REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL APPEAL NO E033 OF 2021
LW, GITARI, J
April 23, 2026
MOSES MUSYOKA………………………………………………………………APPELANT
VS
REPUBLIC……………………………………………………………………RESPONDENT
Judgment
The appeal arises from the judgment and proceedings in the Chief Magistrate’s Court at Kitui Criminal Case No 995 of 2019 where the appellant was charged with grievous harm contrary to Section 234 of the Penal Code. The particulars of the charge were that on 23/09/2019 at around 1000hrs at Kwa-Mutheke shopping center, Museve sub-location and Kitui Central, unlawfully assaulted Frodinah Kimanzi occasioning her actual bodily harm.
The appellant pled not guilty and necessitated a full trial. Ultimately, the appellant was found guilty and sentenced to serve thirty-five (35) years of imprisonment.
The appellant was dissatisfied with the conviction and filled this appeal based on the following grounds as stated in the Petition of Appeal:
1. That, the trial Magistrate erred in law and facts for not considering that the appellant was taken to court after having completed more than 24 hours which is against the law.
2. That the trial Magistrate erred both in law and facts by convicting the appellant without considering that the appellant was not accorded witness statements
3. That the trial Magistrate erred both in law and facts by convicting the appellant without considering that the identification of the appellant as the perpetrator of the offence was not proved.
The appellant prays that this conviction be quashed, the sentence be set aside and he be acquitted.
The Prosecution’s case
The complainant PW1 testified that she is an entrepreneur who owns a club and a butchery. The accused person was her employee while PW2 is her husband. On 23/09/2019 at about 11.00 AM the complainant was at work while PW2 had gone to get more stock in town. Feeling nauseated due to her five-month-old pregnancy, she went outside to vomit leaving the accused person inside the butchery. It was at this time when the accused person came and attacked her.
The accused person came and started stabbing her on the chest telling her that he will kill her. The complainant tried to run but he stabbed her 5 times on the head and she fell down. He cut her on the mouth and stepped on her tummy killing her unborn child. The accused then strangled her which resulted to her falling unconscious only to regain consciousness 2 weeks later in Kenyatta National Hospital.
PW2 testified that on the material day 23/9/19 he left his wife together with the accused person at the work place. He asserted that he was in constant communication with his wife through text messages but she stopped responding. In evidence he stated that a branding business that he was expecting to stop by the butchery called to say that the business premise was locked. He tried calling his wife on phone without success. He found this unusual and sent Woye Mati (PW3) a boda boda cyclist to jump over the wall and check on the complainant. PW3 testified that he found the complainant lying down and bleeding. He recalled that he had seen the accused person boarding a motorbike. He called the cyclist and told him not to release the accused person. PW3 also called a police officer PW4.
The police officer testified that on his arrival, he found the complainant lying in a pool of blood and was unconscious. He stated that he saw a rock and collected 3 teeth. He stated that he had also seen the accused on the same day at around 10:00 AM. He testified that he knew the accused person since he had seen him around for quite some time and the police post was only 300 meters from the business.
The investigating officer testified that she found the complainant in critical condition and unconscious. She added that the complainant was admitted at Kenyatta National hospital for 3 months. After being discharged, she recorded a statement that stated that it was the accused who injured her.
The clinical officer produced a p3 which showed that the complainant sustained multiple wounds on her left eye and deep cuts on her face and chest. The injuries were classified as grievous harm since she lost many teeth, her tongue sliced into two and could not feed orally.
Defence Case
The accused stated that on the material day he was at the market when he was arrested and put in a Probox then taken to the police station. He further testified that there was a day that he quarreled with the complainant because he carried her on his motorbike but she did not pay the whole amount. When the accused demanded for the balance, the complainant felt threatened. The accused denied beating the complainant stating that he never fights, attends church and even sings in the choir.
Appellant’s Submissions
On the first ground the appellant submits that he was arrested on 23rd September 2019 and taken to court on 3rd October 2019 therefore held for 10 days without being arraigned in court. He submits that this violates his rights under Article 49 (1) (f). He relies on the case of THOMAS PATRICK GILBERT CHEMIMONDELEY VS REPUBLIC (2008) e KLR, The court of appeal stated that: ‘We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under our constitution 2010 (this case was decided before the promulgation of Constitution 2010), the prosecution is now under a duty to provide an accused person with and to do so in advance of the trial, all the relevant material such as copies of statement of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items."
