Paul Kingori Mwangi v Republic [2013] KEHC 1665 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL  APPEAL NO  58   OF 2012

PAUL  KINGORI MWANGI  ...….………...........................…APPELLANT

Versus

REPUBLIC …....................……….………......…….......…RESPONDENT

(arising from the judgment of  Hon. B.M.Kimtai, Resident

Magistrate in Nanyuki Criminal Case No.30 of 2012)

JUDGMENT

The appellant herein was charged with the offence of Causing Grievous Harm contrary to section 234 of the Penal Code.  The particulars of the offence were that on 10th day of July 2011 at Mitero village in Laikipia County within the Republic of Kenya unlawfully did grievous harm to DUNCAN MUREITHI GITAHI.

He pleaded not guilty and was tried convicted and sentenced to ten (10) years imprisonment.

Being aggrieved by the said conviction and sentence the appellant filed this appeal and in his home made grounds of appeal raised the following grounds:

(1)  The trial Magistrate erred in law and in fact by failing to observe that none of the prosecution witnesses was an eye witness.

(2)  No dagger was produced as an exhibit

(3)  The prosecution evidence  was based purely on hearsay

The ten (10) years sentence is rather excessive.

By a chamber summons filed on 26th February 2013  the appellant moved the court for an order that the applicant be allowed a fine in substitution of ten (10) years and was granted on the fact that the applicant has served almost one year in prison  and that the same is a first offender.

When this matter appeared before me Mr. Njue appeared for the State and the appellant appeared in person and the appellant submitted that he would like to abandon his appeal on conviction and have the sentence reversed by the court.

This being a first appeal the court is expected to reassess the evidence tendered before the trial court and to come to its own conclusion on the same.

Since this appeal is only on sentence it should be noted that the maximum sentence provided for under section 234 is life imprisonment whereas the appellant was sentenced to ten (10) years imprisonment.  However I have looked at the appellant's defence before the trial court where he stated that all he knows is that the  complainant sold him some liquor which he took and later proceeded home and slept and the following day he herd that the complainant had been stabbed.

I am therefore of the considered view that the defence of insanity due to intoxication should have been available to  the appellant herein.

I therefore allow the appeal on sentence and set aside  the sentence herein and substitute the same with a sentence of imprisonment for a period of five (5) years from the date of conviction.

Dated at Nyeri this 17th day of October 2013.

J. WAKIAGA

JUDGE

Read in open court in the presence of the above named.

J. WAKIAGA

JUDGE