Patrick Lifede v Republic

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7. Having looked at the Appellant’s Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:- 8. a. Whether or not the Trial Court lacked jurisdiction to hear and determine the case herein; b. Whether or not the Trial Court disregarded the Appellant’s mitigation. The court therefore dealt with the said issues under the following distinct and separate heads. I. Jurisdiction 9. Ground of Appeal No (1) of the Petition of Appeal was dealt with under this head. 10. The Appellant placed reliance on the case of Republic vs Inspector General of Police & 2 Others Ex Parte Boniface Nginyo Mwaura[2019]eKLR where it was held that while Section 72 of the Criminal Procedure Code gives direction as to the place of trial, constitutional provisions inform the requirement that the trial should be held at a venue which is easily accessible by the accused person and witnesses as they were the justification for the territorial limits of courts’ jurisdiction in criminal cases. 11. He further relied on the cases of Jamal Salim vs Yusuf Abdulahi Abdi & Another[2018]eKLR where it was held that jurisdiction either exists or not and cannot be granted by consent of parties and Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & Others[2012]eKLR where it was held that a court’s jurisdiction fiows from either the Constitution or legislation or both. 12. He argued that from the Trial Court record, the offence occurred at Igunga Area, Sabatia Sub-County, an area which was within Vihiga Law Courts’ territorial jurisdiction and not Hamisi Law Courts. He added that that could be attested from the evidence of both the complainant, MN (hereinafter referred to as “PW 1” and VK (hereinafter referred to as “PW 2”). 13. He asserted that he raised the issue with the Trial Court and complained that he was having dificulties getting transport from Igunga to the court. He contended that the Trial Court, therefore, arrogated itself territorial jurisdiction that it lacked in hearing and determining his case contrary to the law which prescribed the relevant jurisdiction. He added that the good faith by Hamisi Law Courts in hearing and determining the case amounted to judicial craft or innovation hence did not grant jurisdiction which was imposed by law. 14. He pointed out that there was a remote chance that he was suffering from mental illness at the time of trial but the same could not be proved. He argued, however, that standard criminal practice demanded that with the nature of such offences, he ought to have been subjected to a mental assessment test before standing trial. He blamed the Trial Court for disregarding the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2356/eng@2026-02-24 2

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15. On its part, the Respondent submitted that in Kenya, the Magistrates Courts had criminal jurisdiction as conferred by the Criminal Procedure Code Cap 75 (Laws of Kenya). It argued that territorial jurisdiction was defined by the location where the cause of action arose to ensure that parties have a fair opportunity to be heard. 16. It was categorical that the matter herein emanated from [Particulars Withheld] Village, Igunga SubLocation, Chavakali Location in Sabatia Sub-County which was within the jurisdiction of the Trial Court. It was emphatic that Hamisi Law Courts had jurisdiction to handle the matter since the offence was committed within its territorial jurisdiction. 17. Section 72 of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides as follows:“ Trial at place where Act done or where consequence of offence ensues When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.” 18. Notably, a perusal of the charge sheet herein indicated that the offence herein took place at [Particulars Withheld] Village, Igunga Sub-Location, Chavakali Location in Sabatia Sub-County in Vihiga County. Thus, the case was rightly within the territorial jurisdiction of Hamisi Law Courts as that was the court within the local limits of whose jurisdiction the offence had been committed. 19. In the premises, Ground of Appeal No (1) was, therefore, not merited and the same be and is hereby dismissed. II. Mitigation 20. Ground of Appeal No (2) was dealt with under this head. 21. The Appellant invoked Article 25 and 50 of the Constitution of Kenya 2010 and argued that the Trial Court disregarded his mitigation that he was remorseful, a first offender and had two (2) children who depended on him. 22. On its part, the Respondent submitted that the Trial Court considered the Appellant’s mitigation and noted that he was remorseful. It asserted that the court further noted that the offence was rampant within the area and held that the same must be deterred. It pointed out that the court proceeded to take into account the period the Appellant had been in custody from 15th June 2021 up to the date of sentencing. 23. It contended that the Appellant had not shown this court how his mitigation was disregarded. It argued that the conviction and sentence was safe and proper and should be upheld. 24. Notably, a perusal of the Trial Court’s proceedings herein showed that on 13th June 2023, after the delivery of the Judgment, the Trial Court allowed the Appellant to submit his mitigation before sentencing. The Appellant stated that he had two (2) children at home who relied on him. The Trial Court rendered itself as follows:“ Court-Considers mitigation and notes that accused is not remorseful. Also takes into account how rampant this type of offence is around this area and must be deterred…” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2356/eng@2026-02-24 3

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25. It was clear that the Trial Court took into account the Appellant’s mitigation. His assertions that his mitigation was disregarded was rendered moot. In the premises, Ground of Appeal No (2) was not merited and the same be and is hereby dismissed. Disposition 26. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal that was dated 28th December 2023 and lodged on 15th January 2024 was not merited and the same be and is hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe. 27. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 24TH DAY OF FEBRUARY 2026 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2356/eng@2026-02-24 4

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