Republic v M’Kailemia & another [2022] KEHC 10190 (KLR)

Republic v M’Kailemia & another (Criminal Appeal E010 of 2020) [2022] KEHC 10190 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10190 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E010 of 2020

EM Muriithi, J

July 7, 2022

Between

Republic

Appellant

and

Adriano Mutura M’Kailemia

1st Respondent

David Kairithia Ncebore

2nd Respondent

(Appeal against the conviction and sentence by Hon G. Sogomo PM in Tigania PM Criminal case No. 1221 of 2017 delivered on 17/09/2020)

Judgment

Introduction 1. Adriano Mutura M’Kalemia and David Kairithia Ncebore (the 2nd and 3rd accused persons in the trial court) and the respondents herein, were jointly charged with others with several offences of forcible entry, cutting down crops, malicious damage to property, grievous harm and assault causing actual bodily harm in 9 related counts, as follows:1. Count I: Forcible entry contrary to section 90 of the Penal Code. It was alleged that on 17th day of February 2017 at Amugaa location in Tigania East sub-county within Meru County, in order to take possession of a land portion measuring 4 acres thereof, jointly with others not before court entered on the Land Parcel No.2109 Ankamia Adjudication Section of John Kubai Kailibi in a violent manner.2. Count II: Cutting down crops of cultivated produce contrary to section 334(a)(c) of the Penal Code. The particulars were that on the same day and place, jointly with others not before court did cut down 8 Mature coffee trees, 60 Tea bushes, 2 avocado fruit trees, 22 banana plants, 16 indigenous trees, 2 grieve lea trees, 2 fodder trees, 2400 tea bushes from F/NO. 3631 all valued at Ksh. 49,969 the property of Catherine Kaliuntu.3. Count III. Malicious damage to property contrary to section 339(1) of the Penal Code. The particulars were that on the said date and place, jointly with others not before court wilfully and unlawfully damaged Two timber houses valued at Ksh. 100,000 the property of Catherine Kaliuntu.4. Count IV: Cutting down crops of cultivated produce contrary to section 334(a)(c) of the Penal Code. The particulars were that on the same day and place, jointly with others not before court did cut down 31 Tea bushes, 4500 tea bushes harvested from F/NO. 3658 all valued at Ksh. 17,855 the property of David Kabuine.5. Count V: Cutting down crops of cultivated produce contrary to section 334(a)(c) of the Penal Code. The particulars were that on the same day and place, jointly with others not before court did cut down 7 grieve lea, 3 indigenous trees, 1 mango fruit tree, 3 banana plants and 3,000 tea bushes harvested from F/NO. 5322 all valued at Ksh. 29,537 the property of Paul Mugaa.6. Count VI: Cutting down crops of cultivated produce contrary to section 334(a)(c) of the Penal Code. The particulars were that on the said date and place, jointly with others not before court did cut down 6 Medium fodder trees, 2 avocado fruit trees, 5 indigenous trees, 9 tea bushes, 2 coffee bushes, 3500 tea bushes harvested from F/NO. 5323 all valued at Ksh. 33,175 the property of John Kubai.7. Count VII: Grievous harm contrary to section 234 of the Penal Code. The particulars were that the 2nd respondent on the material day and place, he unlawfully did grievous harm to Gilbert Kamenchu Kailithi.8. Count VIII: Assault causing actual bodily harm contrary to section 251 of the Penal Code. It was alleged that on the same day and place, the 2nd respondent wilfully and unlawfully assaulted Mutembei Amos Gilbert thereby occasioning him actual bodily harm.9. COUNT IX: Assault causing actual bodily harm contrary to section 251 of the Penal Code. It was alleged that on the same day and place, the 1st respondent and another wilfully and unlawfully assaulted David Kabuaine Kailibi thereby occasioning him actual bodily harm.

2. The respondents/ accused persons denied the charges and after a full trial, they were all acquitted under Section 215 of the Criminal Procedure Code on all the respective charges facing each of them.

