Mueni v Republic [2022] KEHC 14076 (KLR)

Mueni v Republic (Criminal Appeal E076 of 2021) [2022] KEHC 14076 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14076 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E076 of 2021

MW Muigai, J

October 6, 2022

Between

Joram Kyalo Mueni

Appellant

and

Republic

Respondent

(Being an Appeal from the original conviction and sentence of Hon.. H. Onkwani (PM) in Chief Magistrate’s Court at Mavoko in Criminal Case S. O. No. 8094 OF 2019 delivered on 14 TH September, 2021)

Judgment

Background 1. The Appellant herein Joram Kyalo Mueni was charged with the offence of causing Grievous Harm Contrary to Section 234 of the Penal Code. The particulars being that on the August 30, 2019 at Kinanie area in Athi River Sub- County within Machakos County, willfully and unlawfully did grievous harm to one Mwendwa Kalunde by stabbing him on the stomach and left hand with a sword thereby causing permanent injury.

2. The Appellant herein denied the charge and a Plea of not guilty entered on his behalf. The Appellant did not have any legal representation. The trial was conducted.

Evidence 3. The Prosecution called a total of five (5) witnesses in support of its case.

4. Mwendwa Kalunde PW1) told the Court that he is a mechanic and a resident of Kinanie. That on August 30, 2019 he went to Kyalo’s house to pick his CD’s and movies. Kyalo told the Appellant that the CD’s were lost and told him to wait for him. He later came out of the house and stabbed him on the stomach and then ran away. The Appellant shouted and there was a motor cycle passing by and he sought help and was rushed to Kinanie Dispensary. The injuries were severe and he was hospitalized at Shalom Hospital. The Appellant later reported the matter at Athi River Police Station and a P3 Form issued. He produced treatment notes from Shalom Hospital. The accused was the Caretaker of the plot the Appellant was staying. The accused had threatened the Appellant alleging that he was using him in a bad way. The Appellant had helped the accused to buy a motor cycle. They used to be good friends.

5. On cross-examination, the Appellant stated that he went to the Accused’s house at 9. 00 p.m and not at midnight. That the Appellant did not fight the accused. That the Appellant had statements that he had paid the balance for the motor cycle.

6. PW2 Samuel Odhiambo Oponyo told the Court that on August 30, 2019 at around midnight he was called by his wife and told that Sammy and Soweto were asking for him. When he met them they told him that Mwendwa had been stabbed. He assisted them with his Motor vehicle to take him to hospital. That Mwendwa had bled so much and at the hospital he saw that he had a stomach stab.

7. PW3 Joshua Sammy told the Court that he is a mechanic and resides at Kinanie. That on September 31, 2019 at around midnight he was in his house when one boda bora rider by the name Moses Kaloki came and informed him that his friend Mwendwa had been stabbed. He went to Kinanie and found Mwendwa had collapsed and had bled so much. He went to Odhiambo (PW2’s) place and sought for his motor vehicle and they took Mwendwa to the hospital.

8. PW4 Charles Mutuku, Clinical Officer at Athi River Health Centre operating under licence No 6828. He filled the P3 Form for Mwendwa Kalunde. He had a history of being stabbed by a sharp object. He was still bleeding at the time he was brought to the Hospital. He arrived at the hospital 30 minutes after being stabbed. X-ray was taken and the patient was taken to theater. He produced the P.3 form in respect of the patient one Mwendwa.

9. On cross -examination by the accused person he stated that the victim was stabbed at 10. 00 p.m. He used the treatment notes form shalom to fill the P3 Form.

