Elijah & another v Republic

3. It was PW1’s testimony that the 1st appellant came carrying a panga, a fork jembe and a stick. He threatened that he would kill someone. He stood on the opposite side of the 2nd appellant, such that PW1 was positioned between them. PW1 stated that he saw two pangas thrown at him from each of the appellants’ side. He sustained a cut on the right side of his head. At this point, Mureithi and Eric ed from the scene. PW1 testied that he fell on his back and lost consciousness. When he regained consciousness, four days later, he found himself at Chuka Hospital. He stated that he was admitted at the hospital for two weeks. According to PW1, there was a pending court case with respect to the ownership of the particular parcel of land, which was between himself and the appellants. 4. PW4, Eric Mutegi, stated that he was hired by PW1 and Muriithi to transport them to PW1’s farm. It was on 18th December, 2011, at 3.00 p.m. They alighted at a place known as Iruku. PW1 asked him to wait for them. When they took a while to come back, PW4 decided to follow them inside the farm. He found them standing outside on a shamba. The 2nd appellant was present together a young boy and girl. The 2nd appellant was holding a panga. She sent the young boy to fetch his father. The 1st appellant came to the scene. PW4 stated that he heard him say that he had warned PW1 against coming back to the shamba. According to PW4, the 1st appellant approached PW1 and hit him on the left side of his face, and on his forehead with a spade. He immediately left the scene with Muriithi, who went to report the incident to the area chief. 5. PW3, Alex Mwiti Njeru, testied that the appellants are his parents-in-law. On 18th December, 2022, he was at home when one Lamson Kirimi informed him that someone had been cut. They proceeded to the scene where they found the person lying on his stomach. He was bleeding and was unconscious. They were not able to identify the victim. PW3 called one Njiru who came with a vehicle which they used to rush the victim to the area assistant chief, Lloyd Kinyua (PW2). PW2 accompanied them to Chuka Police Station, where they reported the incident. The police advised them to take the victim to Chuka District Hospital. 6. PW5, Joseph Mwenda, was a clinical ocer at Chuka District Hospital. He produced in evidence the complainant’s discharge summary and P3 Form. It was his evidence that the complainant sustained a total of seventeen (17) cut wounds on the head and on the left side of his face. He also had a cut wound on his left hand. He stated that a sharp object was used to inict the injuries, which were assessed as grievous harm. He testied that PW1 was admitted at the hospital, and discharge on 30th December, 2011. 7. The investigating ocer, Cpl. Richard Oburoge (PW6), told the court that he was at Chuka Police Station on 18th December 2011, when the complainant was brought by PW2, accompanied by other members of the public. He had multiple cut wounds on his head and body. PW6 referred them to Chuka District Hospital where they took PW1 for medical treatment. He also recorded the statements from the witnesses. It was PW6’s evidence that the appellants, at the same time, came to the police station and reported that an assault had been occasioned on the 2nd appellant by the complainant. PW2 identied the 1st appellant and informed PW6 that he was the man who attacked the complainant. PW6 stated that he arrested the 1st appellant and interrogated him. The 1st appellant informed him that PW1 was assaulting his wife, and that in the process of defending his wife, he injured PW1 using a panga. The 1st appellant took PW6 to the scene of crime where he retrieved the panga. PW6 testied that the scene of crime had blood stains and signs of struggle. He stated that he interviewed the complainant on 14th January, 2012, after he had recovered. The complainant informed him that the 1st and 2nd appellants jointly attacked him. Consequently, he arrested the 2nd appellant on 20th March, 2012. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1963/eng@2026-09-25 2