The Appeal by DPP 3. The appellant now partially appeals to this court from acquittals with respect to counts 7, 8 and 9 on the following grounds:1. That the learned trial magistrate erred in law and fact by failing to consider the evidence adduced with regard to offences of assault.2. That the learned trial magistrate erred in law and fact by paying attention to remote, flimsy and irrelevant issues to acquit the respondent of the offences of assault.3. That the learned trial magistrate erred in law and fact by acquitting the respondent in failing to consider the merits of the evidence of the prosecution which was consistent and well corroborated.4. That the learned trial magistrate erred in law and fact by acquitting the respondents on the said counts when there was sufficient, safe and corroborated evidence to warrant a conviction.5. That the learned magistrate erred in law in failing to find that the prosecution had discharged its duty of proving that the complainants had indeed been assaulted and proved its case beyond reasonable doubt as required by law to so do.6. That the judgement of the trial court is against the weight of evidence adduced and the same is bad in law.

Submissions 4. The appellant and the respondents filed their submissions on 1/10/2021 and 16/11/2021, respectively. The appellant faulted the trial court for non-compliance with the law as set out under section 168 of the Criminal Procedure Code when it failed to state the offence and the reason for acquittal of the respondents in counts 7, 8 and 9. It faulted the trial court for failing to make a decision on the offences of grievous harm and assault despite the fact that the prosecution proved its case beyond reasonable doubt, and relied on the Court of Appeal cases of John Oketch Abongo v Republic (2000) eKLR and Joseph Mahende v Republic (2019) eKLR. It urged the court to find that the appellant proved all the ingredients of assault and grievous harm beyond reasonable doubt, find the respondents guilty and sentence them accordingly. It also relied on Muthaura Kaura v Republic(2019)eKLR and Alex Kinyua Murakaru v Republic(2015)eKLR to support its submissions.

5. The respondents submitted that the trial court considered both the evidence of the complainants and the accused persons before reaching its decision. After wondering why the family members who were with PW4 were not called to testify, they urged the court to dismiss the appeal and uphold the trial court’s decision.

Duty of first appellate Court 6. This Court, being the first appellate court is aware of its duty to evaluate the entire evidence on record bearing in mind that it had no advantage of seeing the witnesses testify and watch their demeanor. (see Okeno v R (1972) EA 32).

7. The issue for determination is whether the prosecution proved its case against the Respondents on Counts Nos. 7, 8 and 9 under appeal,

Evidence 8. Since there were several complainants in this case, I will only reproduce the testimonies of the witnesses whose evidence is directly linked to the respondents.

9. PW2 Catherine Kaliuntu Baario testified that“….Gilbert Kamenchu, George Kubai, David Kabuine and Amos Mutembei were cut in the altercation. The person I saw cutting the victims was the 2nd accused who cut Kamenchu with a machete. There were others who witnessed the incident.”

10. PW3 David Kabuine testified that, “….I rushed back home and met George Kamui, Andriano Mutura, John Kirimi, Mwongera and Triposa in my estate picking my tea leaves......They also cut me on the head with a machete. It is Adriano who cut me and Mwongera hit me with a stone on the leg.”

11. PW4 Gilbert Kamenchu Kailili testified that, “On 17th February 2017, I recall at around 9. 00 am, I was home with my family members including Stanley, Mbaaba David, Kabuaine, Catherine Kaliuntu, John Kubai and others when a group of people including Adriano Mutura, George Kamui, David Kairithia, Jonah, Kauti, Mwonjaru and others stormed our tea farm while armed with slashers, clubs and machetes while carrying tea harvesting baskets…..During the incident David cut me with a slasher on the right hand. David Kabuine was cut on the head by Mutura and Kauti then hit him on the pelvis with a stone….When my son intervened to stop David from finishing me off as I lay on the ground David cut him on the hand as my son Mutembei sought to disarm him.”

12. On cross examination, he stated that,”….it is only David who assaulted me. The others molested other family members.”

13. PW6 Mutembei Amos Gilbert, testified that, “I rushed to my Amugaa home and found a multitude of people and a fight had ensued. I saw David Kairithia slashing my father Gilbert Kamenchu’s left hand with a C-line machete. He hit him a second time on the back as my father lay on the ground. I picked a club and blocked the third blow on my father and David’s machete fell down. He managed to cut my 5 fingers of the left hands. Other family members intervened and we over powered the attackers who then fled.”

14. On cross examination, he stated that, “…..The 3rd accused was attacking my father with a machete when I arrived. The rest were equally armed with machetes clubs and slashers.”

15. PW7 Stanley Buamba, stated on cross examination that, “…I saw the 3rd accused cutting Gilbert Kamenchu with a machete. I saw the 2nd accused hit David Kabuaine with a stone. The others were armed with machetes and clubs and they were felling trees and picking the leaves.”

