(Being an appeal from the judgment dated 30th September 2024 and sentence of the senior principal Magistrate’s court at Mumias given on 31/10/24 by the Honourable G.P Omondi in Mumias senior principal magistrate Court Case No. 467 of 2020)
1. The appellants herein had been charged with the offence of grievous harm contrary to section 234 of the Penal Code.
2. The particulars are that on 12th November 2020, at around 1000 hours at Lairi Village, Koyonzo location in Matungu sub-county within Kakamega county, the accused persons unlawfully did grievous harm to Ibrahim Wakhayanga Nanjira.
3. The appellants herein pleaded not guilty, and the prosecution commenced its case, calling 11 witnesses in support of its case. At the close of its case, the trial court found that the prosecution had established a prima facie case, and the defence had four witnesses.
4. The trial court, upon analysing the evidence and the witnesses, found that the accused persons were guilty and convicted them. He sentenced each of the accused to 10 years' imprisonment.
5. The appellants, being dissatisfied with the judgment of the trial court, filed the present appeal based on the following grounds;
a) THAT the prosecution in this case clearly failed to discharge the burden of proof to the required standard, which in this case is beyond a reasonable doubt.
b) THAT the trial Magistrate on record erred in law and in fact in convicting the appellants when the evidence on record was manifestly insufficient, inconsistent and had obvious gaps.
c) THAT the trial magistrate made findings that reflected his own personal feelings and opinions instead of analysing the evidence and strictly applying the law.
d) THAT the trial magistrate should have noticed, as everyone else did on talking to the 2nd appellant, that he was mentally incapacitated and could not understand the charges against him.
e) THAT the trial magistrate gravely erred in law and in fact by allowing a mentally incapacitated man to undergo the entire trial without ordering a mental assessment report.
f) THAT the trial magistrate erred and made his opinion and findings on matters and facts which had not been placed into evidence by the prosecution.
g) THAT the trial magistrate erred in law and in fact and misconstrued the evidence tendered.
h) THAT the learned magistrate’s decision is against the rules of fair play and natural justice and is against the weight of evidence.
i) THAT the decision of the Learned Magistrate is unjust and unfair and was arrived at on wrong principles.
j) THAT the Learned Trial Magistrate erred in law and fact in failing to take into account the Appellant’s defence and submissions.
k) THAT the learned Trial Magistrate erred in law and fact in failing to consider all the evidence, pleadings, facts and law before him and failing to make a finding on every issue raised by the parties.
l) THAT the learned trial magistrate erred in law in making the decision he made without considering the matter properly, and in assigning no good reasoning for his decision.
m) The Learned Trial Magistrate erred in law and in fact in making his decision without considering all the facts before him and ignoring his paramount duty as well as his inherent powers of doing substantial justice in the matter, having regard to all the circumstances of the case.
n) In his consideration of law and facts before him, the learned trial magistrate misdirected himself and erred in coming to his decision on wrong principles, thus working hardship to the appellant that occasioned miscarriage of justice.
o) The learned Trial Magistrate’s decision is unfair and unjust and cannot be maintained as it is contrary to the interest of justice.
p) THAT the learned Magistrate erred in law and fact in failing to give the appellant opportunity to adduce proper evidence, and that there were material facts not considered.
6. They pray that the appeal be allowed and the judgment by the Hon. Trial Magistrate be set aside.
7. The appeal was canvassed by way of written submissions.
Appellant’s submissions.
8. In their submission dated 6th October,2025, the appellant avers that the lower court erred in relying on the prosecution's witness, which was marred with inconsistencies. On PW1 evidence, he claimed that he referred to the accused by wrong names and further that he could not identify which weapons were used to attack him. He avers that the complainant could not identify who attacked him, what they were wearing or the weapons they used to attack him.
9. On PW2 evidence, he claimed that he identified the Complainant as Abdalla Amere, who was attacked, and he was not able to identify the weapons used to attack the victim.
10. On the evidence of Pw3, he stated that the injury was two weeks old and that the patient was not there when the P3 form was being filed. They further aver that Pw4 claimed that the complaint was attacked with a stone.
11. The appellant avers that the prosecution's case was marred with inconsistencies on who attacked him and the weapons used, and hence the contradictions, the prosecution failed to prove its case beyond a reasonable doubt.
12. He cited the case of John Nyaga Njuki & 4 others vs. Republic Criminal App. No.160 of 2000.
13. They aver that the trial court failed to consider the defence case .
14. They finally submit that the evidence produced by the prosecution was not sufficient to find the accused persons guilty, and that the conviction ought to be vacated.
Evidence in brief
15. PW1 was the complainant. He recalled that on 12/11/2020 at 10.00 a.m. She was informed that is farm's help had been chased away by the three accused, and when he went to investigate why the accused chased his workers. She found the three accused, who were armed with a jembe, a panga and a knife.
16. He claimed that when he inquired as to why they chased his workers, the three accused attacked him with a knife and panga until he lost consciousness and was taken to the hospital, where he was admitted for two weeks. He produced the discharge summary form, the P3 form and photographs showing his injuries as exhibits.
17. During cross-examination, he denied having had any land dispute with the three accused persons, who were brothers and stated that he never knew why the three attacked him. He stated that he was attacked by the three, although he was not able to identify who hit him and which part of the body.
18. PW2 testified that on the material day, they had sent a farm hand to assist them in cultivating the land, but he was chased away by the accused. When he and PW1 went to see what happened, they found the three accused, who were armed with a panga and jembe, attacked them until PW1 lost consciousness.
19. He testified that they took PW1 to the hospital, and they were later referred to the referral hospital, where the complainant was admitted due to the severity of the injuries.
20. During cross-examination, he stated that Abdalla Wamere’s land was next to the accused persons. He testified that he could not tell who cut PW1 which part of his body from the attack. He denied there being any dispute between the accused persons and Pw1 over land .
21. PW3 was Dr. Jarius Amunga, who examined the patient, Ibrahim Wakhanyanga, aged 69 years on 12/11/2020, who had history of being assaulted by persons known to him. He had a deep cut on the head and was bleeding, and had a swollen left eye. He was unconscious, a CT scan was done referred the patient to Moi Teaching and Referral Hospital in Eldoret for further treatment. He produced the P3 form, marked PEX 6, and treatment notes as PEXH 7.
22. During cross-examination, he said he relied on the treatment notes which showed that the complainant was hit by a blunt and sharp object that fractured his brain.
23. He indicated that the patient had cut wounds on the forehead and had a brain injury the x-ray showed a depressed skull fructure.
24. PW4 was Abdalla Wamera Nanjira. He testified that the complainant was his brother, while the accused were his neighbours. He recalled that on 12/11/2020 at around 10.00 p.m., Pw1 came to inform him that someone was ploughing his land and was later chased. He stated that he went with Pw1 to the farm the suspects came armed, the 2nd accused with a panga and the 3rd accused with a jembe.
25. He testified that the suspects attacked Pw1 with their weapons. He stated that his brother, who was around, took him to the hospital, and he reported the incident to the police, Pw1, who was unconscious, was rushed to the hospital. On cross-examination, he testified that he lived 500 meters away from the accused persons, and so did the complainant. He testified that the 3rd accused hit the accused with a jembe, although his statement did not say that. He stated that Pw1 was injured on the head eyes, nose and ears bled.
26. PW5 was Hussein Munyendo, testified that PW1 was his brother and the accused were his neighbours. He recalled that on 12/11/2020, between 9-10.00 a.m., he was at home when Pw1 came and informed them that his worker had been chased away from their farm, and he wanted to go and see why he had been chased away. He stated that they went with PW1, his cousin and elder to find 1st accused was armed with a panga, the 2nd accused with a jembe and the 3rd accused was armed with a jembe and a panga they started attacking Pw1. The 2nd accused attacked him with the base of the jembe, while the 3rd accused attacked him with the sharp side of the jembe, 1st accused hit him with a stone, they left him bleeding and unconscious. He testified that they took him to the hospital and was later referred to Kakamega General, He had a broken skull, he was later referred to Moi Teaching Referral Hospital in Eldoret, where he underwent a couple of surgeries. He stated that the dispute has been persistent since 2017.
27. On cross-examination, he testified that the three attacked PW1. The 1st accused attacked him with stones also while the 2nd accused used the back of his jembe. PW1 became unconscious and was admitted for three days in Eldoret.
28. PW6 was Dr. Kanje, a neurosurgeon. He testified that he treated PW1, who suffered a brain injury and frontal tension pneumocephalus. He testified that Pw1 was admitted at Kenyatta Hospital on 25/12/2020 and had leakage of urine and his renal nerve was paralysed for three days on the left side. That the CT scan showed he had a skull fracture injury to the left frontal side.
29. He had a severe headache, later he regained consciousness, he was paralysed on the left side of his face.
30. During cross-examination, he confirmed that PW1 had a deep skull fracture on the left side of the head. He stated that the patient came for review after his speech came back. That the patient had recovered to 5 inches, which was normal.
31. PW7 was Pc Fredrick Rono on 13/11/2020. He claimed that he received a report from Abdalla and Rashid from Lairi village about the attack, and they visited the scene and found the complainant injured on the head. He visited the complainant at St. Mary's hospital and confirmed that the accused attacked him. During cross-examination, he confirmed that he investigated the case after the incident and stated that the patient had a bandage on his head and so he could not determine the extent of the injuries. He confirmed that there was no evidence that the accused interfered with the crime scene, and he received the blood-stained clothes from Pw1's wife on reexamination. He stated that he arrested the accused after the evidence of PW2 and PW3, who were with the complainant, who was attacked and the report was sent to the vigilance house.
32. PW8 was Dr. Timothy Koech, who is a certified neurosurgeon. He confirmed that he treated the complainant who underwent a brain surgery since his brain was swollen and the surgery was to reduce the bleeding and pressure in the brain. He testified that the complainant stayed in the ICU for two weeks. He produced the Bill as PExh 2, inpatient discharge summary-pex1 and transfer for PExh 5.
33. At cross-examination, he stated that he never knew when the complaint came to the hospital and confirmed that he treated the complainant, who had multiple injuries and was in the ICU for a while.
34. PW9 was Julian Oluana, PW1's son, who testified that he received a call that his father had been injured with crude weapons and was paralysed and unable to talk. He confirmed that he took him to Nairobi and referred him to Top Hill and later Kenyatta Hospital for a CT SCAN, where they were informed that the leakage of the skull was because of a broken skull, and they went for surgery and were later discharged after 4 days.
35. During cross-examination, he confirmed that he was not at the scene but was only informed what happened and stated that the complainant still suffers convulsions.
36. PW10 testified that on 12/11/2022, the three accused threw stones at him after he had worked in the farm for PW1. he claimed that he went to inform PW1 what had happened, and he later learnt that the complainant had been injured, although he never knew who had injured him.
37. PW 11 was Victor Simiyu, the clinical officer. He produced the discharge summary and invoice for Ibrahim Wakha and confirmed the discharge summary was filed by Dr. Ainable Nyaibahwe dated 15/22/2020- PExh 3.
38. During cross-examination, he produced a card showing that he worked at St. Mary’s hospital, and produced the report by Dr. Ainable showing the complainant was admitted on 15/11/2020 and discharged on 21/11/2020.
39. The prosecution closed its case, and in a ruling dated 3/8/2023, the trial court found that the prosecution had established a prima facie case and placed the accused on their defence.
40. DW1 Douglas Oscar Otawa, who gave a sworn statement. He testified that on 12/11/2020 he was at home waiting to go to work when he learned that his brother was in a confrontation and when he went to investigate found that the 2nd accused had swollen head and 4 old men and 3 young men were leaving the scene and denied attacking the complainant and claimed he took the 2nd accused to the hospital and that the 3rd accused is a student at Muliro university and should be dismissed.
41. During cross-examination, he stated that the 2nd accused informed him that the complainant had attacked him and denied having a grudge with him.
42. DW2 was Samson Waswa. He confirmed that on 12/11/2020, he was at home when a salesman from Azuri Solar came to his house, and when they went to the market, he saw an old man cutting Napier grass with 3 old men and 3 young men.
43. He claimed that the complainant, who was cutting the napper, hit him with a stick until he bled and that he went to Matungu hospital for treatment.
44. He denied assaulting the complainant, stating that the complainant had hit him.
45. DW3 was Ronald Ngala. He testified that on 12/11/2020, he arrived home at around 10.30 a.m. and found that the 2nd accused, his wife and mother and that the 2nd accused were in a bad condition, and he was taken to Matungu hospital and treated.
46. He stated that he was never at the crime scene and did not know what happened.
47. On cross-examination, the witness avers that the complainant framed him in the case and denied having a grudge with the complainant.
48. DW4 was Inspector Maurine Makotsi. She testified that on 12/11/2020, she received an assault report from Samson Waswa, where he stated that while on his farm, Jeffrey Wahayanga came to him and started attacking him, and he was advised to seek medical attention at Matungu sub-county hospital, where he was issued the P3 form.
49. During cross-examination, she confirmed that a report was lodged and the complaint was issued with an OB no. 06/12/11/2020, although no witness was called to confirm their case, and no documents were produced.
50. The defence closed its case.
51. The trial court, upon analysing the witnesses from both the prosecution and the defence, found that the prosecution had proved all the elements to prove the offence beyond a reasonable doubt and convicted them and sentenced the three to serve 10 years' imprisonment.
52. The appellants, being aggrieved by the sentence and the conviction, appealed against the trial court's decision.
Analysis and determination
53. This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its conclusion on that evidence. The court should however, bear in mind that it did not see witnesses testify and give due consideration to that. (See Okeno vs. Republic [1972] EA 32).
54. I have gone through the charge sheet, the evidence, and the submissions. First of all, I shall consider whether the prosecution has established beyond reasonable doubt the charge of grievous harm contrary to section 234 of the Penal Code. The essential ingredients of the offence of murder required to be proved by the prosecution against the accused stand as follows:
55. Section 234 of the Penal Code criminalises unlawfully doing grievous harm. It states that: Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.
56. In their appeal and submissions, the appellants avers that the prosecution case and witness testimony was marred with contradictions which he highlighted as follows; PW1’s, the complainant’s inability to specify who among the three accused persons wielded which weapon or what exactly they had worn during the attack; PW2’s reference to victim as “Abdalla Amere” stating that he never knew the name of the victim; PW3’s note on injury age which according to his testimony Was two weeks old; PW4’s claim that the victim was attacked by a stone and not knowing the exact weapon that was used.
57. This court has meticulously reviewed the trial court record and the witnesses’ testimony. The standard of proof remains proof beyond a reasonable doubt, as enshrined in section 107 of the Evidence Act, Cap. 80, and affirmed in Woolmington v DPP [1935] AC 462 (adopted in Kenyan jurisprudence via Barasa v Republic [1982-88] 1 KAR 315). However, not every inconsistency vitiates a conviction; only material contradictions going to the root of the case warrant interference. In Twehangane Alfred v Uganda [2003] UGCA 6, cited with approval in Joseph Maina Mwangi v Republic [2000] eKLR, courts have held that minor inconsistencies do not vitiate a conviction unless they go to the root of the charge.
