Johana Simon Nthiga alias Kimathi Mukuni v Republic

3. PW2, Simon Gikando, told the court that on the material day, he was on his way to PW1’s house to get payment for a kilo of meat, which he had sold to her on credit. When he was about 30-50 meters from her house, he heard her screaming, while shouting that the appellant had injured her eye. He stated that when he got to the scene, he found the complainant lying on the ground, while the appellant was standing beside her, armed with a panga. PW2 stated that he called PW5, Jeovana Karegi, who is PW1’s daughter, and informed her of the incident. Several neighbours came and carried PW1 into her house. PW2 stated that she was bleeding from her left eye. He testied that the appellant was alone with PW1 when he arrived at PW1’s house. 4. PW3, Abraham Mureithi Kanguo, was among the people who responded to PW1’s screams for help. He stated that on his way to PW1’s house, he met the appellant heading in the opposite direction. He was carrying a panga. He testied that he met PW2 and other neighbours at PW1’s house when he got there. They took PW1 to the hospital. PW4, Evangeline Karimi, is PW1’s daughter. She told the court that she received a phone call from a neighbour who informed her that her mother had been injured. She testied that she organized for a motorcycle to transport PW1 to hospital. 5. PW6, John Ojuok, was the arresting ocer. It was his testimony that on 18th September 2017, at about 4.30 p.m., he received a call from a lady who identied herself as Judy. She informed him that she had spotted the appellant, who was alleged to have injured a lady, and who had immediately thereafter gone into hiding. She told him that the case had been reported at Gatunga Police Station. She gave him the appellant’s name and described what he was wearing at the time. PW6 stated that they managed to arrest the appellant at Tachini Market and escorted him to Gatunga Police Station. 6. PW7, Emilio Mwenda Gaichu, was a clinical ocer based at Tharaka District Hospital. He produced PW1’s P3 Form on behalf of his colleague, Mr. Mutuku, who was indisposed, with consent from the appellant. He told the court that PW1 gave a history of being assaulted on 4th March 2017, and that her attacker used a stone, which raptured her left eyeball. The injury was assessed as grievous harm. 7. PW8, PC Ronald Ibwaga, of Gatunga Police Station investigated this case. He took over from the initial investigating ocer, PC Isabella, who had been transferred to Mombasa. It was his testimony that on 8th September 2017, he was at the station when he received a call from the OCS, directing him to pick a suspect who was being held at Irunduni AP Camp. He stated that he re-arrested the appellant and obtained PW1’s treatment notes and P3 Form from PC Isabella. She had also recorded statements from witnesses which she handed over to him. PW8 stated that he interrogated the witnesses and visited the scene of crime. He recalled that the appellant was afterwards arraigned before the court and charged with the oence. 8. After close of the prosecution’s case, the trial magistrate found that the prosecution had established a prima facie case to warrant the appellant to be placed on his defence. He gave sworn evidence and called two witnesses. It was the appellant’s evidence that PW1 falsely accused him of assaulting her with a stone. He stated that on 4th March 2017, he received a call from PW1. She was looking for a motorcycle to transport her to the hospital since she had been hit by someone on her eye. He informed PW1 that he was not available. He stated PW1 then hired Robert Gitonga (DW2) who took her to the hospital. It was his evidence that he was surprised when PW1 accused him of having physically assaulted her. He stated that PW1 informed him that she injured her eye when she fell down. He was of the rm view that the evidence tendered by the prosecution witnesses was false. 9. DW2 told the court that the complainant called him on 4th March 2018, at 8.00 a.m., and asked him to transport her to hospital. He stated that she informed him that she had fallen down while drunk and hurt her eye. DW3, Peter Murimi, testied that he was with the appellant at Ntoroni on 3rd March https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1865/eng@2026-09-25 2