On the second ground the appellant submits that he was not accorded witness statements. He submits that he was arraigned in court on the 15/10/2019, took a plea and thereafter the court did not give an order for him to be accorded witness statements. He submits that he asked for the statements on the 24/09/2020 and the court gave an order for the same to be furnished. He adds that there is no confirmation from the court on record stating that the statements were accorded. He submits that this violates his right to fair trial under Article 50(2) (j) of the Constitution of Kenya.
On the third ground, the appellant submits that his identification as the perpetrator of the offence was not proved. He submits that the manner in which the evidence was tendered does not link the appellant to the offence. He adds that he was arrested on suspicion because he remained with the complainant at the place of work hence the assumption that he had committed the crime. The appellant submits that PW4 did not see him at the scene of the crime and that the circumstances leading to his arrest are not clear.
Respondent’s Submissions
The Respondent submits that all the requisite ingredients for a conviction in a charge of grievous harm were proven beyond reasonable doubt and that the accused person was properly identified by the respondent whose evidence was corroborated by other witnesses. He further submits that the issue of delay in the appellant’s arraignment does not invalidate the trial.
Analysis and determination
I have considered the proceedings and Judgement before the trial court, the grounds of appeal and the submissions. The issues which arise for determination are:
a) Whether the accused persons rights under Article 49 (1) (f) and 50 (2) (j) were violated.
b) Whether the appellant was properly identified as the perpetrator.
This being a first appeal, this court has a duty to revisit the evidence recorded by the trial court, reevaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and should therefore make due allowance for that. In John Oketch Abongo vs. Republic [2000] eKLR the court stated that:
“The duty of a first appellate court in regard to the evidence and facts is now settled in law. It is required to subject the evidence to fresh and independent analysis and, in appropriate circumstances, even to make its own independent findings and conclusions. In doing so however, the first appellate court must bear in mind that it has only the record and has not enjoyed the advantage of seeing and observing witnesses under testimony.”
In regards to the alleged breach of Article 49 (1) (f) the Constitution provides that
” An arrested person shall be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested, and if the twenty-four hours period ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.”
In the case of Hussein Khalid & 16 others v the Attorney General, Inspector General of Police and the Director of Public Prosecutions Petition No 21 of 2017, the Supreme Court stated as follows:
“Consequently, without downplaying the Appellants’ allegations of infringement, we find that they have recourse under Article 22 against the specific violations they may have undergone in the manner of their arrest, detention and arraignment. They may seek damages or other reliefs available to them. We do not think that such violations in themselves should warrant the vitiating of the trial processes. “
In the case of Omanya v Republic Criminal Appeal 280 of 2019 the Court of Appeal stated that:
”If at all there was any unreasonable delay in charging the appellant, his remedy can only lie in damages, not in an acquittal.”
It is evident from the charge sheet that the appellant was arrested on 23rd September 2019 and taken to court on 3rd October 2019 according to the trial records. This is clearly a violation of his rights that are guaranteed under Article 49 (1) (f) of the Constitution of Kenya.
However, as was rightly pointed out by the respondent’s counsel, the violation of the appellants right under Article 49 (1) (f) of the Constitution does not vitiate his conviction and can be pursued separately. This is in line with the above decisions of the Supreme Court and the Court of Appeal. The ground must fail.
Indubitably, the Constitution also requires the state to furnish any documents which the state intends to rely on during the prosecution in accordance with Article 50 (2) (j) of the Constitution which provides:
“Every accused person has the right to fair trial which includes the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence”
The Court of Appeal at Kisumu in Ogunda V Republic (2024) KECA 131 stated that:
“Whereas it is a salutary practice for the court to record that an accused person confirms that he has received witness statements and other documents, it is not fatal for a conviction if there is no specific record indicating that the documents were supplied if the context is clear that they were, in fact, supplied.”
In the Court of Appeal case of JWM v Republic (2019) KECA 280 (KLR) the court stated as follows:
“It is clear that failure to be supplied with witness statements will not ipso facto lead to nullification of a conviction. The court must go further and determine whether lack of witness statements was prejudicial to the appellant in the circumstances of the case.”
The appellant submits that that the prosecution did not furnish him with witness statements. On 24.09/20, the appellant applied to be supplied with the witness statements. He however did not apply for the statements again nor did he inform the court that they were never supplied. I have considered these factors and carefully analyzed the oral examination by the appellant on record. Despite the varying degrees of scrutiny applied during cross-examination, it is evident that the appellant remained fully cognizant of the nature of the charges and the weight of the evidence. In line with the above Court of Appeal decision I am of the view that he was not prejudiced. The ground must fail.