10. PW5 No 77051 PC James Mutunga told the Court that he was based at Athi River police station. He was the investigating officer in this case. That on 31/08/2019 he was on duty with one Cpl Mweku when the OCS called them and assigned this case to investigate. It was about a victim who had been stabbed and was admitted at Shalom hospital. They went there around 4 p.m. and met the Complainant Mwendwa Kalunde. He had deep cuts in the stomach and the left hand was injured. They interrogated him and he told them that on the material dated August 30, 2019 at 10. 00 p.m. he went to the accused’s house to pick his items and the accused told him that he had lost the items whereby an argument ensued and the accused stabbed him in the stomach and on the hand. The Complainant was discharged from hospital on September 10, 2019 and went to the police station whereby he was issued with a P3 form and it was filled. That on September 13, 2019 he went to Kinanie in company of Sergeant Jackline and Cpl Ole Kapato and the Complainant identified the accused person and he was arrested and later charged.

11. On cross examination he stated that at the hospital the complainant had a bandage on the hand and stomach.

12. The Prosecution closed their case.

Trial Court’s Ruling on Case to Answer: 13. In its Ruling on case to answer dated February 2, 2021 the Trial Court found that the Accused person had a case to answer and was put on his defense.

Defense Evidence 14. The Accused person herein Joram Kyalo Mueni opted to make a sworn statement and did not call any witness. In his testimony he told the Court that he works at Kinanie as a welder. That on August 30, 2019 at midnight he heard something being thrown on his roof. The door was knocked and he opened somebody hit him. He saw a person holding something and he pushed the person and slipped and fell. He ran to his neighbour’s house and to ask for a trouser. He went to Kinanie and reported the matter to Sergeant Mwendwa. He slept at his neighbours’ house. On the following day one Odhiambo came and told him that Mwendwa had been stabbed. He was told to go to Shalom to check on him. He was later arrested and charged.

15. On cross – examination he denied stabbing the complainant. That he pushed the complainant and he fell down. That he did not talk to him. That Mwendwa knocked the door and pushed him out. That Mwendwa slapped him. He had no P3 Form to show the knife scratched him.

Trial Court Judgment 16. The Trial Court delivered its judgment on September 14, 2021 found the Accused person guilty of the offence as charged and after mitigation he was sentenced to life imprisonment.

Appeal 17. Aggrieved by the Judgment of the Trial Court, the Appellant filed his Memorandum of Appeal on November 12, 2021 based on the following grounds:-1. That the Learned Trial Magistrate erred in law by failing to observe that the prosecutions did not prove the elements of the offence beyond any reasonable doubt.2. That the Learned Trial Magistrate erred in law and fact by failing to inform the Appellant of his right to representation thereby convicting him on a trial that was procedurally unfair contrary to Article 50 of the Constitution.3. That the Learned Trial Magistrate erred in law and in fact by failing to note and find that the trial was procedurally unfair as Section 200 of the Criminal Procedure Code was not complied with.4. That the Learned Trial Magistrate erred in law and in fact by upholding conviction and sentence without observing that the entire prosecution witnesses were incredible and unreliable thus unworthy to be relied upon.5. That the Learned Trial Magistrate erred in law and fact in failing by failing to give his defence adequate consideration, and further failed to enact Section 169 (1) of the CPC while disowning his defense.

18. He prayed that the Appeal be allowed, conviction quashed and sentence set aside.

Submissions: 19. On March 21, 2022 both parties were directed by this Court to file their written submissions and the order was complied with accordingly.

Appellant’s Submissions Filed on May 17, 2022. 20. The Appellant pleads that the sentencing of life imprisonment by the Trial Magistrate was on the higher side and greatly unjustified in the circumstances.

21. In the case of Ahmad Abolfathi Mohammed & Anor v Republic [2016] eKLR the Court was able to sit on an appeal in which the Appellants had initially being charged and convicted to serve life sentence for committing an act intended to cause grievous harm. The Court held in part thus:-“This Court is of the view that taking into consideration the entire circumstance of this case, the sentence of life imprisonment imposed on the appellant was not justified. That sentence is set aside and substituted by a consolidated sentence of this Court sentencing the Appellant’s to each serve fifteen (15) years imprisonment. This Court has taken into consideration the period that the Appellants were in remand custody before they were convicted.”