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2017, from 5.00 p.m. to about midnight. He stated that he was in the company of the appellant the following day as they were watering crops together. He testied that the appellant did not assault the complainant. 10. The trial court (Hon. Mesa, SRM) upon assessing and analyzing the evidence tendered before it, found that the prosecution had suciently established its case against the appellant to warrant his conviction. The appellant was found guilty as charged, and sentenced to serve a custodial sentence of twenty (20) years. 11. The appellant, aggrieved by this decision, led an appeal before the High Court at Chuka. His appeal was founded on nine grounds. In a nutshell, the appellant faulted the trial court for convicting him on the basis of inconsistent, contradictory and incredible evidence adduced by the prosecution witnesses. He was of the view that the prosecution failed to suciently discharge its burden of proof. He was further aggrieved that the trial court dismissed his defence without giving cogent reasons. He was aggrieved that the sentence meted upon him by the trial court was excessive in the circumstances of the case. 12. The learned Judge (Limo J.) after re-evaluating the record of the trial court and the evidence tendered before it, saw no reason to disturb the appellant’s conviction by the trial court. The learned Judge set aside the custodial sentence of twenty (20) years imposed by the trial court, and substituted the same with a sentence of eighteen (18) years imprisonment. This was as a result of the fact that the trial court cancelled the appellant’s bond before rendering its judgment, thereby violating his right to presumption of innocent under Article 50(2)(a) of the Constitution. 13. The appellant is now before this Court seeking to overturn the decision of the High Court, and has proered ve (5) amended grounds of appeal. In summary, the appellant complained that the evidence on record pointed to the oence of robbery with violence and not grievous harm as alleged by the prosecution. He faulted the learned rst appellate Judge for failing to nd that he was not identied at the scene of crime. He took issue with the fact that the learned Judge failed to acknowledge that the prosecution witnesses gave contradictory evidence. He asserted that the learned Judge erred in relying on the evidence of PW1, and in failing to note that his conviction was based on the evidence of a single identifying witness. Lastly, the appellant faulted the learned Judge for failing to take into account the existence of a grudge between the appellant and the complainant’s daughter. 14. The appeal was canvassed by way of written submissions. The appellant appeared in person during the plenary hearing. It was his submission that the evidence on record was to the eect that money was stolen from the complainant’s house during the alleged attack. He submitted that the prosecution failed to charge him with the oence of robbery with violence since he was not properly identied at the scene of crime. He stated that PW1’s evidence of identication was not sucient as she failed to inform the court if she directed the light of the torch to the perpetrator at any time. The appellant challenged the evidence by PW2 that he found the appellant on the scene holding a panga. He stated that it was unconceivable how he could commit such a crime, and wait at the scene, as opposed to eeing from the scene of crime. He maintained that PW2, PW3 and PW4 were all related to the complainant which cast doubt on the veracity of their evidence. 15. It was his submission that PW1 gave contradictory evidence as to when she saw the appellant at her house, and whether she raised an alarm before or after she had been attacked. He submitted that the alleged incident occurred at 9.00 p.m. and that the circumstance surrounding his identication were not free from error. It was the appellant’s submission that although PW2 claimed the appellant gave the machete to one Nderi, PW3 on the other hand told the court that he met the appellant carrying a https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1865/eng@2026-09-25 3

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panga. He submitted that these contradictions created doubt as to the appellant’s guilt. He urged that there was no direct and compelling evidence to warrant his conviction, and asked us to acquit him. 16. In rebuttal, learned prosecution counsel, Ms. Nandwa, was of the view that the prosecution suciently established the ingredients of the oence of grievous harm. It was her submission that the evidence by PW1 and PW7 established that the injuries sustained by PW1 were assessed as grievous harm, as PW1 lost the use her left eye. She explained that PW2 heard PW1 screaming for help, and that when he got to her house, he found her injured on the ground, while the appellant was standing beside her, while armed with a machete. She stated that the appellant was properly identied as the assailant; the appellant was well known to the complainant, and that she informed the Court that had she a torch, which she used to identify him. It was her submission that PW2 placed the appellant at the scene of crime, and that PW3 met the appellant leaving the scene. She urged that the appellant was well known to PW1, PW2 and PW3, and therefore his identication was by recognition. Learned prosecution counsel argued that the appellant, in his defence, admitted that the complainant was well know to him. She submitted that his defence was displaced by the cogent evidence adduced by the prosecution witnesses. With respect to sentence, counsel stated that the same was commensurate with the oence committed. To this end, learned prosecution counsel urged us to arm the decision of the rst appellate court. 17. This is a second appeal. The mandate of this Court on a second appeal is conned to matters of law only, unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. In the case of Kaingo vs Republic [1982] KLR 213 at page 219 this Court stated thus: “ A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court found as it did (Reuben Karoti S/O Karanja versus Republic [1956 17EACA 146].” 18. 19. We have carefully considered the record, the grounds of appeal and the rival submissions set out above, in light of this Court’s mandate. The issues arising for our determination can be summed up as follows: i. Whether the evidence of identication was sucient to sustain a conviction; ii. Whether the prosecution established its case against the appellant beyond any reasonable doubt. Starting with the rst issue, the appellant’s conviction was based solely on the evidence of identication by PW1. The law required the trial court to thoroughly examine such evidence before conrming a conviction based on the same. These were the sentiments of this Court in Cleophas Otieno Wamunga v. Republic [1989] eKLR, where the Court observed as follows: “ It is trite law that where the only evidence against a defendant is evidence of identication or recognition, a trial court is enjoined to examine such evidence carefully and to be satised that the circumstances of identication were favourable and free from possibility of error before it can safely make it the basis of conviction.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1865/eng@2026-09-25 4

