David Kimutai Kemei v Republic

5. ii. That the trial court erred in law and in fact in relying on fanciful and remote possibilities to convict the Appellant. iii. That the trial Court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that was consequential to the conviction herein. iv. That the trial court erred in law and in fact in not appreciating the Appellant’s cogent defence that overwhelmed the prosecution case. v. That the trial court erred in law in not appreciating that a mandatory sentence is unconstitutional. The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. Appellant’s Submissions 6. The Appellant’s submissions are actually an admission that he committed the offence in question and that the complainant is his wife. He seeks indulgence of the court stating that he regrets the events of the day. He submits that he had anger management issues and that he has undergone some therapy to help him manage his temperament in a better way. 7. He submits that he has also sought forgiveness from his wife and God and requests that this court also forgives him. He submitted that under Section 234 of the Penal Code, the court has discretion to give a sentence that is lower than the life imprisonment that was meted out to him. 8. The Appellant also cites Article 50(2) of the Constitution and the Sentencing guidelines and asks the Court to be lenient to him stating that he is a first offender. In essence what the Appellant is asking is that the court sets aside the sentence because he is remorseful and has repented for his commission. Respondent’s Submissions 9. In opposing the appeal, the Respondent submitted that the prosecution had proved its case beyond reasonable doubt and that there was no contradiction in their case that would warrant a setting aside of the decision of the trial court. They urged the court not to interfere with the findings of the trial Magistrate. 10. On the sentencing, the Respondent submitted that life imprisonment is the maximum sentence provided for under Section 234 of the Penal Code. They submitted that owing to the gravity of the offence, the trial Magistrate exercised his discretion and meted out the appropriate sentence, which the court gave as life imprisonment. The Respondent submitted that the trial Magistrate was within the law and urged the court not to interfere with the sentence. Analysis of the Trial Court Evidence. 11. The role of this Court as the first Appellate Court is well settled. It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9602/eng@2026-06-26 2

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12. I have considered the entire evidence on record, the record of Appeal herein, the grounds of the appeal and the Submissions by the parties and there is only one issue for determination. I say this because the submissions by the Appellant admit the commission of the offence and the only contention is on the sentence. I will frame the issue as follows:- Whether the sentence meted by the trial Magistrate is excessively high. 13. Section 234 of the Penal Code Provides that “any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life. Thus the statutory penalty for the offence of Causing grievous harm is life imprisonment. 14. In the instant case, the trial court noted the mitigation of the appellant, and the aggravating factors in the commission of the offence and then proceeded to mete out the sentence. The trial Magistrate stated and I quote: “ I have considered the mitigation by the accused person as well as the aggravated manner in which the offence herein was committed and taking into account the fact that the complainant could easily have lost her life, I hereby sentence the accused person to imprisonment for life”. 15. I have considered the circumstances under which the offence herein was committed. That the Appellant went to the home of his ex-wife and without any provocation whatsoever cut her severally. The complainant suffered several deep cut wounds on the head, neck, forehead, palm, arms and shoulders She was admitted in hospital and underwent treatment. 16. I have also considered the reasons given by the trial Magistrate while meting out the sentence. In the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR it was stated as follows: “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist.” 17. In the circumstances, this court finds that the Sentence meted out by the trial Magistrate was commensurate to the offence committed and the court will not interfere with the sentencing discretion of the trial court. 18. In the upshot, I find that the appeal herein lacks merit and is dismissed. The conviction and sentence by the trial court are upheld. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF JUNE 2026. ............................ L. M. WACHIRA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9602/eng@2026-06-26 3

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JUDGE In the presence of: Leadsy – Court assistant Appellant – present in person (virtually from Kisumu Max.) Ms Jebichi - for the State/Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9602/eng@2026-06-26 4

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