page 2 of 6

8. It was his evidence that during his investigations, he discovered that PW1 had gone to view a piece of land, which he had purchased from the appellants’ sister. PW1 was accompanied by a potential buyer, one Edward Muriithi, and PW4, a motorcycle taxi rider; that on arrival, the 2nd appellant confronted them, and told him that he did not own the said parcel of land. The 2nd appellant sent his son to fetch the 1st appellant, and together, the two appellants attacked the complainant, while armed with pangas. The two eye witnesses ed from the scene and informed members of the public, who went to rescue PW1 and took him to the police station. 9. After close of the prosecution’s case, the appellants were placed on their defence. They elected to give sworn evidence. The 1st appellant testied as DW1. He told the court that on the material date of 18th December, 2012, he was at home with his wife when he heard a motorcycle approaching. Four or ve people alighted, and started walking towards his farm. The 1st appellant stated that he called his wife. They went to the farm. They heard people screaming while running towards a nearby river. The 1st appellant stated that he did not recognize any of them. They went to police station to report the trespass. At the station, he was arrested after being identied by the assistant area chief, as the man who had attacked the complainant. The 1st appellant denied assaulting the complainant. He stated that the complainant was a stranger to him, and that he saw him in court for the rst time. The 2nd appellant corroborated the evidence of the 1st Appellant. She maintained that the allegations against them were false. 10. At the end of the trial, the trial magistrate found that the prosecution had suciently established its case against the appellants. The appellants were convicted as charged, and were each sentenced to serve fteen (15) years imprisonment. 11. The appellants challenged this decision of the trial magistrate’s court before the High Court of Kenya at Chuka. In their petition of appeal, the appellants stated that the learned trial magistrate erred in law and fact by: convicting them of an oence whose particulars were not established by the prosecution, beyond reasonable doubt; disregarding their respective defences; convicting them on the basis of inconsistent and contradictory evidence by the prosecution witnesses; and, by imposing a sentence that was harsh and excessive. 12. The learned Judge (Limo J.) after re-evaluating the record of the trial court and the evidence tendered before it, armed both the conviction and sentences meted out by the trial court. 13. The appellants are before us on a second appeal. They have challenged the decision of the rst appellate court on grounds that: the prosecution failed to prove their case to the required standard, beyond reasonable doubt; crucial and vital witnesses were not availed by the prosecution in violation of Section 150 of the Criminal Procedure Code; the evidence of the prosecution witnesses was contradictory; and lastly, that their respective defences were improperly rejected. 14. The appeal was canvassed by way of written submissions. The appellants appeared in person during the plenary hearing of the appeal. The appellants submitted that the fact that a ght ensued between them and the complainant is not disputed. They maintained that the prosecution failed to establish malice on their part. It was the appellants’ appeal that it was not right for the complainant to bring a potential buyer to view the parcel of land, which was the subject of a pending court dispute. They submitted that the parcel of land was purchased from the appellants’ family. It was their submission that there was no bad blood between them and the complainant, until they discovered the complainant’s intention to sell the land. The appellants urged us to make an adverse inference against the prosecution, for failing to call the potential buyer, Murithii, as a witness, who was alleged to have been present when the incident occurred. The appellants https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1963/eng@2026-09-25 3

page 3 of 6

urged that the prosecution witnesses gave inconsistent evidence, and that the two courts below erred in convicting both appellants, leaving their children with no one to take care of them. They submitted that they had both reformed and urged us to give them a second chance at life. 15. The appeal was opposed. Learned prosecution counsel, Ms.Nandwa, submitted that the prosecution established its case against the appellants to the required standard of proof. It was her submission that the medical evidence proved that the complainant suered grievous harm after being cut severally by the appellants using pangas. She asserted that the complainant was admitted in hospital after being found unconscious and bleeding, and that he was only able to speak to the police after two weeks, due to the serious nature of his injuries. It was her case that the appellants unlawfully injured the complainant, and that they ought to have resolved the land dispute in court, as opposed to taking law in their own hands. 16. Ms. Nandwa submitted that the appellants were positively identied as the assailants by the evidence of PW1 and PW4, as the incident occurred in broad daylight. She explained that the contradictions pointed out by the appellants did not go to the root of the case, and that their respective defence statements did not oust the cogent evidence adduced by the prosecution witnesses. With respect to the sentence, learned prosecution counsel was of the view that, considering the aggravating circumstances of the case, the sentence meted upon the appellants was lenient and was not excessive. Ms. Nadwa invited us to dismiss the appeal for lack of merit. 17. This is a second appeal. The mandate of this Court on a second appeal, according to the provisions of Section 361 of the Criminal Procedure Code, is conned to matters of law only. This Court will not interfere with concurrent ndings of fact by the two courts below unless it is shown that the courts 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. See James Nyamweya v Republic [2009] eKLR. 18. Having considered the record, and the rival submissions set out above, we are called upon to determine: i. Whether the prosecution established its case against the appellants beyond any reasonable doubt; ii. Whether the prosecution failed to call material witnesses; and, iii. Whether the appellants’ respective defences were considered. 19. With respect to the rst issue, it is the appellants’ contention that the prosecution failed to prove the ingredient of malice, to support the appellants’ conviction. It is not contested that a land dispute existed between the parties. From their written submissions, the appellants do not deny that they attacked the complainant. They however blame the complainant for instigating the attack, by bringing a potential buyer to view the parcel of land, knowing very well that the land was the subject of a dispute that was still pending in court. In essence they are pleading provocation. However, this is the rst time that they are raising such defence before this Court. 20. We note that the appellants did not inquire from PW1 why he was at the farm before they proceeded to attack him. According to the PW1’s evidence, once he arrived on the farm, the 2nd appellant immediately sent his daughter to fetch pangas. After her daughter brought her a panga, she then sent her son to call the 1st appellant. The 1st appellant came with a panga and fork jembe. The 1st appellant was threatening that he was going to kill someone as he walked towards them. Immediately the 1st appellant arrived, the two appellants hurled their pangas at PW1. They did not try to have a https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1963/eng@2026-09-25 4