On the issue Whether the appellant was correctly identified as the perpetrator. The Court of Appeal in the case of JOSEPH NGUMBAU NZALO VS. REPUBLIC (1991) 2KAR Pg 212 in which the court stated as follows:
“A careful direction regarding the condition prevailing at the time of identification and the length of time for which the witness had the accused person under observation, together with the need to exclude the possibility of error was essential.”
In the English Case of R. V. Turnbull and others [1976] 3 ALL ER 549 Lord Widgery, CJ said;
“The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?”
The incident happened at 11: 00 AM in broad daylight meaning there was ample light. PW1, PW2, PW3 and PW4 all testified that the accused person was the complainant’s employee signifying he was well known to her and could not fail to recognize him. PW1 also stated that the accused person spoke to her during the attack and uttered the words that he was going to kill her.
The accused person sliced the complainant’s tongue and cut her mouth hence he must have been in close proximity to the complainant. The manner of attack in general is one that required very close proximity. He targeted the face and head mainly, a fact that shows that he was very close to the complainant.
The appellant stated in his submissions that severe trauma and a stab wound can lead to dissociative amnesia where the person blocks the event due to emotional shock. Although this is possible, it was not the case as the investigating officer testified that the complainant’s statement was recorded after she had been discharged from the hospital. Nothing in the medical reports reveals that her memory may have been tainted. Even if this was the case, just like the trial court I do not see why the complainant would frame the accused person in such a matter and for an alleged motorbike ride debt.
PW4 who is a police officer stated that he saw the appellant’s clothes at the scene of the crime. These were the same clothes that the appellant wore in the morning at the scene of the crime. PW5 corroborated this evidence and stated that a bloody t-shirt and a pair of slippers belonging to the appellant were recovered from the scene. Not to mention that PW1 identified the accused as the person that attacked her.
The finding by the Learned Judge
I am convinced that there was no error in the identification of the appellant contrary to his contention that his defence was not considered, it is clear from the record that it was found to be a mere denial.
I am also satisfied that the evidence linking the appellant to grievous harm towards the respondent was watertight and free from error hence the charge was proved beyond reasonable doubt the standard required to prove Criminal Cases.
In the premises therefore, the appellant’s appeal is dismissed in its entirety. The conviction and sentence are upheld.
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL APPEAL NO E033 OF 2021
LW, GITARI, J
April 23, 2026
MOSES MUSYOKA………………………………………………………………APPELANT
VS
REPUBLIC……………………………………………………………………RESPONDENT
Judgment
The appeal arises from the judgment and proceedings in the Chief Magistrate’s Court at Kitui Criminal Case No 995 of 2019 where the appellant was charged with grievous harm contrary to Section 234 of the Penal Code. The particulars of the charge were that on 23/09/2019 at around 1000hrs at Kwa-Mutheke shopping center, Museve sub-location and Kitui Central, unlawfully assaulted Frodinah Kimanzi occasioning her actual bodily harm.
The appellant pled not guilty and necessitated a full trial. Ultimately, the appellant was found guilty and sentenced to serve thirty-five (35) years of imprisonment.
The appellant was dissatisfied with the conviction and filled this appeal based on the following grounds as stated in the Petition of Appeal:
1. That, the trial Magistrate erred in law and facts for not considering that the appellant was taken to court after having completed more than 24 hours which is against the law.
2. That the trial Magistrate erred both in law and facts by convicting the appellant without considering that the appellant was not accorded witness statements
3. That the trial Magistrate erred both in law and facts by convicting the appellant without considering that the identification of the appellant as the perpetrator of the offence was not proved.
The appellant prays that this conviction be quashed, the sentence be set aside and he be acquitted.
The Prosecution’s case
The complainant PW1 testified that she is an entrepreneur who owns a club and a butchery. The accused person was her employee while PW2 is her husband. On 23/09/2019 at about 11.00 AM the complainant was at work while PW2 had gone to get more stock in town. Feeling nauseated due to her five-month-old pregnancy, she went outside to vomit leaving the accused person inside the butchery. It was at this time when the accused person came and attacked her.
The accused person came and started stabbing her on the chest telling her that he will kill her. The complainant tried to run but he stabbed her 5 times on the head and she fell down. He cut her on the mouth and stepped on her tummy killing her unborn child. The accused then strangled her which resulted to her falling unconscious only to regain consciousness 2 weeks later in Kenyatta National Hospital.
