Mataiyan v Republic [2025] KEHC 7801 (KLR)

Mataiyan v Republic (Criminal Appeal 116 of 2024) [2025] KEHC 7801 (KLR) (3 June 2025) (Judgment)

Neutral citation: [2025] KEHC 7801 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 116 of 2024

DR Kavedza, J

June 3, 2025

Between

Elizabeth Mataiyan

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. D. Mutua (P.M) on 19th September 2024 at Kibera Chief Magistrate’s Court Criminal Case No. E1429 of 2023 Republic vs Elizabeth Matayan)

Judgment

1. The appellant was charged and after a full trial convicted for the following offences: Grievous Harm contrary to section 234 of the Penal Code; Assault causing actual bodily harm contrary to section 251 of the Penal Code and Malicious damage to property contrary to section 339(1) of the Penal Code. He was sentenced to serve ten (10) years imprisonment in Count I, to pay a fine of Kshs. 10,000 in default to serve 3 months imprisonment in counts II, and III.

2. Aggrieved, she filed the present appeal challenging her conviction and sentence. In her petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which she was convicted. She urged the court to quash her conviction and set aside the sentence imposed.

3. This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.

4. The prosecution’s case was as follows: PW1 Lindsay Soila testified that on 9th September 2023, at approximately 12:30 a.m., she was at her boyfriend's residence. They went out for drinks and, upon returning, the appellant allegedly approached, wielding a rungu, and struck her before banging on the window with the same object. PW1’s boyfriend, awakened by the commotion, attempted to intervene and was also struck by the appellant. PW1 sustained injuries from shattered glass while trying to wear her spectacles. She sought medical attention at Lang’ata Hospital, then Mbagathi Hospital, and subsequently Kenyatta Hospital, where she underwent surgery and was informed of the loss of sight in her left eye. She was discharged on 14th September 2023. Soila reported the incident to the police, providing the vehicle registration number KCE 152Q and photographic evidence. She identified the appellant, whom she knew prior to the incident, and stated that they had no personal relationship.

5. During cross-examination, PW1 described the Uber vehicle as white but could not recall its registration number. Upon re-examination, she confirmed that a police officer completed the P3 Form on her behalf.

6. PW2 Amos Andayi Omwenga testified that on the morning of 9th September 2023, after leaving work at 11:30 p.m., he parked his car outside his house and invited his girlfriend to join him. After consuming alcohol, he fell asleep between 2:15 a.m. and 3:00 a.m. He was awakened by Soila, who was damaging his car. When he attempted to intervene, the appellant allegedly struck him on the forehead with a stone, causing bleeding. Soila screamed, indicating that glass particles had entered her eye. PW2 sought assistance, and a passer-by helped jumpstart his car. He transported Soila to Lang'ata Hospital, then to Mbagathi Hospital, and finally to Kenyatta Hospital. He reported the matter to the police and provided photographs of the damaged vehicle, including shattered windows and windscreen. He presented a sales agreement for the vehicle (KCE 152Q) and repair receipts. Omwenga identified the appellant in court, stating they had been friends.

7. During cross-examination, PW2 admitted to being intoxicated and asleep until 3:00 a.m. He stated that the appellant arrived between 2:00 a.m. and 3:00 a.m. He did not produce the stone used in the assault and mentioned receiving three stitches but could not recall any other treatment.

8. PW3 Geoffrey Macharia a police officer from Lang’ata Police Station, testified that on 16 September 2023, he assisted in arresting the appellant at a bar on Naivasha Road, identified by one of the complainants. The appellant was booked under OB No. 51/16/9/2023.

9. Dr. Mariga, a police surgeon with five years of experience, produced three P3 Forms. PW1's P3 Form, dated 18 September 2023, indicated a ruptured left eye globe with foreign glass bodies and extensive lacerations, consistent with blunt trauma. He also referred to medical reports from Nairobi Hospital and Lang’ata Hospital. PW2's P3 Form, dated 14th September 2023, documented a forehead wound and right arm bruise, also consistent with blunt trauma.

10. During cross-examination, Dr. Mariga explained that a rupture involves fluid leakage from the eye, and lacerations are deep cuts exposing internal tissues. He classified PW1's injuries as grievous harm, noting their permanence and the necessity for surgical intervention.

11. PW5 PC Sophia Gitau the investigating officer, stated that on 9th September 2023, she was assigned to investigate the assault case involving Omwenga and Soila. She inspected PW2's damaged vehicle (KCE 152Q) and recovered items such as stones and sticks from the scene. Photographs and a certificate from the Directorate of Criminal Investigations were submitted as evidence. She also presented medical records for both complainants and a repair quotation for the vehicle amounting to Kshs. 12,000. During cross-examination, PC Gitau acknowledged not preparing the documents herself or meeting their authors. She did not conduct fingerprint analysis but confirmed visiting the crime scene, which was illuminated by streetlights at the time.