22. Also in the case of Bernard ochieng Opiyo v Republic [2015] eKLR this:-“While the evidence is that the assault was deliberate and the resultant injuries serious, the sentence of 20 years imprisonment was on the higher side given the age of the accused, the fact that he was a first offender and that he was remorseful. I have also taken into account sentences imposed in similar circumstances and the need to ensure consistency in sentencing (see Steven Omondi v RepublicHB HCCRA No 93 of 2014 [2014] eKLR, John Kasya & Another v Republic MKS HCCRA No 169 & 182 of 2008 [2014] eKLR, Violet Mulayi v Republic KKG HCCRA No 115 of 2005[2007] eKLR). I therefore set aside the sentence and substitute it with a sentence of 5 years imprisonment.

23. The Appellant stated that he is a first offender and also is greatly remorseful for the offence that was committed and the harm that was ensued on the victim herein.

Respondent’s Submissions Dated 4th May, 2022. 24. It was submitted that the prosecution proved its case beyond reasonable doubt. That the Complainant went to the accused house to collect his items and the appellant stabbed him using a knife. He was properly identified by the complainant since they knew each other.

25. On the issue that the Court failed to inform the Appellant of his right to representation Section 50 (2)(g) to choose and be represented by, an advocate, and be informed to this right promptly.It is worth noting that the legal representation is not an inherent right available to an accused person under Section 50 of the Constitution.

26. On the issue that the Trial Court erred in upholding the prosecution case since the witnesses were incredible and unreliable the Prosecutor submitted that all the witnesses were reliable and their evidence was cogent and tangible. The testimony of PW1 was clearly corroborated by PW2, PW3, PW4 & PW5. The Prosecution availed direct evidence linking the Appellant to the offence.

27. On the issue of Trial Court failing to consider the Appellants’ defense at the Trial the Respondent stated that the Appellants defense was a mere denial of the offence. The testimony of the Appellant was not corroborated by any witnesses. The mere denial of the offence does not overshadow the overwhelming evidence of the prosecution.

28. On the issue of proof beyond reasonable doubt the Prosecution stated that the Trial Magistrate found that there was sufficient evidence implicating the appellant as the perpetrator of the offence.

29. On identification it was stated that the Appellant was properly identified by the PW1, as his friend. PW1 narrated to the Trial Court on how he went to the Appellant’s house to get his CD’s and movies. The Appellant informed him that they were lost but told him to wait. He got into the house and came out with a knife. He stabbed him on the stomach.

30. Reliance was made in the case of Wamunga v Republic [1989] KLR 424 where the Court of Appeal, held at page 426 that:-“It is trite law that where the only evidence against a defendant is evidence of identification on recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

31. In the case of Peter Musau Mwanzia v Republic [2008] eKLR the Court of Appeal expressed itself as follows;-“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification by a stranger. He must show, for example, that the suspect was known him for sometime, is a relative, a friend or somebody within the vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident. It is not clear whether that is what Mr. Mutuku refers to as basis of recognition.”

32. The Prosecution submitted that the conviction and sentence against the appellant is sufficient.

Determination 33. The Court has considered the Memorandum of Appeal , the Trial Court proceedings from the original record submissions by parties and the law and considers the following;The parameters within which the Court considers the appeal are well settled. This Court being the 1st Appellate Court is required by law to re-evaluate and analyze afresh the evidence presented during the Trial proceedings and reach an independent decision on whether or not to uphold the decision of the Trial Court. The Court is conscious as it carries out this exercise that it did not have the benefit of seeing or hearing the witnesses that testified before the Trial Court and hence should provide some allowance in the circumstances.In the often cited case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated on the duty of the Court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] EA 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] EA 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, [1958] EA 424. ”See also; M’Riungu v Republic [1983]e KLR 455. In the case of Selle v. Associated Motor Boat Co. [1968] EA 123 that delved into the issue of Court’s jurisdiction considered what entails an appeal as follows;“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

34. This Court in 1st appeal is dutybound to reevaluate all the evidence on record and arrive at its own conclusion. This was observed in the case of in the case of Peters v Sunday Post Limited [1958] EA 424 where it was held that:Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. ………….

