contain point or points for determination, the decision thereon and the reason for such a decision.
f. failed to give the appellant an opportunity to mitigate before sentencing.
g. the findings and decision were against the weight of the evidence.
3. The appellant therefore prays that the appeal be allowed, the conviction quashed and sentence set aside.
Duty of the court on a first appeal
4. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
5. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
Submissions
6. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
7. Learned counsel for the appellant submitted that there was no independent evidence apart from that of the complainant and her children that the appellant attacked and cut her. Further that, in fact, PW 2 and PW 3 did not witness the attack but found their mother bleeding.
8. Learned counsel submits that there was no reason given for the alleged attack apart from the allegation by the complainant that the appellant had been insulting her for long, which allegation was not corroborated by either PW 2 or PW 3, her children.
9. Learned counsel further submits that there was contradiction in the evidence of PW 1 that she was attacked at 5.00 p.m. while PW 3 testified that she left home at 5.30 p.m. while the complainant, her mother was well. In that case, learned counsel submits that careful scrutiny of the evidence of PW 3 creates a doubt as to the cause of the injuries on PW 1.
10. Learned counsel also submits that the conduct of the complainant of not raising an alarm during the alleged attack and the fact that nobody else in the compound witnessed the incident makes it difficult to believe PW 1’s evidence that the appellant attacked her.
11. Learned counsel submits that as for PW 2, he said he saw the appellant getting into his home but nothing in the conduct of the appellant at the time shows that he had indeed attacked the complainant.
12. Learned counsel for the respondent submits that the prosecution proved its case against the appellant beyond a reasonable doubt and that the alleged contradictions in the prosecution’s evidence as submitted by learned counsel for the appellant are not specified.
Case before the trial court
13. The prosecution called 5 witnesses to support its case. PW 1 Nancy Wangui Murage was the complainant. She testified that the appellant is her brother-in-law. The appellant went to her homestead on 2/1/2021 and found her picking firewood. He called her a dog and slapped her. She fell down. He then cut her with a panga on the head and went away. She remained there bleeding. Her daughter, Joyce Mbithe, PW 3, went there and took her to Kerugoya police station from where she was taken to Kerugoya Referral hospital where she was treated by stitching and discharged. She produced treatment notes and P3 form as exhibits. She said that the appellant had been abusing her for a long time and they have no other dispute. The panga was not recovered and she still had headaches.
14. PW 2, Samwel Wakanyi Murage testified that he is a son of the complainant. He said that he was at home. He saw the appellant entering his house. He then went to his mother’s, the complainant’s house and found her bleeding. She had a cut on the head. He took her to Kerugoya police station then to the hospital.
15. PW 3, Joyce Mbithe is a daughter of the complainant. She said that she was with her mother on the material evening at around 5.30 p.m. PW 1 got out to go to the shop and PW 3 left home. When she came back, she found the mother bleeding profusely from a cut wound on the head. The mother told her that the appellant had cut her. She called a boda boda and PW 2 took her to the police station and to hospital
16. PW 4, Lincoln Mwangi, a clinician, attended to the complainant at Kerugoya hospital on the same day, examined her and completed his P3 form. He said that when she went to the hospital her body had blood stains. She had a deep cut wound on the frontal part of the head probably caused by a sharp object consistent with a panga cut. The wound had caused a lot of bleeding. She complained of headache.
17. In cross-examination, PW 4 said that the complainant was not drunk and the cut was penetrating the skull.
18. PW 5, PC Peter Kibue took over investigations of the matter after the initial investigating officer PC Muia whose whereabouts were not stated.
19. The appellant DW 1, made an unsworn statement in defence. He denied that he had committed the offence and said that he was not even at home at the time. He said that they had lived in peace with the complainant who was like his mother.
20. At the end of the trial, the appellant was found guilty of the offence and he was convicted and sentenced to serve four years imprisonment. He was however released on bond pending appeal.
Analysis
21. I have carefully examined and re-evaluated the evidence tendered before the trial court and the judgment of the trial court. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof and the submissions by the respondent. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
22. Section 234 of the Penal Code under which the appellant was charged with the offence of causing grievous harm provides for as follows:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”
23. Section 4 of the Penal Code defines grievous harm as follows: -
“‘grievous harm’ means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or any permanent or serious injury to any external or internal organ, membrane or sense.”
24. In the case of Wahome v Republic [2025] KECA 434 (KLR) the Court of Appeal held that:
“from the above exposition, the offence of grievous harm is committed when the accused person subjects the complainant to an assault that results inter alia to maim or permanent injury of the complainant.”
25. Further, “harm,” “dangerous harm,” and “maim” under the same section are defined as follows:
"harm" means any bodily hurt, disease or disorder whether permanent or temporary.”
"dangerous harm" means harm endangering life;
"maim" means the destruction or permanent disabling of any external or internal organ, member or sense;
26. The prosecution therefore needs to prove the following elements of the offence beyond a reasonable doubt:
a. The victim sustained grievous harm.
b. The harm was caused unlawfully.
c. The accused caused or participated in causing the grievous harm.
(See the case of Pius Mutua Mbuvi v Republic [2021] eKLR).
27. On the first ingredient, “grievous harm” is defined under Section 2 of the Penal Code to mean:
“Any harm which amounts to maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense.”
28. In this case, the evidence by PW 1, PW 2 and PW 3 shows that the complainant sustained a deep cut wound on her head. That the cut was deep is evident from the fact that it was bleeding profusely. The clinical officer noted in his treatment notes that the wound was still actively bleeding at the time the complainant arrived at the hospital. This was after she had made a report at the police station. The clinical officer also found the cut wound to be 2 cm deep and 10 cm long. He also said that the wound was penetrating the skull. This confirms that it was indeed a deep cut wound.