PW2 testified that on the material day 23/9/19 he left his wife together with the accused person at the work place. He asserted that he was in constant communication with his wife through text messages but she stopped responding. In evidence he stated that a branding business that he was expecting to stop by the butchery called to say that the business premise was locked. He tried calling his wife on phone without success. He found this unusual and sent Woye Mati (PW3) a boda boda cyclist to jump over the wall and check on the complainant. PW3 testified that he found the complainant lying down and bleeding. He recalled that he had seen the accused person boarding a motorbike. He called the cyclist and told him not to release the accused person. PW3 also called a police officer PW4.
The police officer testified that on his arrival, he found the complainant lying in a pool of blood and was unconscious. He stated that he saw a rock and collected 3 teeth. He stated that he had also seen the accused on the same day at around 10:00 AM. He testified that he knew the accused person since he had seen him around for quite some time and the police post was only 300 meters from the business.
The investigating officer testified that she found the complainant in critical condition and unconscious. She added that the complainant was admitted at Kenyatta National hospital for 3 months. After being discharged, she recorded a statement that stated that it was the accused who injured her.
The clinical officer produced a p3 which showed that the complainant sustained multiple wounds on her left eye and deep cuts on her face and chest. The injuries were classified as grievous harm since she lost many teeth, her tongue sliced into two and could not feed orally.
Defence Case
The accused stated that on the material day he was at the market when he was arrested and put in a Probox then taken to the police station. He further testified that there was a day that he quarreled with the complainant because he carried her on his motorbike but she did not pay the whole amount. When the accused demanded for the balance, the complainant felt threatened. The accused denied beating the complainant stating that he never fights, attends church and even sings in the choir.
Appellant’s Submissions
On the first ground the appellant submits that he was arrested on 23rd September 2019 and taken to court on 3rd October 2019 therefore held for 10 days without being arraigned in court. He submits that this violates his rights under Article 49 (1) (f). He relies on the case of THOMAS PATRICK GILBERT CHEMIMONDELEY VS REPUBLIC (2008) e KLR, The court of appeal stated that: ‘We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under our constitution 2010 (this case was decided before the promulgation of Constitution 2010), the prosecution is now under a duty to provide an accused person with and to do so in advance of the trial, all the relevant material such as copies of statement of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items."
On the second ground the appellant submits that he was not accorded witness statements. He submits that he was arraigned in court on the 15/10/2019, took a plea and thereafter the court did not give an order for him to be accorded witness statements. He submits that he asked for the statements on the 24/09/2020 and the court gave an order for the same to be furnished. He adds that there is no confirmation from the court on record stating that the statements were accorded. He submits that this violates his right to fair trial under Article 50(2) (j) of the Constitution of Kenya.
On the third ground, the appellant submits that his identification as the perpetrator of the offence was not proved. He submits that the manner in which the evidence was tendered does not link the appellant to the offence. He adds that he was arrested on suspicion because he remained with the complainant at the place of work hence the assumption that he had committed the crime. The appellant submits that PW4 did not see him at the scene of the crime and that the circumstances leading to his arrest are not clear.
Respondent’s Submissions
The Respondent submits that all the requisite ingredients for a conviction in a charge of grievous harm were proven beyond reasonable doubt and that the accused person was properly identified by the respondent whose evidence was corroborated by other witnesses. He further submits that the issue of delay in the appellant’s arraignment does not invalidate the trial.
Analysis and determination
I have considered the proceedings and Judgement before the trial court, the grounds of appeal and the submissions. The issues which arise for determination are:
a) Whether the accused persons rights under Article 49 (1) (f) and 50 (2) (j) were violated.
b) Whether the appellant was properly identified as the perpetrator.
This being a first appeal, this court has a duty to revisit the evidence recorded by the trial court, reevaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and should therefore make due allowance for that. In John Oketch Abongo vs. Republic [2000] eKLR the court stated that:
“The duty of a first appellate court in regard to the evidence and facts is now settled in law. It is required to subject the evidence to fresh and independent analysis and, in appropriate circumstances, even to make its own independent findings and conclusions. In doing so however, the first appellate court must bear in mind that it has only the record and has not enjoyed the advantage of seeing and observing witnesses under testimony.”
In regards to the alleged breach of Article 49 (1) (f) the Constitution provides that
” An arrested person shall be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested, and if the twenty-four hours period ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.”