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20. Further, it is critical for the Court to warn itself of the dangers of convicting an accused person based on the evidence of a single identifying witness. This Court in the case of Robert Onchiri Ogeto v Republic [2004] eKLR held as follows: “ It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with greatest care the identication evidence of such a witness especially when it is shown that conditions favouring a correct identication were dicult – see Marube & Another v Republic [1986] KLR 356.” 21. In this case, the alleged assault was said to have occurred at 9:00 p.m. It is common ground that the appellant was well known to PW1 prior to the incident. PW1 told the Court that she was removing a pot from the re when the appellant came to her house. He entered inside the house and took money which she had kept under her mattress. She stated that she had a torch whose light she used to identify the appellant. She stated that the was leaving the house to raise an alarm when he hit her with a stone on her left eye. She fell to the ground. The appellant then took her machete and struck her with it. She lost consciousness. The appellant’s identication by PW1 was that of recognition. The complainant used a torch to identify him. She identied him by name as she was screaming for help. The evidence of the prosecution witnesses who responded to her cry for help corroborated her evidence of recognition. They heard her screaming, stating that the appellant had injured her eye. Just like the rst appellate Court, it is similarly our nding that the appellant’s identication by the complainant was positive and free from the possibility of any error. 22. Other than the eye witness account, the prosecution adduced circumstantial evidence in support of its case. PW2 was on his way to PW1’s house when he heard her screaming, shouting that the appellant had injured her eye. He saw PW1 lying on the ground, and the appellant standing next to her carrying a machete. PW2 was categorical that when he got there, only the appellant and the complainant were at the scene. PW3 also responded to PW1’s cry for help. On his way to her house, he met with the appellant walking in the opposite direction, while carrying a machete. PW4 and PW5 told the court that when they got to the scene, they found PW2 and PW3. The appellant was well known to PW2 and PW3. Their evidence corroborated the complainant’s evidence of identication, and placed him at the scene of crime. 23. The appellant in his defence stated that on the material day of 4th March 2017, he went to PW1’s home at 7.00 a.m., after she called him. She requested him to look for a motorcycle transport her to the hospital. She told him that she had fallen down and injured her eye. The appellant stated that he informed her that he was unavailable, and he left and went about his errands. The appellant testied that the complainant framed him since he refused to take her to the hospital. DW2 told the court that he transported PW1 to hospital, and that she informed him that she fell down while drunk. DW3 stated he was with the appellant on 3rd March 2017, from 5.00 p.m. till midnight. It was his evidence that they were at the material time harvesting watermelons. He further stated that he was watering crops with the appellant the following day, on 4th March 2017. 24. We note that the complainant was injured on 4th March 2017, and not the previous day as alleged by the defence witnesses. Further, although DW3 claimed that he was with the appellant on both days, this was not alluded to by the appellant in his testimony. The contention that PW1 framed him because he refused to take her to hospital was not put to PW1 by the appellant during cross-examination. The defence appears to be an afterthought. In addition, the appellant’s conduct of eeing the scene of crime and going into hiding after the incident occurred is demonstrative of a guilty person. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1865/eng@2026-09-25 5

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25. The appellant faulted the learned Judge for failing to acknowledge that a grudge existed between him and PW4. Our perusal of the record showed that the learned Judge extensively considered the appellant’s defence in his judgment. He observed that the appellant failed to lay any basis of the alleged grudge between him and the complainant’s daughter, and further that he did not challenge her with respect to the same during cross- examination. The learned Judge found that PW4 did not give any incriminating against the appellant, and that the probative value of her evidence on the overall weight of the prosecution’s case was insignicant. We agree with the observations of the learned Judge. The evidence by PW4 was to the eect that she received a phone call from a neighbour, who informed her that her mother had been injured by the appellant, and that she should organized for a motorcycle to transport PW1 to the hospital. She did not claim to have seen the appellant at the scene. Further, other prosecution witnesses, in particular PW2 and PW3, placed the appellant at the scene of crime. 26. We are satised that the appellant’s defence did not cast doubt on the evidence adduced by the prosecution witnesses, who placed the appellant at the scene of crime at the time when the complainant was attacked. Looking at the evidence in totality, it is our considered view that there is no other reasonable explanation, other than the appellant attacked the complainant with a stone, during which she suered an eye injury. No other co-existing circumstances weakened the chain of circumstances relied upon by the prosecution. The two courts below reached concurrent nding of fact that the prosecution proved its case to the required standard of proof. We see no reason to disagree with this nding. 27. The fact that PW1 was injured on her left eye was not in contention. Section 4 of the Penal Code denes grievous harm as follows: “ grievous harm" means 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 disgurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;” 28. The medical evidence on record established that the complainant raptured her left eyeball. She had to undergo surgery to remove the eye. She suered a serious and permanent injury. The degree of the injury was assessed as grievous harm, as indicated in the P3 Form. We see no reason to depart from the nding of the two courts below, that the ingredients of the oence of grievous harm were proved against the appellant, beyond any reasonable doubt. We hold that the discrepancies pointed out by the appellant are minor, and do not challenge the overall facts adduced by the prosecution witnesses. 29. The sentence meted on the appellant was legal. The appellant placed no material before us to upset the exercise of sentencing discretion by the two courts below. 30. The upshot of the above is that we dismiss the appeal in its entirety for lack of merit. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ............................ JUDGE OF APPEAL L. KIMARU .............................. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1865/eng@2026-09-25 6

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A.O. MUCHELULE ................................. JUDGE OF APPEAL I certify that this is a true copy of original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1865/eng@2026-09-25 7

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