(Being an Appeal against the judgment by Hon. J.O. Manasses (RM) in Principal Magistrate’s Court at Sirisia, Case No E363 of 2022, Delivered on 18 th September,2024)
Citations:
1. Pandya Vs. Republic (1957) EA. (336).
2. Okeno Vs. Republic [1972] EA 32.
3. Kiilu & Another Vs. Republic [2005]1 KLR 174.
4. Ndaa Vs. Republic (1984) KLR.
5. Kithinji Vs Republic (Criminal Appeal E090 of 2024) [2025] KEHC 11217 (KLR) (30 July 2025) (Judgment) Justice DR Kavedza.
6. Miller Vs Ministry of Pensions, [1947] 2 All E R 372.
7. Bakare Vs State (1987) 1 NWLR (PT 52) 579.
8. Peter Ngure Mwangi Vs Republic [2014] eKLR.
Introduction:
1. Many are the decisions on the mandate of the First Appellate Court and whereas I may not be able to sample all of them here, it perhaps fits this case, to drop an anchor, even as I delve into the grounds of appeal and the responses, together with the written submissions, so that when I come back to the surface, I do not lose my footing.
2. In Pandya Vs. Republic (1957) EA. (336), the Court of Appeal stated thus: - “On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
3. In Okeno Vs. Republic [1972] EA 32, the Court of Appeal stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ( Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see ( Peters V Sunday Post 1978) E.A. 424.”
4. In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
Prosecution Case:
5. On 20 th August 2022, Moses Wenani Miruni (PW1) was leaving a funeral venue on a motor bike when the accused accosted them with fists and had to seek refuge in Geoffrey’s house. The police came and escorted both the complainant and the Dennis to the police station and later to the Hospital and were issued with P3 Form and County Medical Treatment notes.
6. Saul Wekesa Natembeya (PW2) equally told court on the 20 th August 2022, he was in the company of PW1 when 1 st appellant assaulted PW1 and bled profusely. Saul hit PW2 with a club on the head and fell unconscious for sometimes but later were taken to the police station and to the hospital. He was also issued with a P3 Form and treatment notes.
7. Edwin Mutoro (PW3) is a Registered Clinician attached to Sirisia Sub-County Hospital and upon the complainants presenting themselves at their health facility, he did examine them and issued Moses Miruni Wenani with a P3 form and Treatment notes which he produced as Exhibits 1 and 2 respectively. Equally, he issued P3 Form and Treatment notes in favour of Dennis Kakai as Exhibits 3 and 4, respectively.
8. Geoffrey Sinoko Mwalo (PW4) said that he was at the funeral on the 20 th August 2022 when he saw the accused persons assault PW1 with fists. They took refuge in his house. The police were notified and arrived and took them away.
9. No.87273 PC Willy Towett told court that on the 20 th August, 2022, he was tasked by the In-Charge to rush to the scene of crime and upon arrival, he found that the accused had assaulted the complainants and rescued them. Being satisfied with evidence on record, the Investigation Officer charged the Appellants on the 22 nd September, 2022 before the Principal Magistrate Court, at Sirisia, with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code.
10. In Count One, particulars of the offence were; “On the 20 th August 2022 at Nabeki village in Bungoma West Sub-County, within Bungoma County, jointly, wilfully and unlawfully assaulted Moses Wenani Miruni, thereby occasioning him, actual bodily harm” In Count two, Saul Wekesa Natembeya was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code and particulars of the offence were; “On the 20 th August 2022 at Nabeki village in Bungoma West Sub-County, within Bungoma County, jointly wilfully and unlawfully assaulted Denis Kakai Wafula thereby occasioning him, actual bodily harm ”
11. Upon close of the prosecution case, the learned Magistrate found that each, under section 211 CPC, had a case to answer. Whilst the 1 st Appellant settled on unsworn statement, the 2 nd Appellant elected sworn testimony.
