Shano Gacho Biqe v Republic [2017] KEHC 6375 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CRIMINAL APPEAL  NO.30 OF 2016

SHANO GACHO BIQE...................................................APPELLANT

VERSUS

REPUBLIC...................................................................RESPONDENT

(From the original conviction and sentence in criminalcase No. 340

of 2016of theSenior Resident  Magistrate’s  Courtat  Marsabit

by  Hon. Boaz M. Ombewa –  Senior Resident Magistrate)

JUDGMENT

The appellant,SHANO GACHO BIQE, was convicted for the offence of  assault causing actual bodily harm contrary to section 251 of the Penal Code.

The particulars of the offence were that on 10th June  2016 atStage 44in Marsabit Central sub County of Marsabit County, he unlawfully assaulted ABDIKADIR ADANoccasioning him actual bodily harm.

He was sentenced to serve five years imprisonment. He has appealed against both conviction and sentence.

The appellant was in person. He  raised the following  grounds of appeal:

1. That the trial suffered procedural irregularities.

2. That the learned trial magistrate erred in law and in fact by convicting him without the  production of the weapon of the offence.

3. That the learned trial magistrate erred in law and in fact by convicting him on the basis of a single witness.

4. That the learned trial magistrate erred in law and in fact by convicting the appellant on the basis of doubtful, contradictory and inconsistent evidence.

The state  opposed the appeal through Mr. Chirchir, the learned counsel.

The facts of the prosecution case were briefly as follows:

Prior to the incident giving rise to this case, the complainant had just recorded a statement with the police against the appellant over an issue of malicious damage to property. The appellant found him at his place of work and  punched him on the nose. He told him that this was because he had recorded a statement against him.

The appellant denied any involvement in the offence.

This is a first appellate court.   As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.

I perused the record and I am satisfied that there was no procedural irregularities. This was just a statement made without any basis.

The evidence on record was very clear that the appellant used his fist to hit the complainant. It is cheeky on his part to demand that the weapon used in committing the offence to be produced.

It is trite law that a fact can be proved by the evidence of a single witness . This is subject to well known exceptions. This case does not fall under the exceptions. In KIILU & ANOTHER vs. REPUBLIC[2005] 1 KLR 174the Court of appeal observed:

Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness...

The complainant, Abdikadir  Adan (P.W 1) testified that after he had recorded a statement against the appellant in a malicious damage case, the latter found him at the Bus Stage and punched him on the nose. This was the gist of the evidence of Hassan Adan Jasso (P.W2). He confirmed the reason why the complainant was battered.

Dr. Sereti(P.W5) examined the complainant and established that when he was hit on the nose, he bit his tongue.

Though the appellant contended that he was convicted on the evidence of a single witness I find that this was not so. I also did not find any contradictions that were alleged to exist. He was convicted on the basis of sound evidence.

Though the appellant contended that he had no previous conviction, that was not true. He had other four previous  convictions  which were relevant. The convictions were between 2015 and 2016. The learned trial magistrate  cannot be faulted in meting out the sentence he did. The appellant has to deliberately and clearly depart from the criminal world for him to benefit from leniency of the court. I am not persuaded to interfere with the sentence meted by the learned trial magistrate.

In a nutshell, the appeal is dismissed.

DATEDatMarsabitthis19thday of April,  2017

KIARIE WAWERU KIARIE

JUDGE