35. The appellant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code and the definition of grievous harm provided by Section 4 of the Act which entails;"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 to any permanent or serious injury to any external or internal organ, membrane or sense;The Charge compared to mere assault is more serious, assault entails;"harm” means any bodily hurt, disease or disorder whether permanent or temporary.1)The Appellant raised the fact that the Prosecution failed to prove all ingredients of the offence beyond reasonable doubt. The ingredients of grievous harm include;a.The fact or proof maim or dangerous harm on the Complainant /victim [actus reus]b.The fact or proof of grievous harmc.Proof that the victim/complainant suffered grievous harm from the unlawful act of the Accused person and lastly;d.Proof that the unlawful was committed with malice aforethought by the Accused person/assailant [mens rea]

36. The Complainant Mwenda Kalondi testified in Court that on 30/8/2019 at 9. 30 pm he went to Kyalo’s house. He found him and asked for his CDs and movies. He told him they were lost and asked him to wait and he came out and stabbed him on the stomach. He sought help and was rushed to a nearby Dispensary. He bled profusely and collapsed and was rushed to Shalom Hospital.

37The evidence by PW1 confirms that the Complainant knew the Accused person/Appellant before the unfortunate evening when he stabbed him. PW1 went to the Accused’s house and saw and talked with him.The Appellant contests identification and/or recognition of the Complainant on the assailant who stabbed him that night.

38The factual analysis of the circumstances surrounding the issue of the identification of the Appellant herein, the Court takes legal guidance from the following case-law.

39In R v Turnbull & Others (1976) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court 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 with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? 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?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

40The Court of Appeal in the case of Wamunga v Republic (1989) KLR 426 stated as under;-It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”

41It was also held in Nzaro v Republic (1991) KAR 212 and Kiarie v Republic (1984) KLR 739 by the Court of Appeal that evidence of identification/recognition at night must be absolutely watertight to justify conviction.

42Applying these standards to the instant case; the Complainant went to the Accused house and when he opened the door they must have been in close proximity facing each other and talked to each other. There must have been light and the conversation took sufficient time for the victim PW1 to see and talk to and with the Accused.

43Secondly, the evidence on record strongly suggests the Complainant and the Appellant knew or met each other before the night of the incident. PW1 went to collect his CDs and movies from the Accused person at his house and during cross examination the Complainant confirmed he helped the Appellant buy and/or recover his motor cycle. These facts disclose prior knowledge, contact and interaction between the parties. The Complainant’s visit on the fateful night to the Appellant’s house, they knew each other well and therefore a case of mistaken identity is unlikely in the circumstances. This Court is satisfied that the Accused was properly recognized by the Complainant as the assailant on the fateful night.

44Secondly, the fact of grievous harm is established was by the evidence of PW2 who drove the Complainant to hospital on the same night 30/8/2019 and he saw that the Complainant was bleeding heavily and took him to Shalom Hospital.

45PW4 Clinical Officer from Athi River filled the P3 Form and confirmed that he had a deep cut wound on the abdomen and it was by a sharp object. He was taken X ray, Transfusion and taken to Theatre for exploration and stitching and medicine. The harm was classified as grievous harm.2)The Appellant pointed out that the evidence was unreliable contradictory and uncorroborated evidence. The Appellant alluded to the evidence by PW1 & PW3 being inconsistent.

46In Dickson Elia Nsamba ShaPWata & Another v. The Republic, Cr. App. No 92 OF 2007 the Court of Appeal of Tanzania stated;“In evaluating discrepancies, contradictions and omissions, 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 inconsistencies and contradictions are minor, or whether they go to the root of the matter.”Philip Nzaka Watu v Republic [2016] e KLR Court of Appeal held‘Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way’.

