(Being an Appeal from the Judgment of the Principal Magistrate’s Court at Kaloleni by Hon. R. Amwayi Principal Magistrate delivered on 8 th day of June, 2022 in Criminal Case No. E110 of 2022)
The respondents were charged with the offence of grievous harm contrary to Section 234 of the Penal Code. It was alleged that on the 24 th day of September, 2022 at Mwanzai village, Jibana location, Kaloleni Sub County in Kilifi County with others not before court did grievous harm to Anderson Tsuma.
The appellants pleaded not guilty to the charges when they were arraigned before the court. The prosecution called three witnesses to prove the charges against the respondents. The respondents in their defence gave sworn statement and di not call any witnesses. In a judgment delivered on 8 th June, 2022 the trial magistrate found the respondents guilty of the offence of grievous harm and sentenced them to pay a fine of Kshs. 100,000/= each in default to serve two (2) years imprisonment.
The appellant was aggrieved by the sentence imposed by the trial court upon the respondents by the trial court and preferred this appeal raising two grounds to wit:
1. That the learned trial magistrate erred in law by sentencing the respondents to pay a fine of Kshs. 100,000/= in default to serve two (2) years imprisonment without taking into account the aggravating circumstances in this case being that the victim has constant headaches and has memory lapses as a result of the act;
2. THAT the learned trial magistrate erred in law by sentencing the respondents to pay a fine of Kshs. 100,000/= in default to serve two (2) years, a sentence that was too lenient in the circumstances.
The prosecution case was based on the evidence of three witnesses. The complainant who testified as PW1 told the court that on 24 th September, 2022 at around 4pm he had attended a funeral in Chonyi. He was with Omar. While at the funeral he was called by Japheth Chiro the owner of motorcycle he was using to take him to Kichinjoni. On their way to Kichinjoni they encountered young men armed with crude weapons who attacked them. He was seriously injured. He said he was able to identify the respondents as among the attackers. He was examined by PW1 who noted the injuries the complainant sustained. PW1 concluded that the injuries amounted to grievous harm. PW3 who took over the investigations from PC Tsuma confirmed that the matter was reported at Kaloleni police station on 24 th September, 2022. He also confirmed that the P3 Form was filled and the degree of injury was confirmed to be grievous harm. He also confirmed that the investigating officer visited the scene. He also told the court that the complainant was able to identify the respondents as among the assailants.
The respondents in their defence raised a defence of alibi stating that on the material date they were not at the scene of the crime. The 1 st respondent did not recall the events of the alleged date of the offence. He told the court that he was arrested on 10 th October, 2022 while in his house and told that he had assaulted the complainant. He denied committing the offence. The 2 nd r4spondent on his part he said on the material date he was in Mtwapa where he had been called by Toyota. He said he was surprised to be arrested on 10 th October, 2022 on allegation that he assaulted the complainant. He denied committing the offence as alleged.
The trial court found the respondents guilty and sentenced them to pay a fine of Kshs. 100,000/= in default to serve two years imprisonment.
The appeal was canvassed by way of written submissions. The record shows that it is only the appellant who filed written submissions. The respondents though served with the appeal and the subsequent mention dates they did not appear or file submissions in opposition to the appeal.
In its submissions the appellant termed the sentence as illegal, irregular and improper. The appellant referred to the sentence sustained by the complainant and argued that the sentence was too lenient. Reference has been made to the provision of Section 234 of the Penal Code which provides for life imprisonment for the offence of grievous harm. Reference was further made to the case of Alister Anthony Pareria vs State of Maharashtra (2012) S.C.C 648 where the Supreme Court of India rendered itself thus:
“Sentencing is an important task in the matter’s crime. One of the prime objectives of criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and manner in which the crime is done. There is no straightforward formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.”
It was argued that in the instant case the appellant submitted that the complainant narrated how he was attacked leading to the injuries he sustained facts which the respondents did not controvert in their defence.
Further the appellant made reference to Section 4 of the Penal Code on what grievous harm is and argued that owing to the circumstances under which the offence was committed, there was need for a deterrence sentence. Further reference was made to the case of Musyimi Ndava vs Republic (2019) e KLR where a sentence of 35 years was upheld in a case of grievous harm.