16. PW9 Martha Njeri Murumba, a clinical officer at Mikinduri sub county hospital testified that Gilbert (Kamenchu) PW4 “had a deep cut would on the left forearm below elbow joint involving bone around the elbow joint posterior aspect causing limited movement of the limb. A sharp object was used to inflict the injury. The patient was placed on anti-tetanus toxoid and his wounds were sutured. A plate was inserted and he was put on analgesics. The degree of injury was harm. As at the time of filling the P3 form on 2nd March 2017, the injury was 13 days old. I relied on the treatment notes from Kiirua Mission Hospital and an X ray report.”

17. As regards Mutembei Amos Gilbert, PW9 said he “had a lacerated wound on the occipital aspect of his scalps, a deep cut wound on his left thumb, a cut wound on the left palm. The degree of injury was assessed as harm. The patient was sutured for his wounds and put on antibiotics and anaelgestics. The probable weapon used to inflict the injuries was sharp. The injuries were classified as harm. As at the time of filling the P3 form on 28th February 2017 the injuries were 11 days old and I wish to produce the document.”

18. PW9 said that David Kabuaine had “a deep cut wound on the occipital area with profuse bleeding. A sharp object had caused the injuries which were sutured and the patient put on antibiotics analgestics and anti-tetanus toxoid. The injuries were 9 days old as at when I filled the P3 form on 26th February 2017. The injuries were classified as harm and I wish to produce the P3 form.”

19. The P3 forms for PW4 Gilbert Kamenchu, PW6 Mutembei Amos Gilbert and PW3 David Kabuine were produced as exhibits in court. On cross examination, he stated that, “For Gilbert the degree of injury was grievous and I relied on primary documents from Kiirua Mission Hospital. As regards Amos I relied on treatment notes but I have not produced them before court I gave them back to the patient. Even in the absence of primary documents as a medic I am in a position of assessing a patient’s injuries from visual observation of the scars and wounds.”

20. On re-examination, PW9 stated that, “In addition to the medical documents a patient presents to me I also conduct a physical examination of patients. The injuries on the complaints corresponded with the injuries on treatment notes that they presented.”

21. PW11 Cpl. Andrew Odeyo the investigating officer testified during cross examination that, “I am aware that, some of the reportees in this case were charged in a criminal case which is pending before court 2 at the moment. The said reportees are John Kubai, Gilbert Kamenchu and David Kabuine who were charged in criminal case No. 1929 of 2015 with the offence of malicious damaged. The reportees were charged before the events of the instant case over a portion of land the subject hereof…. I visited the scene with Corpl. Kiome. There were no boundaries marking the 4 acres of hived land when I visited the scene physically.”

22. On re-examination, he stated that, “The existence of a criminal case against the reportees did not bar me from investigating the suspects in this case.”

23. In his sworn defence, the 1st respondent, Adriano Mutura testified that, “on 17th April 2017 Gilbert Kamenchu arrived at my home to notify me of a family meeting the same day. He told me not to attend the event as area manager since the agenda would be private. At around 10. 00 am that day I saw Gilbert’s family members enter a piece of land that they had a dispute over with John Kubai. They were moving in to case of tea pickers in the disputed land. I interceded to stop the violence and dissuaded Gilbert’s family members from attacking the tea pickers. As I went to talk to the tea pickers Gilbert’s family members alleged that I had sided with John’s family and they attacked me cutting my right hand which is now maimed. Good Samaritans rushed me to Mikinduri police station where I booked a report. Mysteriously the case was removed from Mikinduri to Muthara police station. The P3 from that had been issued to me was torn up by officers at Muthara police station. George Kamui’s daughter Monicah Karimi was cut on the head and the hand. 6 of the complainants in this case are siblings while Gilbert is their cousin. John Kamui was the true owner of the disputed land having been awarded the property by the DLASO Ankamia……Many people were injured from both sides during the altercation.”

24. On cross examination, he stated that, “I confirm that my co-Accused and I also fought back when were attacked by Gilbert’s family members.”