In the case of Hussein Khalid & 16 others v the Attorney General, Inspector General of Police and the Director of Public Prosecutions Petition No 21 of 2017, the Supreme Court stated as follows:
“Consequently, without downplaying the Appellants’ allegations of infringement, we find that they have recourse under Article 22 against the specific violations they may have undergone in the manner of their arrest, detention and arraignment. They may seek damages or other reliefs available to them. We do not think that such violations in themselves should warrant the vitiating of the trial processes. “
In the case of Omanya v Republic Criminal Appeal 280 of 2019 the Court of Appeal stated that:
”If at all there was any unreasonable delay in charging the appellant, his remedy can only lie in damages, not in an acquittal.”
It is evident from the charge sheet that the appellant was arrested on 23rd September 2019 and taken to court on 3rd October 2019 according to the trial records. This is clearly a violation of his rights that are guaranteed under Article 49 (1) (f) of the Constitution of Kenya.
However, as was rightly pointed out by the respondent’s counsel, the violation of the appellants right under Article 49 (1) (f) of the Constitution does not vitiate his conviction and can be pursued separately. This is in line with the above decisions of the Supreme Court and the Court of Appeal. The ground must fail.
Indubitably, the Constitution also requires the state to furnish any documents which the state intends to rely on during the prosecution in accordance with Article 50 (2) (j) of the Constitution which provides:
“Every accused person has the right to fair trial which includes the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence”
The Court of Appeal at Kisumu in Ogunda V Republic (2024) KECA 131 stated that:
“Whereas it is a salutary practice for the court to record that an accused person confirms that he has received witness statements and other documents, it is not fatal for a conviction if there is no specific record indicating that the documents were supplied if the context is clear that they were, in fact, supplied.”
In the Court of Appeal case of JWM v Republic (2019) KECA 280 (KLR) the court stated as follows:
“It is clear that failure to be supplied with witness statements will not ipso facto lead to nullification of a conviction. The court must go further and determine whether lack of witness statements was prejudicial to the appellant in the circumstances of the case.”
The appellant submits that that the prosecution did not furnish him with witness statements. On 24.09/20, the appellant applied to be supplied with the witness statements. He however did not apply for the statements again nor did he inform the court that they were never supplied. I have considered these factors and carefully analyzed the oral examination by the appellant on record. Despite the varying degrees of scrutiny applied during cross-examination, it is evident that the appellant remained fully cognizant of the nature of the charges and the weight of the evidence. In line with the above Court of Appeal decision I am of the view that he was not prejudiced. The ground must fail.
On the issue Whether the appellant was correctly identified as the perpetrator. The Court of Appeal in the case of JOSEPH NGUMBAU NZALO VS. REPUBLIC (1991) 2KAR Pg 212 in which the court stated as follows:
“A careful direction regarding the condition prevailing at the time of identification and the length of time for which the witness had the accused person under observation, together with the need to exclude the possibility of error was essential.”
In the English Case of R. V. Turnbull and others [1976] 3 ALL ER 549 Lord Widgery, CJ said;
“The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?”
The incident happened at 11: 00 AM in broad daylight meaning there was ample light. PW1, PW2, PW3 and PW4 all testified that the accused person was the complainant’s employee signifying he was well known to her and could not fail to recognize him. PW1 also stated that the accused person spoke to her during the attack and uttered the words that he was going to kill her.
The accused person sliced the complainant’s tongue and cut her mouth hence he must have been in close proximity to the complainant. The manner of attack in general is one that required very close proximity. He targeted the face and head mainly, a fact that shows that he was very close to the complainant.
The appellant stated in his submissions that severe trauma and a stab wound can lead to dissociative amnesia where the person blocks the event due to emotional shock. Although this is possible, it was not the case as the investigating officer testified that the complainant’s statement was recorded after she had been discharged from the hospital. Nothing in the medical reports reveals that her memory may have been tainted. Even if this was the case, just like the trial court I do not see why the complainant would frame the accused person in such a matter and for an alleged motorbike ride debt.
PW4 who is a police officer stated that he saw the appellant’s clothes at the scene of the crime. These were the same clothes that the appellant wore in the morning at the scene of the crime. PW5 corroborated this evidence and stated that a bloody t-shirt and a pair of slippers belonging to the appellant were recovered from the scene. Not to mention that PW1 identified the accused as the person that attacked her.
The finding by the Learned Judge
I am convinced that there was no error in the identification of the appellant contrary to his contention that his defence was not considered, it is clear from the record that it was found to be a mere denial.
I am also satisfied that the evidence linking the appellant to grievous harm towards the respondent was watertight and free from error hence the charge was proved beyond reasonable doubt the standard required to prove Criminal Cases.
In the premises therefore, the appellant’s appeal is dismissed in its entirety. The conviction and sentence are upheld.