page 4 of 6

conversation with him. They immediately resorted to inicting cut wounds on the complainant, and left him on the ground, unconscious and bleeding. 21. PW4, who witnessed the attack, corroborated PW1’s version of events. The P3 Form indicated that the complainant suered multiple deep cut wounds on his scalp and the left side of his face; seventeen (17) cuts to be exact. The degree of the injuries was assessed as grievous harm. We are satised that the manner in which the appellants attacked the complainant, as well as the nature of injuries he suered, proved that the appellants meant to cause the complainant grievous harm. We nd that the nature of injuries suered by the complainant amount to grievous harm as described under Section 4 of the Penal Code. The two courts below reached a concurrent nding that the prosecution had proved its case on the charge. We see no reason to depart from their concurrent nding of fact. This ground of appeal must therefore fail. 22. The appellants contend that a vital witness, Edward Murithii, who was the alleged potential buyer, was not availed by the prosecution to adduce evidence before the trial court. The appellants argued that this witness was necessary to establish the truth, about what transpired on the material day. We observed that the appellants did not raise this issue before the rst appellate court. That being said, we are of the view that the witnesses who were availed by the prosecution were sucient to establish its case against the appellants. PW4, who was present at the scene, together with PW1, and the said Edward Mureithi, narrated to the trial court how the appellants attacked PW1, before he, and the said Edward Murithii ran for safety. His eye witness account corroborated the evidence of the complainant. PW3 rescued the complainant from the scene of crime, where he had been left for dead by the appellants. It was his evidence that when he found the complainant, he was covered in blood. PW2 and PW3 reported the incident to the police, and later took the complainant to hospital. The investigating ocer, with the aid of the 1st appellant, recovered one of the pangas used by the appellants to injure the complainants from the scene of crime. 23. The appellants faulted the learned rst appellate Judge for rejecting their defences, over mere allegations by the prosecution. In their respective defences, the appellants denied attacking the complainant. The 1st appellant stated that he noticed a group of four to ve people approach his shamba. He called the 2nd appellant and together they went to the farm. The appellants stated they saw the said people, who were strangers to them, running towards a nearby river. They testied that the 1st appellant was arrested when they went to report the trespass to the police station. The 2nd appellant stated that she was arrested later. 24. We agree with the ndings of the learned st appellant Judge that the defence by the appellants was displaced by the evidence of the investigating ocer, PW6. PW6 told the court that the 1st appellant told him that he attacked the complainant, since he was defending his wife, who he alleged had been assaulted by the complainant. This was a dierent story from what the appellants stated in their defence. The 1st appellant led PW6 to the crime scene where a panga was retrieved. PW6 noted the presence of blood stains on the ground. This evidence was not challenged by the appellants. This evidence by PW6, as well as that of the complainant, and the eye witness (PW4), displaced the appellants’ evidence that they did not see the complainant on the material day, and that they did not assault him as alleged. The incident occurred in broad day light, and the appellants were well known to the complainant. This was therefore not a case of mistaken identity. The two courts below reached the concurrent nd that the respective defences of the appellants was contrived. We agree. This ground must also fail. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1963/eng@2026-09-25 5

page 5 of 6

25. Although the appellants contended that the prosecution witnesses adduced inconsistent evidence, they did not expound on the same in their written submissions, nor did they point out the specic contradictions which they desired us to consider. 26. We understand the appellants, in their written submissions, to be oering mitigating circumstances, and urging this Court to give them a second chance, since their children were left with no parents to take care of them. Section 234 of the Penal Code prescribes a penalty of life imprisonment for persons found guilty of unlawfully causing grievous harm. The trial court, taking into consideration the appellants’ mitigation before the said court, as well as the circumstances of the case, sentenced the appellants to serve to each fteen (15) years imprisonment. This sentence was armed by the rst appellate court. The learned Judge noted that the sentence was commensurate with the oence committed, in the circumstances of the case. The appellants have not demonstrated to this Court that the sentence is manifestly excessive, or that the two court below overlooked some material factor, or acted on a wrong principle, to warrant this Court to interfere with the said sentence. See Bernard Kimani Gacheru v Republic [2002] eKLR. 27. Considering the aggravating circumstances of this case, we hold that the period that the appellants have already spent in prison, is not sucient punishment, in light of the gravity of the oence they committed. They shall continue to serve their respective sentences as meted by the trial court, and armed by the rst appellate court. 28. In view of the foregoing, the appellants’ appeal, both on conviction and sentence lack merit and is hereby dismissed. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA JUDGE OF APPEAL ........................................ L. KIMARU JUDGE OF APPEAL ........................................ A.O. MUCHELULE JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1963/eng@2026-09-25 6

page 6 of 6