12. The 1 st Appellant Philichon Simiyu Natembeya in his unsworn statement told court that on the fateful day, he had gone to visit his cousin one Jane Rose at Muskoma Bakery in Bungoma Town and together with her, they visited his brother who was unwell at Bungoma Main Prison. However, after two days, he was arrested and charged with this offence. The 2 nd Appellant, Saul Wekesa Natemebeya in his sworn testimony equally told court that on the fateful day, he was at Kipsigon working at the farm. However, a week later, he was arrested and charged with this offence, but he is in the dark as to the charges he is facing.
13. In the judgement delivered by the learned Magistrate, the appellants were found guilty and convicted and sentenced to serve three years each in count one and the 2 nd appellant was convicted and sentenced to serve three years in 2 nd count.
14. Aggrieved with the findings of the learned Magistrate, the Appellants have proffered an appeal. In their Petition of Appeal, they relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact by finding that the prosecution proved their case beyond reasonable doubt.
b. That the learned trial Magistrate erred in law and fact by entering a conviction despite the contradicting evidence of the prosecution witnesses.
c. That the learned trial Magistrate erred in law and fact by digressing and introducing issues not adduced to the evidence which impacted on the sentence imposed on the appellants.
d. That the learned trial Magistrate erred in law and fact by meting excessive sentence.
15. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
16. I have carefully considered the submissions made by the Appellants and the Respondents. I have also reviewed the evidence on record and the relevant law. I propose at this stage to examine the ingredients of the offence of assault so as to link it up with the evidence adduced and determine whether indeed the offence was proved.
17. Section 251 of the Penal Code (Cap 63) provides that: “Any person who unlawfully assaults another and thereby occasions him actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.” In the case of Ndaa Vs. Republic (1984) KLR the Court stated what consists of elements of assault causing actual bodily harm as: (a) Assaulting the Complainant or victim and (b) Occasioning actual bodily harm. Additionally, In the case of Kithinji Vs Republic (Criminal Appeal E090 of 2024) [2025] KEHC 11217 (KLR) (30 July 2025) (Judgment) Justice DR Kavedza held; “... the offence comprises three essential elements: unlawful assault, actual bodily harm, and a causal link between the assault and the harm.”
18. Consequently, the court is obligated to sieve the evidence on record and particularly on the part of the prosecution and find, if, the three ingredients have been proved beyond reasonable doubt.
19. The first lamentation by the Appellants was on alleged error on the part of the learned magistrate’s finding, that the prosecution proved its case beyond reasonable doubt. In respect, many are the decisions which define, as to what is proof beyond reasonable doubt. In the famous case of Miller Vs Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt : “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
20. My understanding is that, the state is obligated to prove their case beyond reasonable doubt but not beyond the shadow of a doubt. Lord Denning pellucidly, explains this in the Miller case(supra). Additionally, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt in Bakare Vs State (1987) 1 NWLR (PT 52) 579, stating: “… Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says, it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.”
21. The corroborated evidence on record is that indeed the accused persons assaulted the complainants at the funeral. They were rescued by PW4 and PW5 and taken to the hospital for treatment. Furthermore, the complainants were issued with P3 Forms and Treatment notes which demonstrate that indeed, they sustained bodily injuries.
22. The 2 nd lamentation was that there were contradicting evidence by the prosecution witnesses. In respect, it was alleged that two versions of the scene of crime were put forth. Whereas one version was that the complainants were assaulted at the funeral, the other version was that they were allegedly assaulted on the way from the funeral. I must say that in respect to contradictions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether contradictions are minor, or whether they go to the root of the matter. Further, contradictions in the prosecution case may be ignored if they are minor or do not point to deliberate untruthfulness on the part of the prosecution witnesse s.
23. In respect, I rely on Peter Ngure Mwangi Vs Republic [2014] eKLR , where the Court of Appeal, in respect to alleged inconsistencies in evidence, took the position that the main consideration should be whether the inconsistencies were material enough to weaken the probative value of the prosecution evidence. The Court stated as follows: - “We, therefore find that on the totality of the evidence before us, any difference there may have been in the evidence adduced by the prosecution consisted of minor discrepancies and inconsistencies. We find that these were not material and did not weaken the probative value of the evidence tendered by the prosecution in support of their case.