29. Considering the extend of the wound, the fact that it was on the head and the front part, I find that this undoubtedly was harm that seriously injured the complainant’s health. The wound had to be sutured for it to stop bleeding. I am satisfied that the element of grievous harm has been proved beyond a reasonable doubt.
30. The appellant denied assaulting the complainant and causing her grievous harm. However, the complainant’s evidence is that the appellant assaulted her in broad daylight at around 5.00 p.m. The appellant was well known to her as her brother-in-law. It is true as submitted by learned counsel that there is contradiction on the issue of the time of the alleged attack with PW 1 saying that it was 5.00 p.m. while PW 3 said that she had left her mother at home at around 5.30 p.m. while she was well. The time difference between what PW 1 and PW 3 stated is minimal and therefore not a material contradiction. It is incapable of leading to a finding that there was doubt created in the case for the prosecution. It is apparent that the incident happened in the evening.
31. Secondly, the complainant’s evidence is consistent throughout that the appellant was the one who assaulted her. Her bleeding from the forehead corroborated her evidence that she had been assaulted. She immediately told her children that she had been assaulted by the appellant. PW 2 said in evidence that shortly before he into his mother’s house and saw her bleeding from the wound, he had seen the appellant entering his house in the same compound. The appellant’s evidence that in fact he was not around at the time is therefore discounted by the evidence of the complainant as supported by that of PW 2.
32. Section 143 of the Evidence Act (Cap. 80) Laws of Kenya, provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. What is required is the cogency of the evidence tendered by a particular witness. The fact that there was no other witness to support the complainant’s evidence that the appellant attacked and injured her cannot mean that she cannot be believed.
33. I am therefore satisfied that the complainant is a witness of truth and what she said is indeed what happened when the appellant went to her home and cut her with a panga. She positively identified the appellant, by way of recognition, as her assailant.
34. On the issue of the assault being unlawful, clearly, there was no justification for this brutish conduct upon the complainant, a lady, who had done nothing against the appellant. I therefore find that the assault was unlawful.
35. The appellant’s denial that he committed the offence is discounted by the complainant’s strong evidence which I have found consistent and truthful. I therefore reject his defence as unworthy of belief.
36. I am satisfied that the prosecution adduced evidence which established that indeed the appellant attacked the complainant and cut her on the forehead without any justification as a result of which she sustained a deep cut wound penetrating to the skull. The assault took place in broad day light. The likelihood that the appellant could have been confused with another person is therefore none existent.
37. This court therefore finds that the prosecution proved to the required standard of beyond any reasonable doubt that the appellant assaulted the complainant thereby causing her to sustain grievous harm. The learned trial magistrate was right in his finding so.
38. Consequently, I am satisfied that the appellant was correctly convicted. I affirm the trial court’s conviction on the offence of causing grievous harm contrary to section 234 PC. The appeal on conviction is therefore dismissed as lacking in merit.
39. The final ground raised by the appellant was on sentence with the appellant submitting that the learned trial magistrate failed to consider the appellant’s mitigation. That ground of appeal and submission in support thereof is not correct. To the contrary, the learned trial magistrate considered the mitigation, if what he said can be considered as such. The appellant said very briefly, after the judgment was read convicting him that he still denied the charge. The learned magistrate then went on to observe that he had considered the mitigation and the appellant did not show any remorse. He did not seem to appreciate that he had committed an offence.
40. Section 216 CPC provides that:
“The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.
41. Although this section is couched in permissive and not mandatory terms, receiving evidence before sentence is a useful guide for the court in assessing an appropriate sentence for an accused person.
42. The Sentencing Policy Guidelines, 2023 provide in paragraph 4.1.3.5 (see paragraph 22.12 of the prior Sentencing Policy Guidelines) that:
“The court should, as a matter of course, request a pre-sentence report in appropriate cases. The court should be guided by the pre-sentence reports presented and should be satisfied that the enquiry has been adequately conducted for the purposes of sentencing. While appreciating that pre-sentence reports are not binding, the court should give reasons for departing from the recommendations therein.”
43. It is therefore desirable to adhere to this policy guideline as read together with section 216 CPC in spite of it being permissive only.
44. I have looked at the trial court record and I note that the trial court did not request for a pre-sentence report before passing sentence. The evidence on record showed that there were no deep-seated differences between the complainant and the appellant even as the complainant said that the appellant was always insulting her. The complainant and the appellant are related as sister-in-law-brother-in law and stay in the same home. A pre-sentence report is important and, in such cases, may help to establish the cause of the conflict between the parties and even assist in resolution thereof through reconciliation, for instance where probation for the offender is recommended. Before passing the custodial sentence herein, it was imperative that the court requests for a pre-sentence report.
45. I therefore find that the learned trial magistrate ought to have requested for a pre-sentence report to inform himself of the appropriate sentence.
46. I note that the appellant had completed about six months of his four-year sentence in prison custody before he was released on bond after the court found that the bail report was favourable. Therefore, before concluding on the issue of sentence, I will request for a sentence review report from the Probation and Aftercare Department in order for the court to inform itself whether or not the appellant is suitable for sentence review.
47. Mention on 10/7/2025 for sentencing of the appellant.
48. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 30th day of June 2025 in the presence of:
The appellant in person in physical courtroom.
Munene holding brief for Ms. Kiragu for the appellant.
Charles Mwangi for the respondent.
Brian: Court assistant.