I have considered the submissions by the appellant. It is trite that sentencing is an exercise of discretion by the trial court. In the case of Benard Kimani Gacheru vs Republic (2002) e KLR the Court of Appeal rendered itself thus:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
From the foregoing decision of the Court of Appeal, the appellate court will only interfere with the sentence if the same is either manifestly high/excessive or low/lenient depending on the circumstances of each case.
In this case there is no dispute that the respondents were charged with the offence of grievous harm contrary to Section 234 of the Penal Code. That section provides that:
“Any person who unlawfully does grievous harm to another is guilty of a felony and liable to imprisonment for life.”
It is clear from the foregoing section which creates the offence of grievous harm that the sentence provide for is life imprisonment. Of course, the trial court has discretion on the sentence to be meted. It is also trite that in exercising the said discretion, the trial court must take into consideration factors relating to the offence like nature and gravity of the offence, extent of injury suffered by the victim, the manner in which the offence was committed and the impact on the victim. At the same time the court must consider the mitigating factors by the offender, whether the offender has previous record, age of the offender and prospects of rehabilitation. In doing so the court must also consider the objective of sentencing like deterrence, protection of the society and rehabilitation of the offender.
In meting the sentence, the court considered the probation officers reports in respect of the respondents. The reports which were filed in court and are in the original record of the trial court showed that the respondents were aged 19 and 22 years respectively. The reports also indicate the circumstances of the offence. The 1 st respondent is said to have committed the offence because he was enraged with anger because the complainant had punished one of his friends. The 2 nd respondent was under the influence of alcohol. The reports also indicates that the complainant and the respondents are distant relatives. It is also from the evident that the respondents were first offenders. Much as the complainant sustained serious injury, the circumstances of the offence as indicated in the pre-sentence reports do not call for this court to interfere with the discretion of the trial court in meting the sentence.
In the circumstances I find the appeal herein not merited and the same is dismissed. The sentence meted by the trial court is hereby upheld.
Dated, signed and delivered virtually this 9 th day of July, 2026
F.N Kyambia
Judge
In the presence of:
Appellant represented by Ms. Mutua
Respondents absent
Court Assistant Ms. Otwo
2
The respondents were charged with the offence of grievous harm contrary to Section 234 of the Penal Code. It was alleged that on the 24 th day of September, 2022 at Mwanzai village, Jibana location, Kaloleni Sub County in Kilifi County with others not before court did grievous harm to Anderson Tsuma.
The appellants pleaded not guilty to the charges when they were arraigned before the court. The prosecution called three witnesses to prove the charges against the respondents. The respondents in their defence gave sworn statement and di not call any witnesses. In a judgment delivered on 8 th June, 2022 the trial magistrate found the respondents guilty of the offence of grievous harm and sentenced them to pay a fine of Kshs. 100,000/= each in default to serve two (2) years imprisonment.
The appellant was aggrieved by the sentence imposed by the trial court upon the respondents by the trial court and preferred this appeal raising two grounds to wit:
1. That the learned trial magistrate erred in law by sentencing the respondents to pay a fine of Kshs. 100,000/= in default to serve two (2) years imprisonment without taking into account the aggravating circumstances in this case being that the victim has constant headaches and has memory lapses as a result of the act;
2. THAT the learned trial magistrate erred in law by sentencing the respondents to pay a fine of Kshs. 100,000/= in default to serve two (2) years, a sentence that was too lenient in the circumstances.
The prosecution case was based on the evidence of three witnesses. The complainant who testified as PW1 told the court that on 24 th September, 2022 at around 4pm he had attended a funeral in Chonyi. He was with Omar. While at the funeral he was called by Japheth Chiro the owner of motorcycle he was using to take him to Kichinjoni. On their way to Kichinjoni they encountered young men armed with crude weapons who attacked them. He was seriously injured. He said he was able to identify the respondents as among the attackers. He was examined by PW1 who noted the injuries the complainant sustained. PW1 concluded that the injuries amounted to grievous harm. PW3 who took over the investigations from PC Tsuma confirmed that the matter was reported at Kaloleni police station on 24 th September, 2022. He also confirmed that the P3 Form was filled and the degree of injury was confirmed to be grievous harm. He also confirmed that the investigating officer visited the scene. He also told the court that the complainant was able to identify the respondents as among the assailants.