24. I think therefore, the crucial take away from these versions, is that, indeed, the complainants were at the funeral on this day that they were assaulted by the appellants.
25. The 3 rd and the 4 th lamentations will be taken together as they relate to sentencing. At page 57 of his judgement, it is recorded by the learned Magistrate; “…the Mt Elgon region is replete with several instances of violence and or assault as the area residents are used to such acts emanating from the members of members of and /or sympathizers of the Sabaot Land Defence, who have created havoc in this area by normalizing violence/assault mostly due to land matters as genesis. I am inclined to believe that the land they purport to defend belongs to God and the Government generally. It is uncouth. No one came with land on earth and we shall leave it all as we found it. This actual true position”
26. I believe, as unveiled in the obiter, the learned Magistrate digressed and did record an excerpt which he believed to be the ills, that bedevil the residents of Mt Elgon. This evidence is not captured by any of the witnesses and, as it were, anyone reading the ruling on sentence, will no doubt hold, that the learned Magistrate, may have put bare, his personal convictions. This is where my displeasure lay.
27. In respect to excessive sentence, the fact that the probation report was not favorable to the appellants, sentencing was still at the discretion of the learned Magistrate. Equally, reading Article 50(2)(p) of the Constitution, and there being no past records, the appellants were entitled to benefit, to a lesser severe punishment instead of three years imprisonment. It was prudent, that each appellant ought to have been given an option of a fine.
28. In disposal, this appeal partially succeeds and issue orders as hereunder;
a. I uphold the conviction as founded by the Trial Court.
b. In respect to sentence, it is excessive and I set it aside.
c. The term served by the Appellants in prison is sufficient, in the circumstances.
d. The Appellants are set free unless otherwise held back by a lawful warrant.
Orders Accordingly.
Delivered virtually on 19 th May, 2026 in the presence of Miss Matere for the ODPP, Appellant in person and C/A Aziza Abdi
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Citations:
1. Pandya Vs. Republic (1957) EA. (336).
2. Okeno Vs. Republic [1972] EA 32.
3. Kiilu & Another Vs. Republic [2005]1 KLR 174.
4. Ndaa Vs. Republic (1984) KLR.
5. Kithinji Vs Republic (Criminal Appeal E090 of 2024) [2025] KEHC 11217 (KLR) (30 July 2025) (Judgment) Justice DR Kavedza.
6. Miller Vs Ministry of Pensions, [1947] 2 All E R 372.
7. Bakare Vs State (1987) 1 NWLR (PT 52) 579.
8. Peter Ngure Mwangi Vs Republic [2014] eKLR.
Introduction:
1. Many are the decisions on the mandate of the First Appellate Court and whereas I may not be able to sample all of them here, it perhaps fits this case, to drop an anchor, even as I delve into the grounds of appeal and the responses, together with the written submissions, so that when I come back to the surface, I do not lose my footing.
2. In Pandya Vs. Republic (1957) EA. (336), the Court of Appeal stated thus: - “On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
3. In Okeno Vs. Republic [1972] EA 32, the Court of Appeal stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ( Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see ( Peters V Sunday Post 1978) E.A. 424.”
4. In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
Prosecution Case:
5. On 20 th August 2022, Moses Wenani Miruni (PW1) was leaving a funeral venue on a motor bike when the accused accosted them with fists and had to seek refuge in Geoffrey’s house. The police came and escorted both the complainant and the Dennis to the police station and later to the Hospital and were issued with P3 Form and County Medical Treatment notes.
6. Saul Wekesa Natembeya (PW2) equally told court on the 20 th August 2022, he was in the company of PW1 when 1 st appellant assaulted PW1 and bled profusely. Saul hit PW2 with a club on the head and fell unconscious for sometimes but later were taken to the police station and to the hospital. He was also issued with a P3 Form and treatment notes.