25. The 2nd respondent, David Kairithia Ncebere testified that, “My wife is a daughter of John Kamui and I had ferried her aboard my motor cycle to assist her father to pick tea in his farm. When I got to the land I heard screams and I took photographs of the assailants using my cellphone. The assailants chased me off the land and I escaped. The assailants plotted to frame me with this case because I took their photographs. The photograph is before court. The photograph shows that it is dated 18th July. The altercation shown in the photograph relate to this case and the date shown is one which I processed the photo. It is not true that I was the ring leader of the attack group. The Techno cellphone that I used to take the photographs is at home and it has since malfunctioned. Robert Kamenchu is shown in the photograph. He is the one on the ground.”

26. On cross examination, he stated that, “it is not true the Accused who fought but another group. I was not present when the fight started. I surrendered a copy of the photograph to the police but it was never produced as a prosecution exhibit.”

27. Jonah Kirimi Nguru the 4th Accused in the trial court stated on cross examination that, “I was a good Samaritan. I helped Karimi and Joyce by taking them to hospital. I was not amongst the combatants. I called a motorcycle rider via cellphone to rush the injured to the hospital. The complainant were among the combatants.”

28. DW7 Monica Karimi, testified that, “What I know about this case is that as I was picking tea leaves in my father George Kamui’s estate I saw a multitude pass by. My sister Rael Kanini and mother Joyce Kaara fled in fear of the group. The group accosted me and cut me on the right hand and the head with machetes. I lost consciousness momentarily. A short while later my husband David Kaibithia arrived and took a video of the assailants. I went to the police station and was given a P3 form which was filled in hospital. Copy of P3 form DEx 2. Gilbert Kamenchu and Mutembei Kamenchu are the ones who cut me. I did not identify the others in the group because I fell down unconscious.”

29. On cross examination, she stated that, “…The group that entered my father’s tea estate and attacked me were more than 10 but only 2 of them cut me. The 1st accused is my father while the 3rd accused is my husband. The others are family members. The people who cut me were never arrested and taken to court. The incident occurred on 17th February 2017 at around 10. 00 am.”

30. DW8 Rael Kanini testified that, “What I know is that the disputed land belongs to my father George Kamui. I was picking tea in the land at about 10. 00 am on 17th February 2017 and that is when a group of people descended into the farm. When I saw them I escaped. My sister Monica Karimi tripped and fell. That is when the invaders assaulted her. She was cut on the head and hand. I crossed the river but I then recrossed back to rescue Monica. As I picked a stick to fend off the attackers I was hit on the right with a club by Mutembei Gilbert. My mother Joyce Kaere George showed up and we picked Monica and took her to hospital. We reported the incident to police and I was issued with a P3 form which was filled in hospital. The people who attacked were the ones that were summoned instead of us.”

31. On cross examination, she stated that, “…It is not true that Monica sustained her injuries from the fall. She was cut with a machete. I saw the assault from across the nearby river. I did not see who cut Monica because the invaders were many. I reported Gilbert’s assault on me to the police. He was never arrested and charged before court. I was treated at Njeri’s clinic. We were picking tea in peace when we were attacked by a crowd of intruders.”

Analysis and Determination 32. The issue for determination is whether the respondents’ acquittal of the charges of grievous harm and assault was justified.

Determination 33. The burden of proof in criminal cases is always on the prosecution to prove its case beyond reasonable doubt (See Ramanlal Trambaklal Bhatt v Republic (1957) EA 332).

34. In relation to Count No. VII, for the 2nd respondent to have been convicted of the offence of doing grievous harm contrary to section 234 of the Penal Code, the prosecution had to prove beyond reasonable doubt the ingredients of grievous harm that –1. PW4 sustained grievous harm; the harm was caused unlawfully; and2. the 2nd respondent caused or participated in causing the grievous harm, as charged.

35. Grievous harm is defined under section 4 of the Penal Code to mean “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.”

36. PW9 stated that when she examined PW4, he had a lacerated wound on the occipital aspect of his scalps, a deep cut wound on his left thumb, a cut wound on the left palm, and the degree of injury from the P3 form was assessed as grievous harm.

37. From PW4’s documents from St. Theresa’s Mission Hospital-Kiirua, patient’s card Hills X-Ray services, the discharge summary and the receipts thereon, this court is convinced that indeed the injuries that PW4 suffered as indicated on the P3 form, which was filled some 13 days later, were the same as those noted by the medical personnel who attended to him hours after the injuries were occasioned in different medical facilities to wit Ebenezer Med Clinic (Mikinduri), St. Theresa’s Mission Hospital-Kiirua, St. John of God Hospital and Hills X-Ray services. It is clear that PW4 sustained grievous harm.

38. The next element was whether the injury sustained by PW4 was caused unlawfully. This means that the same was intentional and without legal justification or excuse. In his defence, the 2nd respondent testified that he was framed because he took photographs of the assailants using his cellphone. He even denied being either on the scene when the fight started or being the ring leader of the attack group.

39. PW4 testified that, “During the incident David cut me with a slasher on the right hand….When my son intervened to stop David from finishing me off as I lay on the ground David cut him on the hand as my son Mutembei sought to disarm him.” On cross examination, he stated that, “….It is only David who assaulted me.”

40. PW6 testified that, “…I saw David Kairithia slashing my father Gilbert Kamenchu’s left hand with a C-line machete. He hit him a second time on the back as my father lay on the ground. I picked a club and blocked the third blow on my father and David’s machete fell down. He managed to cut my 5 fingers of the left hand.” On re-examination, he stated that, “…The 3rd accused was attacking my father with a machete when I arrived.”

41. PW7 stated on cross examination that, “..I saw the 3rd accused cutting Gilbert Kamenchu with a machete.”

42. The Court finds that the prosecution proved beyond reasonable doubt that the injury of PW4 by the 2nd respondent was unlawful as it was occasioned by cuts with a machete with no lawful justification or cause. There was no evidence of compulsion in terms of section 16 of the penal Code or self-defence under section 17 of the penal Code or provocation as would excuse the assault by cutting, and the defence of bona fide claim of right under section 8 of the penal Code is, in any event, applicable only in offences against property not persons. On the participation of the 2nd respondent, the prosecution witnesses were able to place him and others at the scene on the material day. PW2 stated that, “…Out of the group I recognized George Kamui, Mutura and Mwongera (pointing at 1st, 2nd and 5th Accused respectively). The other accused were also present but the 3rd accused was unknown to me prior to the incident.” On cross examination, she stated that, “…All accused are my neighbours and I know them quite well.”

43. PW3 stated that, “…I rushed back home and met George Kamui, Andriano Mutura, John Kirimi, Mwongera and Triposa in my estate picking my tea leaves…..The intruders are seated there (pointing at all accused). They were known to me because they are my neighbours.”

44. PW4 told court that he was at home with his family when Adriano Mutura, George Kamui, David Kairithia, Jonah, Kauti, Mwonjaru and others stormed their tea farm while armed with slashers, clubs and machetes.

45. PW5 stated that, “I went to my farm at 1. 00 pm when I saw people I knew picking tea. They were George Kamui, Adriano Mutura, Kairithia, Mwongera and that lady (pointing at 1st, 2nd, 3rd, 4th, 5th and 6th accused respectively) ….All accused are my village mates who are well known to me.”

46. PW6 stated that, “….The assailants are George Kamui, Adriano Mutura, David Kairithia, Jonah Kirimi Mwongera and Mwongera all who are seated there (pointing at 1st,2nd,3rd,4th,5th & 6th Accused respectively) they are my neigbours and I knew them quite well….”

47. PW7 stated that, “…That is when I saw George Kamui, Adriano Mutura, Jonah Karimi and Douglas Mwongera (pointing at 1st, 2nd, 4th and 5th Accused in company of the 3 accused and 6th Accused. All of them are my neighbours and I know them quite well.”

48. The Court finds that the testimonies of the prosecution witnesses corroboratively and consistently placed the 2nd respondent at the scene of the crime. It thus follows that the prosecution proved beyond reasonable doubt that it was the 2nd respondent who caused grievous harm to PW4. PW4 and PW6 pointed to the 3rd accused as the one who cut PW4 on the hand with a slasher C-line machete an injury confirmed by the clinical PW9.

Assault causing actual bodily harm 49. Harm is defined under section 4 of the Penal Code to mean “any bodily hurt, disease or disorder whether permanent or temporary.” This court respectfully agrees with the definition of actual bodily harm in Alex Kinyua Murakaru v Republic [2015] eKLR (John M. Mativo J) as follows:“Thus, actual bodily injury is any physical injury to a person (which is not permanent), or psychiatric injury that is not merely emotions, fear or panic. To make out the offence, the prosecution must show that there has been an assault, and that the assault has resulted in actual bodily harm. There must be an intention to assault (mens rea) and the assault must have taken place (actus reus).”

50. PW9 testified that when she examined PW6, he had a lacerated cut wound on the occipital area with profuse bleeding and she classified the degree of injury as harm.