47The evidence by PW1, who was the key witness was corroborated by the evidence of PW4, proved grievous harm was caused by the Appellant to the Complainant. Therefore, the evidence of PW1 & PW2’s inconsistencies do not cast doubt of PW1’s evidence.

48The Appellant stated that PW2 & PW3 were not eye witnesses to the incident and their evidence was hearsay there was no other witness except PW1. Section 143 of Evidence Act provides for sufficiency of evidence based on a single witnesses’ testimony. The evidence by PW1 was cogent and tangible evidence as there was identification by recognition by PW13)The Appellant stated that the Trial Court failed by to give his defense adequate consideration, and further failed to comply with Section 169 (1) of the CPC while disowning his defense.

49The Appellant’s Defense is that he opened the door and he was hit and the person was holding something whom he pushed and he fell down. He ran away until the next day.

50The Trial Court considered the Accused person’s evidence and found it to be a mere denial. The other person he claimed as at the scene seems to have been seen only & known only to him, he did not disclose further details during trial and he did not sustain any injuries to confirm that it was him who was assaulted and not that he assaulted the Complainant. The Court finds the Defense failed to cast doubt on the Prosecution evidence.4)The Appellant submitted that the sentence of life imprisonment was/is harsh and excessive Section 234 Penal Code prescribes for the charge of grievous harm

51Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

52The Court finds that the charge upon which the Respondent was charged and convicted was proper as per the evidence tendered. The conviction was proper as per the law and sentence was as mandatory life imprisonment as prescribed by law. This court will look at legality and propriety of the sentence meted out against the Appellant and if it was/is harsh and excessive.

53It is important to note sentencing is both a matter of law and judicial discretion under Section 26 (2) of the Penal Code being a discretionary matter it must be exercised judicially which means a Trial Court must be guided by evidence and sound legal principles. In doing so the Court must consider all relevant factors in mitigation and exclude extraneous ones.

54The Judiciary Sentencing Guiding Principles is a Guide to Courts in factoring in principles underpinning the sentencing policy. The principles are;-i.Proportionality of the sentence to the offending behaviourii.Uniformity of sentence- similar offences should attract similar penalty/sanction.iii.Deterrence - A deterrent sentence to discourage or eliminate a vice in the community/societyiv.Retribution- Appropriate sentence to act as a punishment for wrong done to help the victim see that justice has been served.v.Transparency - consideration taken as to what sanction the law provides.

55It is now trite that an appellate court as a general principle would not normally intervene where a Trial Court has exercised its discretion unless a material fact has been overlooked, or it has considered an irrelevant factor or where a sentence is either too harsh or too lenient as to constitute an obvious error of principle(s) as enumerated by the law or the above cited guiding principles of sentencing.

56In the instant case, the evidence on record is that the assault was deliberate and the resultant injuries were serious. The victim PW1 suffered pain and anguish from the knife -stab to his stomach, he lost a lot of blood, was rushed to hospital and underwent operation and later recovery maimed for life. However, the sentence meted out was/is life imprisonment though mandatory is on the higher side. The Court record shows that the Appellant was a first offender as no previous records were availed by the ODPP.

57In the recent decision by Hon. J. Mativo J & Hon.Stephen Githinji J High Court Petitions 97 of 2021, Petition 88 of 2021 90 of 2021 & 57 of 2021 Constitutional & Judicial Review Mombasa High Court where the Court considered at length the constitutionality of mandatory and /or minimum sentences in sexual offences.

58Following the reasoning by Supreme Court in Muruatetu 1 & 2 with regard to mandatory death penalty with regard to the offence of murder, The Court found that sentencing is an integral part a fair trial prescribed by Article 50 CoK.

59The High Court considered Sections 216 & 329 of the Criminal Procedure Act make mitigation a part of the trial process and therefore minimum and /or mandatory sentences deprive the Courts of judicial discretion in sentencing and such law is harsh unjust and unfair. If a Court does not have discretion to take into consideration mitigating circumstances if possible and it may make the sentence wholly disproportionate.