7. Edwin Mutoro (PW3) is a Registered Clinician attached to Sirisia Sub-County Hospital and upon the complainants presenting themselves at their health facility, he did examine them and issued Moses Miruni Wenani with a P3 form and Treatment notes which he produced as Exhibits 1 and 2 respectively. Equally, he issued P3 Form and Treatment notes in favour of Dennis Kakai as Exhibits 3 and 4, respectively.
8. Geoffrey Sinoko Mwalo (PW4) said that he was at the funeral on the 20 th August 2022 when he saw the accused persons assault PW1 with fists. They took refuge in his house. The police were notified and arrived and took them away.
9. No.87273 PC Willy Towett told court that on the 20 th August, 2022, he was tasked by the In-Charge to rush to the scene of crime and upon arrival, he found that the accused had assaulted the complainants and rescued them. Being satisfied with evidence on record, the Investigation Officer charged the Appellants on the 22 nd September, 2022 before the Principal Magistrate Court, at Sirisia, with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code.
10. In Count One, particulars of the offence were; “On the 20 th August 2022 at Nabeki village in Bungoma West Sub-County, within Bungoma County, jointly, wilfully and unlawfully assaulted Moses Wenani Miruni, thereby occasioning him, actual bodily harm” In Count two, Saul Wekesa Natembeya was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code and particulars of the offence were; “On the 20 th August 2022 at Nabeki village in Bungoma West Sub-County, within Bungoma County, jointly wilfully and unlawfully assaulted Denis Kakai Wafula thereby occasioning him, actual bodily harm ”
11. Upon close of the prosecution case, the learned Magistrate found that each, under section 211 CPC, had a case to answer. Whilst the 1 st Appellant settled on unsworn statement, the 2 nd Appellant elected sworn testimony.
12. The 1 st Appellant Philichon Simiyu Natembeya in his unsworn statement told court that on the fateful day, he had gone to visit his cousin one Jane Rose at Muskoma Bakery in Bungoma Town and together with her, they visited his brother who was unwell at Bungoma Main Prison. However, after two days, he was arrested and charged with this offence. The 2 nd Appellant, Saul Wekesa Natemebeya in his sworn testimony equally told court that on the fateful day, he was at Kipsigon working at the farm. However, a week later, he was arrested and charged with this offence, but he is in the dark as to the charges he is facing.
13. In the judgement delivered by the learned Magistrate, the appellants were found guilty and convicted and sentenced to serve three years each in count one and the 2 nd appellant was convicted and sentenced to serve three years in 2 nd count.
14. Aggrieved with the findings of the learned Magistrate, the Appellants have proffered an appeal. In their Petition of Appeal, they relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact by finding that the prosecution proved their case beyond reasonable doubt.
b. That the learned trial Magistrate erred in law and fact by entering a conviction despite the contradicting evidence of the prosecution witnesses.
c. That the learned trial Magistrate erred in law and fact by digressing and introducing issues not adduced to the evidence which impacted on the sentence imposed on the appellants.
d. That the learned trial Magistrate erred in law and fact by meting excessive sentence.
15. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
16. I have carefully considered the submissions made by the Appellants and the Respondents. I have also reviewed the evidence on record and the relevant law. I propose at this stage to examine the ingredients of the offence of assault so as to link it up with the evidence adduced and determine whether indeed the offence was proved.
17. Section 251 of the Penal Code (Cap 63) provides that: “Any person who unlawfully assaults another and thereby occasions him actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.” In the case of Ndaa Vs. Republic (1984) KLR the Court stated what consists of elements of assault causing actual bodily harm as: (a) Assaulting the Complainant or victim and (b) Occasioning actual bodily harm. Additionally, In the case of Kithinji Vs Republic (Criminal Appeal E090 of 2024) [2025] KEHC 11217 (KLR) (30 July 2025) (Judgment) Justice DR Kavedza held; “... the offence comprises three essential elements: unlawful assault, actual bodily harm, and a causal link between the assault and the harm.”
