Salim v Republic [2023] KEHC 24624 (KLR)

Salim v Republic (Criminal Appeal (Application) E027 of 2022) [2023] KEHC 24624 (KLR) (1 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24624 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal (Application) E027 of 2022

SM Githinji, J

November 1, 2023

Between

Ahmed Said Salim

Appellant

and

Republic

Respondent

Judgment

1. Ahmed Said Salim was charged in the first count with the offence of grievous harm, contrary to section 234 of the Penal Code.

2. The particulars of this offence are that on the 27th day of April 2022 at around 0700 hours in Manda Maweni area of Shella Location in Lamu Central Sub-County within Lamu County, the appellant unlawfully did grievous harm to Mohamed Hamisi.

3. The second count was of going armed in public, contrary to section 88 of the Penal code.

4. The particulars hereof are that on 27th day of April 2022 at around 0700 hours in Manda Maweni area of Shella location in Lamu Central Sub-County within Lamu County, the appellant without lawful excuse went armed with a panga in the above named area in such a manner to cause fear to the residents living there.

5. There was a 3rd count of failing to apply to be registered as a Kenyan citizen contrary to section 14(1) of the Registration of Persons Act Cap 107 Laws of Kenya.

6. The particulars of this offence being that on the 27th day of April, 2022 at around 12:50 hours in Lamu Police Station Langoni Location in Lamu Central Sub-County within Lamu county. The appellant being a Kenyan citizen of over 18 years of age, failed to apply to be registered as a Kenyan citizen.

7. The prosecution case is that the complainant and the appellant in this case were friends and neighbours at Manda. The two used to go for casual jobs together. In the morning of 24/4/2022 the complainant woke up and went to the appellant’s house so as to go for work together. The complainant found the appellant at the entrance to his home, armed with a panga. Surprisingly, and for no apparent reason the appellant attacked on the complainant using the said panga. He threw it at the complainant who stepped aside and tried to parry it. It however caught him on the left hand, causing a 5cm long and 1. 5cm deep cut wound. The complainant ran towards home and fell within the home compound. PW5 who’s his sisters saw him and called for help. The mother who gave evidence as PW4 got outside and noted the complainant had been injured. PW6 was called. He witnessed how the complainant was. Complainant said he had been cut by Isaka, the name which the accused was known by in the village.

8. Complainant was placed in a hard cart and taken to a boat which rushed him to King Fahd Hospital. The matter was also reported at Maweni police patrol base. Later the appellant appeared there armed with a panga. He surrendered to PW7. He was disarmed, arrested and taken to Lamu police station.

9. Complainant was examined and treated. He had tendon injury and was stitched for repair. The P3 form was filled in which the degree of injury was assessed as grievous harm.

10. PW8 investigated the case and had the appellant charged with the offences in the charge sheet.

11. The appellant in his defence stated that he is a fisherman. He denied knowledge of the complainant. He however alleged on 27/4/2022 the complainant and his friend attacked him at night. It was at 5. 00am. He pushed the door and one of them fell down. He managed to escape into the forest. When he returned he found a panga on the door. He took it to the police post. It was alleged the complainant had made a report against him. He was arrested. He produced an identification card to show he’s registered.

12. The trial court in its judgment evaluated the evidence and found the offence in count one established by the prosecution beyond reasonable doubt. The appellant was convicted of it and sentenced to serve 7 years imprisonment. However, on the other two counts he was acquitted for lack of enough evidence.

13. Dissatisfied with the 7 years custodial sentence, the appellant brought up this appeal on the grounds that:-1. He is remorseful and regrets the circumstances which led him to commit the offence.2. He is the sole breadwinner for his family and his ailing parents.3. The sentence imposed against him is too harsh.

14. The appeal was canvassed by way of written submissions.

15. I have considered the offence, the circumstances under which it was committed and the mitigation offered in the lower court.

16. I do agree with the trial court that the offence of grievous harm carries a maximum of life imprisonment.

17. However, the court has discretion after weighing the circumstances to impose any other sentence which will meet the ends of justice. The appellant and the complainant were friends. Both were young men and had worked together. The evidence reveals the appellant could have been drunk so as to attack the complainant for no apparent reason. He surrendered himself to the police with the panga. He’s also a first offender. In my view given the circumstances a sentence of 5 years imprisonment would have been more appropriate. I therefore reduce the 7 years sentence to 5 years imprisonment to run as indicated by the trial court, from the date of arrest. To the said extent the appeal succeeds.

JUDGMENT DATED SIGNED AND DELIVERED VIRTUALLY AT GARSEN THIS 1ST DAY OF NOVEMBER 2023HON. MR. JUSTICE S. GITHINJIJUDGEIn the presence of:Appellant: in Manyani PrisonProsecution Counsel: A. Mkonga