60The Court also considered Court of Appeal decision of Dismus Wafula Kilwake v Republic [2019] eKLR which took the view with regard to sexual offences, that in appropriate cases, the Court freely exercising discretion in sentencing should be able to impose any of the sentences prescribed based on the circumstances of each case;

61Being so persuaded, we hold that the provisions of Section 8 of Sexual Offences Act must be interpreted so as not to take away the discretion of the Court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and society take offence of defilement. In appropriate cases therefore, the Court freely exercising its discretion in sentencing should be able to impose any of the sentences prescribed if the circumstances of the case so demand.

62This Court is persuaded by the reasoning on mandatory and/or minimum sentences imposed in murder and now sexual offences denies the Trial Court to consider appropriate sentence including the minimum and/or mandatory sentence if the circumstances merit the sentence.

63In the recent decision by Hon. J. Mativo J & Hon.Stephen Githinji J High Court Petitions 97 of 2021, Petition 88 of 2021 90 of 2021 & 57 of 2021 Constitutional & Judicial Review Mombasa High Court; Edwin Wachira & 9 Other Petitioners v Republic The Court declared that mandatory and/or minimum sentences remain the domain of the Trial Court based on the circumstances of each case; which this Court adopts and it is relevant to this case /circumstances with regard to the mandatory sentence of grievous harm of life imprisonment; as follows;a.’’A declaration be and is hereby issued that sentencing remains a discretionary power exercisable by the Court and involves the deliberation of appropriate sentence………b.………………………………………………………………………c.A declaration be and is hereby issued that sentence discretion is a vital element of our law of sentencing and at the heart of the discretion is the principle that each case should be treated on its own facts or merits and it is precisely for this reason that sentencing discretion lies with the Trial Court.d.………………………………………………………………………e.…………………………………………………………………………f.A declaration be and is hereby issued that sentencing discretion permits balanced and fair sentencing, which is a hall mark of enlightened criminal justice and the absence of this crucial discretion is potentially prejudicial to an accused person.’’

64The Court in the above- mentioned case also found that the mandatory /minimum sentences deprived the Appellants fair trial as mitigation is not considered and Trial Court’s discretion in sentencing is usurped. Similarly, in the instant appeal, this Court shall adopt the legal position by the litany of cases considered above but more particularly the cited decision of Petition 97 of 2021 in the instant appeal that focuses on the mandatory sentence of life imprisonment imposed for the offence of grievous harm.

65Where the Trial Court has to apply mandatory sentence as in this case prescribed by Section 234 of the Penal Code, the Court was/ is deprived of the opportunity to consider the Accused person’s mitigation and the totality of the circumstances of the case to mete out appropriate sentence. Sections 216 & 329 of the Criminal Procedure Act confirms mitigation is part and parcel of a fair hearing. The Trial Court in this case/trial was forced by the prescribed mandatory sentence to impose life imprisonment.

66The Court has considered sentence imposed in similar circumstances under the offence of grievous harm and the need to ensure consistency in sentencing.

67The Court record shows that the Appellant was a first offender as no previous records were availed by the ODPP. The P3 form is detailed as to the severity of the stab wound, treatment and recovery and taking into account the victim despite the unfortunate injury and threat of imminent death to his life he survived. This Court finds these extenuating and not aggravating circumstances to sentencing.

68This Court, therefore sets aside the mandatory life sentence for grievous harm and substitute it with a sentence of 10 years imprisonment.

69The sentence computation will consider the period served from date of plea-taking to sentencing if the Accused was in custody in compliance with Section 333(2) CPC.

70Accordingly, the conviction is affirmed. The sentence is reduced to 10 years imprisonment.

DELIVERED, DATED & SIGNED IN OPEN COURT IN MACHAKOS ON 6TH OCTOBER 2022. (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGE