(Being an Appeal against the Judgment and Conviction at the Chief Magistrate’s Court at Malindi delivered by Hon. G. Mutemi Resident Magistrate on 4 th February, 2026 in Criminal Case No. E206 of 2024)
Introduction
The appellant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code. The particulars were that on the 17 th day November, 2023 at Majengo area in Malindi Sub County within Kilifi County willfully and unlawfully did grievous harm to Doorie Mohamed Mirza by amputating his right index finger.
The appellant pleaded not guilty to the charges when he was arraigned in court. The case proceeded for hearing with the prosecution calling three (3) witnesses. The appellant was placed on his defence. He gave a sworn statement and called four witnesses. In a judgment delivered on 4 th February, 2026 the trial magistrate found the appellant guilty and convicted him accordingly. Subsequently on 17 th February, 2026 the trial magistrate sentenced the appellant to serve five (5) years imprisonment. The appellant was aggrieved by the conviction and sentence and preferred this appeal.
The appellant in amended memorandum of appeal raised eleven (11) grounds of appeal to wit:
1. That the learned trial magistrate erred in both law and fact in proceeding to hear the matter after he had substantively recused himself from the same;
2. That the learned trial magistrate erred in both law and fact in proceeding to sentence and convict the appellant based on evidence that had glaring omissions, gaps and was not clear;
3. That the learned trial magistrate erred in both law and fact in proceeding to convict and sentence the appellant on evidence that was insufficient, contradictory and uncorroborated;
4. That the learned trial magistrate erred in both law and fact in disparaging the defence proffered by the appellant hence shifting the burden of proof to the appellant;
5. That the learned trial magistrate erred in law and fact by finding in the judgment that injuries were sustained from ‘mob’ which finding was a total departure from the evidence of both the prosecution and the defence, as no witness ever mentioned the presence of a mob at the scene;
6. That the learned trial magistrate erred in law and fact by ignoring evidence of subsequent life-threatening attack where the complainant used a makeshift gun-like tool against the appellant, which established the appellant’s reasonable fear and the complainant’s history of violence;
7. That the learned trial magistrate erred by failing to consider the multiple OB Numbers and police reports filed by the appellant, which documented a continuous pattern of aggression and subsequent attacks by the complainant;
8. That the learned trial magistrate erred by failing to evaluate photographs of injuries sustained by the appellant, which corroborated his testimony of being under attack by an armed aggressor and trained dog;
9. That the court failed to address the 24-day delay between the incident and the complainant’s medical treatment, creating doubt as to whether the injuries was caused by the appellant;
10. That the court erred by imposing a harsh sentence of 5 years while ignoring the pre-sentence report recommending non-custodial supervision;
11. That the learned trial magistrate erred both in law and fact in proceeding to convict and sentence the appellant after relying on photos produce in the absence of a certificate as required by Section 106B of the Evidence Act;
Prosecution Case
PW1 the complainant testified that on 7 th November, 2023 at around 10pm he was walking his dog around when the appellant whom he did not know came with his Tuk Tuk and stepped on his dog’s chain. His dog was unable to walk as a result and it squatted to the ground. The appellant took a metal rod and hit the dog with it and the dog died on the spot. He then hit him with the metal rod on the head injuring him. He tried to hit him a third time but he blocked him with his right hand and he hit his index finger cutting it off completely. There were some people digging trenches who came to his rescue. The appellant tried to drive away his Tuk Tuk but a friend came in a motorcycle and carried him away leaving his Tuk Tuk behind. The complainant said the appellant carried away the metal rod. He went for treatment at Malindi Sub County Hospital for treatment where he was advised to report the matter to the police. He reported the matter to the police and went back to the hospital where he was treated. After three days the finger got infected and the hospital recommended amputation which was done. He continued with treatment and later on 30 th January, 2024 he was issued with a P3 Form which was filled at Malindi Sub County hospital. The investigating officer later went to the scene. He said photographs were taken by eye witness of his injuries and his dog who sent them to him via WhatsApp and were certified by the police. The appellant was later arrested. The complainant said he did not know the appellant, but he had previously hit him and he lost a tooth. He said he saw the appellant for the first time on 25 th December, 2022. He denied that he had bad blood with the appellant. He also alleged that on 26 th December, 2022 the appellant surrounded him and beat him with his friends.
On cross-examination he maintained that on the material day the appellant stepped on the chain of his dog then hit it. He denied commanding the dog to attack the appellant. He said he discovered that he had a grudge with the appellant after the incident as each time the appellant saw him on the road, he would show him the middle finger. He said he did not have a weapon and it is the appellant who beat him first. He said the appellant was injured when running away from the mob. He said he could not trace the people who were digging trenches as they were casuals and he did not have their contacts. He said when he went to hospital, he could not be treated because he did not have an OB. He maintained that after three days the doctors recommended amputation. He said the incident happened in a quiet road near his house but there not many people. He said he did not have any eye witnesses.
PW2 investigated the case. He said the case was the case was reported at the station and he commenced investigations by recording statement from the complainant. He also visited the scene at Majengo area. He narrated how the complainant was treated in various hospitals. He stated that the complainant had injuries on his right-hand index finger which was eventually amputated. He said the complainant identified the appellant as the one who assaulted him after they met at Majengo area. The complainant narrated to him how the incident happened. He issued the complainant wit a P3 Form which was later filled by the doctor. He said after arresting the appellant he interrogated him and recorded his statement and noted that the two had differences. He noted that the appellant had also lodged a complaint against the complainant. He testified that it is the differences between the two that escalated to the appellant assaulting the complainant.
On cross-examination he said the incident was reported on 7 th November, 2023 and the complainant had injuries on his head and right hand. He said he issued the complainant with a p3 Form which was filled. He said he recorded the statement after the complainant was treated. He said there were eye witnesses but they were unwilling to record statements. He confirmed that there was bad blood between the complainant and appellant.
PW3 testified on behalf of his colleague Dr. Ibrahim who filled the P3 Form. He stated that treatment notes showed that the complainant was treated at Kisauni Dispensary and Murima Maternity hospital. He said that according to the PW3 Form, the complainant had a cut wound on his forehead and wound on the right index finger that led to amputation. The conclusion of medical examination was that the complainant sustained grievous harm. He produced the P3 Form and treatment notes as exhibits.
On cross-examination he said the treatment book did no show that the complainant was treated at Malindi Sub County Hospital. He approximated the injuries to be three months old.
Defence Case
DW1 the appellant testified that on 7 th November, 2023 he was at Tuk Tuk stage in Majengo area around 11.45am when the complainant passed there smiling. The complainant made a U-turn and after 4 to 5 minutes a child came and told him that Mzee Ali wanted him to go and pick him. He went to Mzee Ali and found Mzee Ali was not there. He waited for him. Shortly the complainant came from behind and told him that he will kill him. The complainant had a steel and a large dog. He told the dog to attack him. The people who were at the scene ran away. The complainant then used a pipe to hit him on the forehead and he started bleeding. He took photos of the injuries he sustained. At the time the dog was trying to attack him. As the other people who were at the scene ran away, Magalo came and tried to stop the complainant from attacking him. The complainant threatened Magalo and he ran away and he was left alone with the complainant and the complainant’s dog. He hit the dog on the head because it was still charging on him. Magalo came back and he told him to go to the stage and get other drivers. The complainant continued threatening him and Magalo. Later Philip and Samuel came and they contained the complainant. He went to hospital for treatment where he met with the complainant who continued threatening him. After treatment he reported the matter including previous attacks by the complainant to the OCS. Later he was called by the OCPD and informed that he had been charged. He alluded to other assault cases and identified a P3 Form issued to him on 7 th January, 2023. He also identified a photo of something which looked like a pistol which the complaint has used to threaten him. He also informed the trial court that he had shared the information of threats by the complainant with the ODPP.
On cross-examination he maintained that the complainant attacked him and threatened his dog to attack him which he used to walk around with. He said Magalo was the first person to come to the scene and assist him. He witnessed the complainant beating him and went to get other Tuk Tuk drivers. He said the encounter lasted about 30 minutes.
DW2 Wycliffe Ochieng Magalo said he heard noise around 11am and when he went to check he found the appellant and the complainant in a scuffle. He told the court that he saw the complainant with a steel rod and he was urging his dog to attack the appellant. The appellant went to his Tuk Tuk and took a steel rod and hit the dog. He said the complainant hit the appellant on the forehead with a steel rod. The complainant then went and came with a panga. The people who were at the scene ran away. He called other Tuk Tuk drivers to scene.
DW3 Adam Abdulmalik told the trial court that on the material day he was called by Philip who informed him that the appellant had been attacked. He went to the scene but did not find anyone. He was informed that the appellant had gone to the hospital. He went to the hospital and found the appellant bleeding from his head. The complainant came to the hospital also and threatened the appellant. He however said he did not witness the incident save for finding the appellant in the hospital.
DW4 Philip Otieno told the trial court that on the material date he was called by Simon a boda boda rider who told him the appellant had been injured. He went to the scene and found the complainant holding his dog. He found the appellant bleeding from the forehead. They took him to the police station where they were told to go to hospital first for treatment.
Appellant’s Submissions
The appellant in his submissions cited contradiction in the testimony of the complainant submitting that even though the complainant said he did not know the appellant in his testimony, but stated that he had differences with the appellant meaning the complainant knew the appellant before the incident. Further the appellant submitted that the trial court relied on the photographic evidence in the absence of a certificate contrary to Section 106B of the Evidence Act. He relied on the case of Republic vs John Ochieng (2021) e KLR. The appellant further faulted the trial court for proceeding to hear the matter after substantively recusing itself thus denying the appellant right to fair trial. He relied on the case of Porter vs Magill. Further the appellant submitted that the trial court failed to consider the appellant’s defence thus shifting the burden of proof from the prosecution to the appellant.
The respondent did not file submissions. The respondent relied on the evidence on record and urged the court to enhance the sentence as the same was lenient considering the gravity of the offence which provides for life sentence.
Analysis and Determination
This being the first appeal, the duty of this court is to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent conclusion without overlooking the fact that it did not have the opportunity to hear and see the witnesses testify in court. This cardinal principle was laid down in the case of Okeno vs Republic (1972) E.A where the court held:
‘All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court independently to draw its own conclusions of course without overlooking or disregarding the findings of made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Further to the foregoing it must also be remembered that the prosecution bears the burden to prove the charges against an accused person beyond reasonable doubt. Therefore, the issues for determination in this case are:
a) Whether the prosecution proved its case beyond reasonable doubt;
b) Whether the defence raised placed doubt on the prosecution’s case; and
c) Whether the sentence imposed was lawful.
The appellant was charged with the offence of causing grievous harm. The offence of causing grievous harm is provided for under Section 234 of the Penal Code which provides:
“Any person who unlawfully does grievous harm to another is guilty of a felony and liable to imprisonment for life.”
Thus, to secure conviction for an offence of causing grievous harm, the prosecution must establish the following essential ingredients:
i) The victim sustained grievous harm;
ii) The harm was caused unlawfully; and
iii) Whether the accused caused or participated in causing the harm.
Grievous harm is defined under Section 4 of the Penal Code to mean:
“’Grievous harm’ means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely to so injure health, or which extends to permanent or serious injury to any external or internal organ, membrane or sense.”
Therefore, the specificities of grievous harm are the injury to health must be permanent or likely to be permanent.
First and foremost, the appellant asserted that the trial court proceeded with the matter after it had recused itself. I agree with the appellant that once a court recuses itself it cannot proceed with the matter. However, the court can only recuse itself where there are exceptional circumstances. In this case the court upon recusing itself, it referred the matter to the Chief Magistrate who upon perusal of the complaint raised by the complainant found that the same did not meet the exceptional circumstances for the trial court not proceed with the matter. I have no reason to disturb the trial court’s finding on the basis that it had recused itself and later proceeded with the matter. I find the ground raised by the appellant untenable.
Regarding whether the prosecution proved the that the complainant sustained grievous harm, the complainant testified that the appellant hit him with a metal rod on his right index finger injuring him which injury resulted to the amputation. The doctor who examined him found that the complainant sustained grievous harm. Am convinced that there is sufficient evidence to prove that the assault occasioned on the complainant resulted to grievous harm within the meaning of Section 4 of the Penal Code.
The second element for consideration is whether the harm occasioned on the complainant was caused unlawfully, in the sense that there was without legal justification. In the instant case the only evidence adduced by the prosecution on how the incident happened is that of the complainant alone. The complainant said there were other people digging trenches. He chose not to call any one of the persons who witnessed the incident to corroborated his evidence. His evidence remained uncorroborated. On the other hand, the appellant called four witnesses. DW2 who went to the scene told the court that he found the appellant and the complainant in a scuffle. The complainant was urging his dog to attack the appellant. this was corroborated by the other defence witnesses. It is also noteworthy that the complainant was evasive in his testimony. At some point he said he did not know the appellant but the entire evidence tendered showed that the complainant and the appellant were known to each other. The complainant’s evidence looked against the appellant’s defence raised by the appellant raised credibility of the complainant. It was obvious from the evidence tendered that there was a grudge between the appellant and the complainant. There were allegations and counter allegation of assault between the complainant and the appellant. It also emerged that the complainant had over time threatened the appellant to an extend of using his dog to charge on the appellant. it was also evident that the appellant was also injured. It can only be assumed that the appellant got injured when defending himself from the complainant. This was a clear case of provocation and the assault, if at all it occurred, cannot be said to have been unlawful.
Further to the foregoing, and as rightly submitted by the appellant, the photographic evidence relied by the prosecution was produced contrary to Section 106B of the Evidence Act. Moreso, the complainant said he is the one whop took the photographs. It would have been prudent for the prosecution to adhere to the provisions of Section 106B of the Evidence Act. The trial court therefore faulted on relying on the same.
Further to the aforesaid, I have looked at the trial court judgment and I note that the court did not consider the defence raised by the appellant. The court was absolutely mandated to evaluate all the prosecution’s evidence alongside the appellant’s defence. Failure to do so did not only invalidate the conviction, but it was in violation of the right to fair trial under Article 50(2) of the Constitution. It cannot be gainsaid that the burden of prove lies with the prosecution and the standard is that of beyond reasonable doubt. The court was therefore obliged to weigh the prosecution’s evidence alongside any exculpatory evidence or innocence explanation provided by the appellant. I dare say that the trial court failed in its duty. This raises doubt in the prosecution case and that doubt must be resolved in favour of the appellant.
From the foregoing, I find that the prosecution failed to prove the charges against the appellant beyond reasonable doubt and the appeal herein is merited. The conviction and sentence are hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 10 th day of June, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for the respondent
Ms. Millicent Otwo Court Assistant.
2
Introduction
The appellant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code. The particulars were that on the 17 th day November, 2023 at Majengo area in Malindi Sub County within Kilifi County willfully and unlawfully did grievous harm to Doorie Mohamed Mirza by amputating his right index finger.
The appellant pleaded not guilty to the charges when he was arraigned in court. The case proceeded for hearing with the prosecution calling three (3) witnesses. The appellant was placed on his defence. He gave a sworn statement and called four witnesses. In a judgment delivered on 4 th February, 2026 the trial magistrate found the appellant guilty and convicted him accordingly. Subsequently on 17 th February, 2026 the trial magistrate sentenced the appellant to serve five (5) years imprisonment. The appellant was aggrieved by the conviction and sentence and preferred this appeal.
The appellant in amended memorandum of appeal raised eleven (11) grounds of appeal to wit:
1. That the learned trial magistrate erred in both law and fact in proceeding to hear the matter after he had substantively recused himself from the same;
2. That the learned trial magistrate erred in both law and fact in proceeding to sentence and convict the appellant based on evidence that had glaring omissions, gaps and was not clear;
3. That the learned trial magistrate erred in both law and fact in proceeding to convict and sentence the appellant on evidence that was insufficient, contradictory and uncorroborated;
4. That the learned trial magistrate erred in both law and fact in disparaging the defence proffered by the appellant hence shifting the burden of proof to the appellant;
5. That the learned trial magistrate erred in law and fact by finding in the judgment that injuries were sustained from ‘mob’ which finding was a total departure from the evidence of both the prosecution and the defence, as no witness ever mentioned the presence of a mob at the scene;
6. That the learned trial magistrate erred in law and fact by ignoring evidence of subsequent life-threatening attack where the complainant used a makeshift gun-like tool against the appellant, which established the appellant’s reasonable fear and the complainant’s history of violence;
7. That the learned trial magistrate erred by failing to consider the multiple OB Numbers and police reports filed by the appellant, which documented a continuous pattern of aggression and subsequent attacks by the complainant;
8. That the learned trial magistrate erred by failing to evaluate photographs of injuries sustained by the appellant, which corroborated his testimony of being under attack by an armed aggressor and trained dog;
9. That the court failed to address the 24-day delay between the incident and the complainant’s medical treatment, creating doubt as to whether the injuries was caused by the appellant;
10. That the court erred by imposing a harsh sentence of 5 years while ignoring the pre-sentence report recommending non-custodial supervision;
11. That the learned trial magistrate erred both in law and fact in proceeding to convict and sentence the appellant after relying on photos produce in the absence of a certificate as required by Section 106B of the Evidence Act;
Prosecution Case
PW1 the complainant testified that on 7 th November, 2023 at around 10pm he was walking his dog around when the appellant whom he did not know came with his Tuk Tuk and stepped on his dog’s chain. His dog was unable to walk as a result and it squatted to the ground. The appellant took a metal rod and hit the dog with it and the dog died on the spot. He then hit him with the metal rod on the head injuring him. He tried to hit him a third time but he blocked him with his right hand and he hit his index finger cutting it off completely. There were some people digging trenches who came to his rescue. The appellant tried to drive away his Tuk Tuk but a friend came in a motorcycle and carried him away leaving his Tuk Tuk behind. The complainant said the appellant carried away the metal rod. He went for treatment at Malindi Sub County Hospital for treatment where he was advised to report the matter to the police. He reported the matter to the police and went back to the hospital where he was treated. After three days the finger got infected and the hospital recommended amputation which was done. He continued with treatment and later on 30 th January, 2024 he was issued with a P3 Form which was filled at Malindi Sub County hospital. The investigating officer later went to the scene. He said photographs were taken by eye witness of his injuries and his dog who sent them to him via WhatsApp and were certified by the police. The appellant was later arrested. The complainant said he did not know the appellant, but he had previously hit him and he lost a tooth. He said he saw the appellant for the first time on 25 th December, 2022. He denied that he had bad blood with the appellant. He also alleged that on 26 th December, 2022 the appellant surrounded him and beat him with his friends.
On cross-examination he maintained that on the material day the appellant stepped on the chain of his dog then hit it. He denied commanding the dog to attack the appellant. He said he discovered that he had a grudge with the appellant after the incident as each time the appellant saw him on the road, he would show him the middle finger. He said he did not have a weapon and it is the appellant who beat him first. He said the appellant was injured when running away from the mob. He said he could not trace the people who were digging trenches as they were casuals and he did not have their contacts. He said when he went to hospital, he could not be treated because he did not have an OB. He maintained that after three days the doctors recommended amputation. He said the incident happened in a quiet road near his house but there not many people. He said he did not have any eye witnesses.
PW2 investigated the case. He said the case was the case was reported at the station and he commenced investigations by recording statement from the complainant. He also visited the scene at Majengo area. He narrated how the complainant was treated in various hospitals. He stated that the complainant had injuries on his right-hand index finger which was eventually amputated. He said the complainant identified the appellant as the one who assaulted him after they met at Majengo area. The complainant narrated to him how the incident happened. He issued the complainant wit a P3 Form which was later filled by the doctor. He said after arresting the appellant he interrogated him and recorded his statement and noted that the two had differences. He noted that the appellant had also lodged a complaint against the complainant. He testified that it is the differences between the two that escalated to the appellant assaulting the complainant.
On cross-examination he said the incident was reported on 7 th November, 2023 and the complainant had injuries on his head and right hand. He said he issued the complainant with a p3 Form which was filled. He said he recorded the statement after the complainant was treated. He said there were eye witnesses but they were unwilling to record statements. He confirmed that there was bad blood between the complainant and appellant.
PW3 testified on behalf of his colleague Dr. Ibrahim who filled the P3 Form. He stated that treatment notes showed that the complainant was treated at Kisauni Dispensary and Murima Maternity hospital. He said that according to the PW3 Form, the complainant had a cut wound on his forehead and wound on the right index finger that led to amputation. The conclusion of medical examination was that the complainant sustained grievous harm. He produced the P3 Form and treatment notes as exhibits.
On cross-examination he said the treatment book did no show that the complainant was treated at Malindi Sub County Hospital. He approximated the injuries to be three months old.
Defence Case
DW1 the appellant testified that on 7 th November, 2023 he was at Tuk Tuk stage in Majengo area around 11.45am when the complainant passed there smiling. The complainant made a U-turn and after 4 to 5 minutes a child came and told him that Mzee Ali wanted him to go and pick him. He went to Mzee Ali and found Mzee Ali was not there. He waited for him. Shortly the complainant came from behind and told him that he will kill him. The complainant had a steel and a large dog. He told the dog to attack him. The people who were at the scene ran away. The complainant then used a pipe to hit him on the forehead and he started bleeding. He took photos of the injuries he sustained. At the time the dog was trying to attack him. As the other people who were at the scene ran away, Magalo came and tried to stop the complainant from attacking him. The complainant threatened Magalo and he ran away and he was left alone with the complainant and the complainant’s dog. He hit the dog on the head because it was still charging on him. Magalo came back and he told him to go to the stage and get other drivers. The complainant continued threatening him and Magalo. Later Philip and Samuel came and they contained the complainant. He went to hospital for treatment where he met with the complainant who continued threatening him. After treatment he reported the matter including previous attacks by the complainant to the OCS. Later he was called by the OCPD and informed that he had been charged. He alluded to other assault cases and identified a P3 Form issued to him on 7 th January, 2023. He also identified a photo of something which looked like a pistol which the complaint has used to threaten him. He also informed the trial court that he had shared the information of threats by the complainant with the ODPP.
On cross-examination he maintained that the complainant attacked him and threatened his dog to attack him which he used to walk around with. He said Magalo was the first person to come to the scene and assist him. He witnessed the complainant beating him and went to get other Tuk Tuk drivers. He said the encounter lasted about 30 minutes.
DW2 Wycliffe Ochieng Magalo said he heard noise around 11am and when he went to check he found the appellant and the complainant in a scuffle. He told the court that he saw the complainant with a steel rod and he was urging his dog to attack the appellant. The appellant went to his Tuk Tuk and took a steel rod and hit the dog. He said the complainant hit the appellant on the forehead with a steel rod. The complainant then went and came with a panga. The people who were at the scene ran away. He called other Tuk Tuk drivers to scene.
DW3 Adam Abdulmalik told the trial court that on the material day he was called by Philip who informed him that the appellant had been attacked. He went to the scene but did not find anyone. He was informed that the appellant had gone to the hospital. He went to the hospital and found the appellant bleeding from his head. The complainant came to the hospital also and threatened the appellant. He however said he did not witness the incident save for finding the appellant in the hospital.
DW4 Philip Otieno told the trial court that on the material date he was called by Simon a boda boda rider who told him the appellant had been injured. He went to the scene and found the complainant holding his dog. He found the appellant bleeding from the forehead. They took him to the police station where they were told to go to hospital first for treatment.
Appellant’s Submissions
The appellant in his submissions cited contradiction in the testimony of the complainant submitting that even though the complainant said he did not know the appellant in his testimony, but stated that he had differences with the appellant meaning the complainant knew the appellant before the incident. Further the appellant submitted that the trial court relied on the photographic evidence in the absence of a certificate contrary to Section 106B of the Evidence Act. He relied on the case of Republic vs John Ochieng (2021) e KLR. The appellant further faulted the trial court for proceeding to hear the matter after substantively recusing itself thus denying the appellant right to fair trial. He relied on the case of Porter vs Magill. Further the appellant submitted that the trial court failed to consider the appellant’s defence thus shifting the burden of proof from the prosecution to the appellant.
The respondent did not file submissions. The respondent relied on the evidence on record and urged the court to enhance the sentence as the same was lenient considering the gravity of the offence which provides for life sentence.
Analysis and Determination
This being the first appeal, the duty of this court is to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent conclusion without overlooking the fact that it did not have the opportunity to hear and see the witnesses testify in court. This cardinal principle was laid down in the case of Okeno vs Republic (1972) E.A where the court held:
‘All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court independently to draw its own conclusions of course without overlooking or disregarding the findings of made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Further to the foregoing it must also be remembered that the prosecution bears the burden to prove the charges against an accused person beyond reasonable doubt. Therefore, the issues for determination in this case are:
a) Whether the prosecution proved its case beyond reasonable doubt;
b) Whether the defence raised placed doubt on the prosecution’s case; and
c) Whether the sentence imposed was lawful.
The appellant was charged with the offence of causing grievous harm. The offence of causing grievous harm is provided for under Section 234 of the Penal Code which provides:
“Any person who unlawfully does grievous harm to another is guilty of a felony and liable to imprisonment for life.”
Thus, to secure conviction for an offence of causing grievous harm, the prosecution must establish the following essential ingredients:
i) The victim sustained grievous harm;
ii) The harm was caused unlawfully; and
iii) Whether the accused caused or participated in causing the harm.
Grievous harm is defined under Section 4 of the Penal Code to mean:
“’Grievous harm’ means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely to so injure health, or which extends to permanent or serious injury to any external or internal organ, membrane or sense.”
Therefore, the specificities of grievous harm are the injury to health must be permanent or likely to be permanent.
First and foremost, the appellant asserted that the trial court proceeded with the matter after it had recused itself. I agree with the appellant that once a court recuses itself it cannot proceed with the matter. However, the court can only recuse itself where there are exceptional circumstances. In this case the court upon recusing itself, it referred the matter to the Chief Magistrate who upon perusal of the complaint raised by the complainant found that the same did not meet the exceptional circumstances for the trial court not proceed with the matter. I have no reason to disturb the trial court’s finding on the basis that it had recused itself and later proceeded with the matter. I find the ground raised by the appellant untenable.
Regarding whether the prosecution proved the that the complainant sustained grievous harm, the complainant testified that the appellant hit him with a metal rod on his right index finger injuring him which injury resulted to the amputation. The doctor who examined him found that the complainant sustained grievous harm. Am convinced that there is sufficient evidence to prove that the assault occasioned on the complainant resulted to grievous harm within the meaning of Section 4 of the Penal Code.
The second element for consideration is whether the harm occasioned on the complainant was caused unlawfully, in the sense that there was without legal justification. In the instant case the only evidence adduced by the prosecution on how the incident happened is that of the complainant alone. The complainant said there were other people digging trenches. He chose not to call any one of the persons who witnessed the incident to corroborated his evidence. His evidence remained uncorroborated. On the other hand, the appellant called four witnesses. DW2 who went to the scene told the court that he found the appellant and the complainant in a scuffle. The complainant was urging his dog to attack the appellant. this was corroborated by the other defence witnesses. It is also noteworthy that the complainant was evasive in his testimony. At some point he said he did not know the appellant but the entire evidence tendered showed that the complainant and the appellant were known to each other. The complainant’s evidence looked against the appellant’s defence raised by the appellant raised credibility of the complainant. It was obvious from the evidence tendered that there was a grudge between the appellant and the complainant. There were allegations and counter allegation of assault between the complainant and the appellant. It also emerged that the complainant had over time threatened the appellant to an extend of using his dog to charge on the appellant. it was also evident that the appellant was also injured. It can only be assumed that the appellant got injured when defending himself from the complainant. This was a clear case of provocation and the assault, if at all it occurred, cannot be said to have been unlawful.
Further to the foregoing, and as rightly submitted by the appellant, the photographic evidence relied by the prosecution was produced contrary to Section 106B of the Evidence Act. Moreso, the complainant said he is the one whop took the photographs. It would have been prudent for the prosecution to adhere to the provisions of Section 106B of the Evidence Act. The trial court therefore faulted on relying on the same.
Further to the aforesaid, I have looked at the trial court judgment and I note that the court did not consider the defence raised by the appellant. The court was absolutely mandated to evaluate all the prosecution’s evidence alongside the appellant’s defence. Failure to do so did not only invalidate the conviction, but it was in violation of the right to fair trial under Article 50(2) of the Constitution. It cannot be gainsaid that the burden of prove lies with the prosecution and the standard is that of beyond reasonable doubt. The court was therefore obliged to weigh the prosecution’s evidence alongside any exculpatory evidence or innocence explanation provided by the appellant. I dare say that the trial court failed in its duty. This raises doubt in the prosecution case and that doubt must be resolved in favour of the appellant.
From the foregoing, I find that the prosecution failed to prove the charges against the appellant beyond reasonable doubt and the appeal herein is merited. The conviction and sentence are hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 10 th day of June, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for the respondent
Ms. Millicent Otwo Court Assistant.
2