The respondents in their defence raised a defence of alibi stating that on the material date they were not at the scene of the crime. The 1 st respondent did not recall the events of the alleged date of the offence. He told the court that he was arrested on 10 th October, 2022 while in his house and told that he had assaulted the complainant. He denied committing the offence. The 2 nd r4spondent on his part he said on the material date he was in Mtwapa where he had been called by Toyota. He said he was surprised to be arrested on 10 th October, 2022 on allegation that he assaulted the complainant. He denied committing the offence as alleged.
The trial court found the respondents guilty and sentenced them to pay a fine of Kshs. 100,000/= in default to serve two years imprisonment.
The appeal was canvassed by way of written submissions. The record shows that it is only the appellant who filed written submissions. The respondents though served with the appeal and the subsequent mention dates they did not appear or file submissions in opposition to the appeal.
In its submissions the appellant termed the sentence as illegal, irregular and improper. The appellant referred to the sentence sustained by the complainant and argued that the sentence was too lenient. Reference has been made to the provision of Section 234 of the Penal Code which provides for life imprisonment for the offence of grievous harm. Reference was further made to the case of Alister Anthony Pareria vs State of Maharashtra (2012) S.C.C 648 where the Supreme Court of India rendered itself thus:
“Sentencing is an important task in the matter’s crime. One of the prime objectives of criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and manner in which the crime is done. There is no straightforward formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.”
It was argued that in the instant case the appellant submitted that the complainant narrated how he was attacked leading to the injuries he sustained facts which the respondents did not controvert in their defence.
Further the appellant made reference to Section 4 of the Penal Code on what grievous harm is and argued that owing to the circumstances under which the offence was committed, there was need for a deterrence sentence. Further reference was made to the case of Musyimi Ndava vs Republic (2019) e KLR where a sentence of 35 years was upheld in a case of grievous harm.
I have considered the submissions by the appellant. It is trite that sentencing is an exercise of discretion by the trial court. In the case of Benard Kimani Gacheru vs Republic (2002) e KLR the Court of Appeal rendered itself thus:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
From the foregoing decision of the Court of Appeal, the appellate court will only interfere with the sentence if the same is either manifestly high/excessive or low/lenient depending on the circumstances of each case.
In this case there is no dispute that the respondents were charged with the offence of grievous harm contrary to Section 234 of the Penal Code. That section provides that:
“Any person who unlawfully does grievous harm to another is guilty of a felony and liable to imprisonment for life.”
It is clear from the foregoing section which creates the offence of grievous harm that the sentence provide for is life imprisonment. Of course, the trial court has discretion on the sentence to be meted. It is also trite that in exercising the said discretion, the trial court must take into consideration factors relating to the offence like nature and gravity of the offence, extent of injury suffered by the victim, the manner in which the offence was committed and the impact on the victim. At the same time the court must consider the mitigating factors by the offender, whether the offender has previous record, age of the offender and prospects of rehabilitation. In doing so the court must also consider the objective of sentencing like deterrence, protection of the society and rehabilitation of the offender.
In meting the sentence, the court considered the probation officers reports in respect of the respondents. The reports which were filed in court and are in the original record of the trial court showed that the respondents were aged 19 and 22 years respectively. The reports also indicate the circumstances of the offence. The 1 st respondent is said to have committed the offence because he was enraged with anger because the complainant had punished one of his friends. The 2 nd respondent was under the influence of alcohol. The reports also indicates that the complainant and the respondents are distant relatives. It is also from the evident that the respondents were first offenders. Much as the complainant sustained serious injury, the circumstances of the offence as indicated in the pre-sentence reports do not call for this court to interfere with the discretion of the trial court in meting the sentence.
In the circumstances I find the appeal herein not merited and the same is dismissed. The sentence meted by the trial court is hereby upheld.
Dated, signed and delivered virtually this 9 th day of July, 2026
F.N Kyambia
Judge
In the presence of:
Appellant represented by Ms. Mutua
Respondents absent
Court Assistant Ms. Otwo
2