12. In her defence, the appellant testified that on 8th September 2023, her boyfriend informed her he would not visit that evening due to work commitments. Later, he called and requested her to meet him at their usual spot near a liquor store. Upon arrival around 1:00 a.m., she found PW2's car parked with the lights on. She approached and saw PW1 in the co-driver's seat and PW2 asleep in the driver's seat. After knocking on the window and receiving no response, she moved to the driver's side and woke PW2. A confrontation ensued, during which PW1 broke a glass bottle. The appellant claimed that PW2 pushed her, causing her to fall. In response, she picked up a stone and struck PW2 on the forehead. She denied injuring Soila and stated that she left the scene with assistance from a boda boda rider.

13. The appellant further testified that she was arrested on 16th September 2023 at her workplace by police officers accompanied by PW2. She claimed that she was coerced into signing a statement under threat of being denied bail. She admitted to damaging PW2's vehicle and paid Ksh. 7,000 for repairs. She maintained that she did not harm Soila and that any injuries Soila sustained were self-inflicted.

14. The appeal was canvassed by way of written submissions which have been duly considered.

15. In count I, the appellant was charged with the offence of grievous harm. The section of the law provides as follows:“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

16. The prosecution adduced medical evidence confirming that PW1, Lindsay Soila, sustained grievous harm. The P3 Form and medical reports from Lang'ata, Mbagathi, Kenyatta, and Nairobi Hospitals indicated a ruptured left eye globe, extensive lacerations, and the presence of glass particles, leading to permanent loss of sight in one eye. Dr. Kamau Mariga, a police surgeon, classified the injuries as grievous harm defined by their severity, permanence, and requirement for surgical intervention under anesthesia.

17. PW1 identified the appellant as the person who struck her with a rungu and shattered the window. The incident occurred in the early hours of 9/9/2023 and was corroborated by PW2, who witnessed the attack. The appellant admitted to throwing a stone and being at the scene. The medical findings and eyewitness accounts support the charge under section 234. The appellant’s conviction in Count I was therefore proper.

18. In count II, the appellant was convicted for the offence of Assault causing actual bodily harm contrary to section 251 of the Penal Code. It provides as follows:“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years."

19. The evidence against the appellant for assault causing actual bodily harm contrary to section 251 of the Penal Code is supported by multiple witness testimonies and medical documentation. On the night of 9 September 2023, PW1 and PW2 were attacked by the appellant. PW1 testified that the appellant struck her with a rungu and shattered a car window, causing the glass to enter her eye. She was treated at Lang'ata, Mbagathi, and Kenyatta Hospitals and later referred to Nairobi Hospital, where she underwent surgery. PW4, the police surgeon, confirmed the injury as a ruptured left eye globe with foreign body presence, categorised as grievous harm.

20. PW2 stated that the appellant hit him with a stone on the forehead, causing a laceration that required stitches. His injuries were documented in a P3 form dated 14 September 2023. The appellant, in her own testimony, admitted to throwing a stone at PW2 during a confrontation. The conduct satisfies all elements under section 251 namely, an unlawful assault resulting in actual bodily harm.

21. In count III the appellant was charged and convicted for the offence of malicious damage to property. Section 339(1) of the Penal Code (Cap. 63, Laws of Kenya) states:“Any person who willfully and unlawfully destroys or damages any property is guilty of an offence and is liable to imprisonment for five years.”

22. The prosecution presented evidence that the appellant willfully and unlawfully damaged a motor vehicle, registration number KCE 152Q, belonging to PW2, Amos Omwenga. PW2 testified that on the night of 9/9/2023, he was asleep inside the vehicle when he was awakened by the noise and found the appellant damaging the car. He witnessed the appellant hitting the windows and windscreen, resulting in shattered glass. Photographs of the damaged vehicle and a repair receipt were produced as exhibits.

23. A sale agreement confirmed ownership of the vehicle by PW2. The investigating officer, PW5, also testified to inspecting the vehicle and recovering stones and sticks from inside. The appellant admitted to throwing a stone into the vehicle. The totality of this evidence supports a charge of malicious damage to property under section 339(1) of the Penal Code. The appellant’s conviction by the trial court was therefore proper on Count III.

24. On sentence, the appellant was sentenced to ten (10) years imprisonment in Count I, and pay a fine of Kshs. 10,000 in counts II and III in default to serve three months imprisonment each. During sentencing, the trial court considered the aggravating circumstances of the case, the appellant's mitigation, and the fact that she was a first offender. The court exercised discretion and I therefore see no reason to interfere.

25. In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 3RD DAY OF JUNE 2025. .................................D. KAVEDZAJUDGEIn the presence of:Mbithi for the AppellantMutuma for the RespondentTonny Court Assistant.