18. Consequently, the court is obligated to sieve the evidence on record and particularly on the part of the prosecution and find, if, the three ingredients have been proved beyond reasonable doubt.
19. The first lamentation by the Appellants was on alleged error on the part of the learned magistrate’s finding, that the prosecution proved its case beyond reasonable doubt. In respect, many are the decisions which define, as to what is proof beyond reasonable doubt. In the famous case of Miller Vs Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt : “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
20. My understanding is that, the state is obligated to prove their case beyond reasonable doubt but not beyond the shadow of a doubt. Lord Denning pellucidly, explains this in the Miller case(supra). Additionally, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt in Bakare Vs State (1987) 1 NWLR (PT 52) 579, stating: “… Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says, it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.”
21. The corroborated evidence on record is that indeed the accused persons assaulted the complainants at the funeral. They were rescued by PW4 and PW5 and taken to the hospital for treatment. Furthermore, the complainants were issued with P3 Forms and Treatment notes which demonstrate that indeed, they sustained bodily injuries.
22. The 2 nd lamentation was that there were contradicting evidence by the prosecution witnesses. In respect, it was alleged that two versions of the scene of crime were put forth. Whereas one version was that the complainants were assaulted at the funeral, the other version was that they were allegedly assaulted on the way from the funeral. I must say that in respect to contradictions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether contradictions are minor, or whether they go to the root of the matter. Further, contradictions in the prosecution case may be ignored if they are minor or do not point to deliberate untruthfulness on the part of the prosecution witnesse s.
23. In respect, I rely on Peter Ngure Mwangi Vs Republic [2014] eKLR , where the Court of Appeal, in respect to alleged inconsistencies in evidence, took the position that the main consideration should be whether the inconsistencies were material enough to weaken the probative value of the prosecution evidence. The Court stated as follows: - “We, therefore find that on the totality of the evidence before us, any difference there may have been in the evidence adduced by the prosecution consisted of minor discrepancies and inconsistencies. We find that these were not material and did not weaken the probative value of the evidence tendered by the prosecution in support of their case.
24. I think therefore, the crucial take away from these versions, is that, indeed, the complainants were at the funeral on this day that they were assaulted by the appellants.
25. The 3 rd and the 4 th lamentations will be taken together as they relate to sentencing. At page 57 of his judgement, it is recorded by the learned Magistrate; “…the Mt Elgon region is replete with several instances of violence and or assault as the area residents are used to such acts emanating from the members of members of and /or sympathizers of the Sabaot Land Defence, who have created havoc in this area by normalizing violence/assault mostly due to land matters as genesis. I am inclined to believe that the land they purport to defend belongs to God and the Government generally. It is uncouth. No one came with land on earth and we shall leave it all as we found it. This actual true position”
26. I believe, as unveiled in the obiter, the learned Magistrate digressed and did record an excerpt which he believed to be the ills, that bedevil the residents of Mt Elgon. This evidence is not captured by any of the witnesses and, as it were, anyone reading the ruling on sentence, will no doubt hold, that the learned Magistrate, may have put bare, his personal convictions. This is where my displeasure lay.
27. In respect to excessive sentence, the fact that the probation report was not favorable to the appellants, sentencing was still at the discretion of the learned Magistrate. Equally, reading Article 50(2)(p) of the Constitution, and there being no past records, the appellants were entitled to benefit, to a lesser severe punishment instead of three years imprisonment. It was prudent, that each appellant ought to have been given an option of a fine.
28. In disposal, this appeal partially succeeds and issue orders as hereunder;
a. I uphold the conviction as founded by the Trial Court.
b. In respect to sentence, it is excessive and I set it aside.
c. The term served by the Appellants in prison is sufficient, in the circumstances.
d. The Appellants are set free unless otherwise held back by a lawful warrant.
Orders Accordingly.
Delivered virtually on 19 th May, 2026 in the presence of Miss Matere for the ODPP, Appellant in person and C/A Aziza Abdi
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