Mangare v Republic (Criminal Appeal E061 of 2021) [2023] KEHC 24931 (KLR) (7 November 2023) (Judgment)
Neutral citation:
[2023] KEHC 24931 (KLR)
Republic of Kenya
Criminal Appeal E061 of 2021
GMA Dulu, J
November 7, 2023
Between
Elijah Mwarimbo Mangare
Appellant
and
Republic
Respondent
(From the conviction and sentence in Criminal Case No. E051 of 2021 at Taveta Law Courts delivered on 1st October 2021 by Hon. Khapoya S. Benson (PM)
Judgment
1.The appellant was convicted after a full trial of causing grievous harm contrary to Section 234 of the Penal Code, resisting arrest contrary to Section 103(a) of the National Police Service Act 2011, and failure to wear a facemask contrary to Section 6(1)(b) as read with rule 2 of the Public Health Act Covid-19 restriction of movement rules.
2.He was sentenced to a fine of Kshs. 1,000,000/= in default 4 years imprisonment, fine of Kshs. 50,000/= in default 1 year imprisonment, and fine of Kshs. 2,000/= in default 2 months imprisonment respectively.
3.Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal challenging both conviction and sentence.
4.The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant, as well as the submissions filed by the Director of Public Prosecutions. I note that the Director of Public Prosecutions has submitted that the 2nd count of resisting arrest is duplex to count 1, as the facts and incident are the same.
5.I also note that the Director of Public Prosecutions has submitted that for count 1 for grievous harm, the appellant having served 2 years imprisonment, such is sufficient punishment and that he should be released.
6.I agree with learned Prosecuting Counsel that the facts for count 1 and count 2 were the same, and could easily confuse the appellant in his defence. The charges were thus defective for duplicity and the trial Magistrate should have either disallowed one of those charges, or acquitted the appellant on one of those charges. I will thus quash the conviction and sentence on count 2.
7.With respect to count 1 for grievous harm, the conviction in my view was well grounded, and the conviction will be sustained.
8.The default prison sentence on this count was however excessive and unlawful as Section 28 of the Penal Code (Cap.63) provides that the default prison sentence for a fine exceeding Kshs. 50,000/= is 12 months imprisonment only. I will thus reduce the sentence for grievous harm to 12 months imprisonment.
9.Consequently and for the above reasons, I quash the conviction for count 2 for resisting arrest and set aside the sentence imposed therein.
10.As for count 1 for grievous harm, I uphold the conviction but reduce the default prison sentence to 12 months imprisonment. I uphold the conviction and sentence on count 3 for violation of Covid-19 Rules.
11.The appellant having been sentenced in October 2021, I order that he be released from custody forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED THIS 7TH DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-AppellantMr. Sirima for State