Ombogo v Republic [2025] KEHC 4542 (KLR)

Ombogo v Republic (Criminal Appeal E058 of 2023) [2025] KEHC 4542 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4542 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Appeal E058 of 2023

WA Okwany, J

April 3, 2025

Between

Dennis Ombogo alias Toto

Appellant

and

Republic

Respondent

(Being an Appeal against the Judgment and Sentence at the Chief Magistrate’s Court in Nyamira, Criminal Case No. E204 of 2023, delivered by Hon. W.C. Waswa, Resident Magistrate on 1st March 2023)

Judgment

1. The Appellant herein was convicted for the offence of grievous harm contrary to Section 234 of the Penal Code.

2. The particulars of the offence were that on 27th July 2022 at Bokurati One Sub-location in Nyamira North Sub-county within Nyamira County, wilfully and unlawfully did grievous harm to Stephen Nyachiro Nyamongo.

3. The Appellant, was upon conviction, sentenced to pay a fine of Kshs. 100,000/= or in default, to serve six (6) years imprisonment.

4. Aggrieved by the conviction and sentence, the Appellant filed the instant appeal in which he listed the following grounds of appeal: -1. That I was totally black in the matters of law and its consequences thus asking for Purdon from this Hon. Court.2. That it was my first time to come into conflict with the law hence learned the lesson the hard way.3. That the altercation was between my closest friend who we differed and exchanged thus assaulting him. I am therefore asking this Hon. Court to consider me for a more lenient term or any order this court may deem fit and just.4. That I am ready to abide by any order this Hon. Court may deem fit and just.5. That I hail from a poverty dominated family thus unable to raise a fine of one hundred thousand (Kshs. 100,000/=) thus asking this Hon. Court to review the sentence of 6 years imprisonment meted upon me.6. That I was barely 18 years when I was arrested, with no knowledge on the doctrines of the law.7. That more grounds will be adduced during the hearing and determination of this appeal.

5. The appeal was canvassed by way of written submissions which I have considered.

6. The duty of the first appellate court is to re-analyse and re-evaluate the evidence presented before the trial court with a view to arriving at its own independent findings.

7. The prosecution presented the evidence of five (5) witnesses before the trial court.

8. A summary of the prosecution’s case was that the complainant (PW1) Stephen Nyachiro Nyamongo was on 27th July 2022 walking along the road in the company of his 2 cousins, namely: Amos Orwaru Nyandege (PW2) and Hassan Nyandege when the Appellant ambushed them and cut him all over the body with a slasher thereby leaving him lying on the ground for the dead. Good Samaritans came to the complainant’s rescue and rushed him to the hospital where he was treated.

9. PW3, NO. 111051 PC Paul Kimeto visited the complainant in hospital and noted that the complainant was so injured that he could not even record a statement. He issued the complainant with a P3 Form which was later filled by one Dr. Cynthia Machira. He produced the slasher that the Appellant used to assault the complainant as P Exhibit 3.

10. PW4, Mr. Bathlomeau Mogesi was the Clinical Officer who produced the complainant’s P3 Form and Treatment Notes on behalf of Dr. Cynthia as exhibits 1 and 2 respectively. He confirmed that the weapon used in the assault was sharp and that the complainant sustained injuries to the face, upper and lower limbs, fractures on the tibia and ulna, fracture on the face bones. She assessed the degree of injury as grievous harm.

11. PW5, NO. 116408 PC Solomon Mwirigi was at Magwagwa Police Station on 27th July 2022 when the Appellant presented himself at the station and informed him that he had assaulted the complainant using a slasher. He testified that the Appellant had a blood-stained slasher at the time he made the report and that he recovered the said slasher (P Exhibit 3) and detained the Appellant who was thereafter charged with the offence of causing grievous harm.

12. I have carefully considered the Record of Appel and the parties’ respective submissions. I find that the main issue for determination is whether the sentence imposed on the Appellant was just and legal. I say so because looking at the Appellant’s grounds of appeal, it is clear that he is mainly seeking this court’s leniency while arguing that he is a first offender and that he was not well-versed with the law at the time he appeared before the trial court. I find that even though the Appellant has not challenged the trial court’s decision on conviction, I am still minded to consider if the said conviction was safe.

13. I have perused the P3 Form that was produced as P Exhibit 1 and I note that it indicates that the complainant sustained the following injuries: - Injury on ear exposing the skull base.

Cut to the left lower eyelid extending to the nose.

Deep cuts to the scalp and back.

Deep cut wound with fracture of right radio ulna.

Deep cut wound to both lower limbs with fracture of the tibia & ulna.

14. PW5 testified that the Appellant surrendered by presenting himself to the police station where he also presented a blood-stained slasher and informed him that he had assaulted the complainant. PW5 testified as follows: -“On 27/7/2022 at 1930hrs, I was at the report office when I received a middle aged man who came to accused himself at the station. He told me he’d assaulted another person who had provoked him using a slasher. He had the slasher (bloodstained) with him.”

15. I am satisfied that the prosecution tendered overwhelming and uncontroverted evidence to support the charge of causing grievous harm.

16. I have considered the evidence presented by the Appellant, when placed on his defence, and I note that it consisted of mere denial that did not displace the compelling evidence by the prosecution witnesses. I therefore uphold the conviction by the trial court.

Sentence 17. Section 234 of the Penal provides that any person who unlawfully does grievous harm to another person is liable to imprisonment for life.

18. In the instant case, I have already noted that the Appellant was sentenced to pay a fine of Kshs. 100,000/= or in default to serve six (6) years imprisonment.

19. It is trite that an appellate court should not interfere with the sentence passed by the trial court unless it is shown that the sentence is manifestly excessive or was not based on sound legal principles.The principles upon which an Appellate Court acts when dealing with issues of sentence are now well settled. In Ogalo S/O Owuora vs. Republic (1954) 19 EACA, 270 it was held:-“The Court does not alter a sentence on the mere ground that if the member of the Court had been trying the Appellant, he might have passed a somewhat different sentence, and it would not ordinarily interfere with the discretion exercised by the trial Magistrate unless it is evident that the Magistrate acted upon some wrong principles or overlooked some material factors. (See also JAMES VS REPUBLIC (1950) 10 EACA 147)The trial criterion is that if the sentence is manifestly excessive in view of the circumstances of the case, the sentence will be disturbed. The Appellate Court should not interfere with the sentence of a lower Court unless it is satisfied that the same was so severe as to amount to a miscarriage of justice. (SEE NILSON VS REPUBLIC (1970) EA 599)”

20. Similarly, in the case of Wanjema vs. Republic (1971) EA 493, the Court stated thus:-“…….Appellate Court should not interfere with the discretion which a trial Court exercised as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case……”

21. The principle that can be derived from the above cited cases is that an Appellate Court will only interfere with the sentence passed by the subordinate Court when it is evident that:-(i).The trial Court exercised the discretion wrongly.(ii).The trial Court acted upon wrong principles.(iii).The sentence imposed is illegal(iv).The sentence imposed is so severe as to amount to a miscarriage of justice.

22. Having noted that the offence of grievous harm attracts a sentence of up to life imprisonment, I find that the sentence passed by the trial court was very lenient considering the extent of the injuries inflicted on the complainant and the that the Appellant attacked him without any provocation. I find no reason to interfere with the said sentence, but with a rider that the sentence period shall factor in and deduct the period, if any, that the Appellant spent in custody while awaiting his trial.

23. For the reasons that I have stated in this judgment, I find that this appeal is not merited and I therefore dismiss it.

24. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 3RDDAY OF APRIL 2025. W. A. OKWANYJUDGE