51. As regards the offence in Count No. IX, assault causing actual bodily harm, the 1st respondent testified that he was called to assist in resolving a dispute between the Gilbert’s family and that of John Kubai. The Gilbert’s family then attacked the tea pickers and when he tried to intervene, the complainants’ family attacked him, by cutting his right hand which was now maimed, on the allegation that he had sided with the family of John Kubai. Although he reported the matter to the police, he was issued with a P3 form which was subsequently torn by the police.

52. PW3 testified that, “…It is Adriano who cut me and Mwongera hit me with a stone on the leg.”

53. PW7 stated on cross examination that, “..I saw the 2nd accused hit David Kabuaine with a stone.”

54. The Court notes that majority of the prosecution witnesses are siblings being PW1, PW2, PW3, PW5 and PW7. PW4 was the father to PW6. From the evidence, the admitted facts are that the 1st accused person was given 4 acres of the disputed land by the AR committee. The 1st accused person then fenced off his property but PW1 removed the fence and the 1st accused person instituted criminal charges for malicious damage to property against PW1.

55. It was clear that at the core of this case is a land dispute between the complainants and the 1st accused person. However, the existence of the land dispute between PW4 and PW6’s family and that of the 1st accused person cannot be a justification for assault or grievous harm by the respondents.

56. The respondents are not alleging self-defence. No. Whereas the 2nd respondent blatantly denied being at the scene when the assaults allegedly took place. Indeed, the 1st respondent maintained that he was attacked by the family of PW4 and PW6 as he tried to stop the violence.

57. The evidence of PW4 and PW6 was corroborated by that of PW2, PW3, PW5 and PW6 who were all known to the respondents, as they were neighbours. The court, therefore, finds that the assault and grievous harm of PW3, PW6 and PW4 by the respondents was unlawful. In fact, the 1st accused person, who had a legitimate claim, and who would have been justified to pursue to defend his property, did not raise a finger at them. The defence under section 8 of the Penal Code is available only to “an offence relating to property” and not assault and grievous harm.

58. The court finds that the trial court erred in acquitting the respondents of counts 7, 8 and 9 when the prosecution had proved beyond reasonable that the respondents had indeed caused grievous harm and harm to PW3, PW4 and PW6. The powers of the High Court on an appeal from the acquittal are set out in section 354 (3) (c) of the Criminal Procedure Code as follows:“(c) In an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of re-hearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as the High Court may think fit.”

59. The respondents are guilty as charged and they are convicted for the offences in Counts Nos. VII, VIII and IX, subject of the appeal herein. This court deplores the rising cases both of simple and aggravated assault of the person including murder in the area, as is evident in the numerous cases on original jurisdiction and on appeals to the court, in circumstances of pretended pursuit of real or perceived right to property in land.

Orders 60. Accordingly, for the reasons set out above, this Court reverses the acquittal by the trial court of the respondents for the offences of grievous harm contrary to section 234 of the Penal Code and assault causing actual bodily harm contrary to 251 of the Penal Code as charged in Counts VII, VII and IX of the Amended Charge Sheet before the trial court.

61. In the interest of justice, so as not to deny the Respondents one level of appeal from the sentence and in promoting and giving effect to their constitutional right of review by a higher court with regard to the sentence in terms of Article 50 (2) (q) of the Constitution, this court will pursuant to section 354 (3) (b) of the Criminal Procedure Code remit the matter to the trial court for sentencing with the directions that the respondents are guilty for the offences of grievous harm and assault causing actual bodily respectively under section 234 and 251 of the Penal Code as charged under Counts VII, VIII and IX of the Amended Charge Sheet.

62. The trial court file will be remitted back to Tigania Law Courts for purposes of mitigation and sentencing by the trial court.

63. The matter shall be mentioned before the Principal Magistrate’s Court at Tigania on 14/7/2022 for directions as to the sentencing proceedings.

64. The Respondents are now upon conviction remanded at the Meru G.K. Prison, and a Production Order will issue for their presentation before the trial court on 14/7/2022. Order accordingly.

DATED AND DELIVERED ON THIS 7TH DAY OF JULY, 2022. EDWARD M. MURIITHIJUDGEAppearances:Ms. B Nandwa Prosecution Counsel for the DPP/Appellant.M/S J. O. Ondieki & CO. Advocates for the Respondent.