58. In this case, the identification of the appellants occurred in favourable conditions and was made by neighbours personally familiar to PW1, PW2, PW4, and PW5. These witnesses lived only about 500 meters from the attackers and shared a boundary with them, making the recognition clear and reliable. Such circumstances satisfy the criteria for dependable visual identification in daylight as set out in Maitanyi v Republic [1986] KLR 198. About the weapons that the appellants had used, which were a panga, a jembe, and a knife or stone, were identified in the evidence of PW1, PW2, PW4, and PW5, and the same were corroborated by medical reports indicating both blunt and sharp force injuries leading to a depressed skull fracture, as confirmed by PW3, PW6, and PW8. PW2’s reference to “Abdalla Amere” was simply a mistaken rendition of PW4’s name, and it did not invalidate who the victim was, and as such, it did not undermine the credibility or substance of the testimony. PW3’s observation that the injuries appeared “two weeks old” is best understood as describing the healing stage noted during the examination, which is consistent with the recorded admission date of 15 November. Further, PW4’s mention of a stone accords with PW5’s evidence and serves to enhance, not contradict, the overall account presented by.
59. The medical evidence by the medical practitioners from St. Mary’s (PW3, PW11), Kakamega General (PW8), to Eldoret/MTRH and KNH (PW6) –unequivocally proved that the complainant had suffered grievous harm under section 234 Penal Code: “bodily injury... of such a nature as to endanger life or cause suffering of such a degree as to render the victim incapable of following his ordinary pursuits” the land dispute as was admitted by PW5 since 2017showed that there was motive and was unproven by defence beyond bare denial.
60. The alleged inconsistencies by the appellant did not disprove.
a) whether an assault occurred,
b) whether PW1 suffered grievous harm, or
c) whether the appellants were present and armed.
61. The prosecution's four eye witnesses, PW1, PW2, PW4 and PW5, were at the scene, and they all placed the three appellants at the scene, armed with sharp and blunt weapons, and attacking the complainant. I do note that, yes, there were small divergences among the witnesses on the weapons on the victim. It is only natural and expected that, in a violent and chaotic scene, the witnesses keep track of the weapons that are being used, given the situation.
62. The defence submitted that PW1 was the one who attacked DW2 with a stick, causing him to bleed. I find it hard that a 69-year-old man would attack the witness, causing him to sustain life-threatening injuries. DW4’s
OB entry lacks corroboration, as admitted. Moreover, the prosecution proved that all three appellants were the aggressors, corroborated by multiple eyewitnesses.
63. In David Njuguna Wairimu v Republic [2010] eKLR, courts held that a defence that is an afterthought, uncorroborated and inconsistent, can be safely rejected.
64. I find no merit in this ground.
65. The appellant further raised the claim of mental incapacity of the 2nd appellant, stating that they were to be subjected to a mental assessment under section 12 of the Penal Code (insanity defence) or section 163 Criminal Procedure Code (capacity inquiry. Throughout the trial proceedings, the appellants were represented by counsel, and from the beginning of the trial, the appellant's counsel never raised the claim of mental incapacity or produced any evidence to support their claim.
66. The claim that the trial court should have made the same observation is unfair, considering the court is not an expert in mental assessment, and it cannot be stated to be obvious to everyone.
67. I note that the 2nd appellant gave coherent evidence. He gave a sworn testimony on 12th November 2020 events, market visit, Napier grass cutting, and stick assault under oath, and was cross-examined without difficulty. He took a plea of not guilty, and further, the defence ruling proceeded unremarked. The appellant’s counsel has now raised this novel issue at his appeal. Article 50(2)(n) Constitution guarantees a fair trial, including capacity assessment where raised timely, but ambushing the insanity claim post-conviction offends justice.
68. There was no medical report presented at the trial court, no application by counsel, nor any submission indicating mental incapacity. The 2nd appellant actively participated in the proceedings, cross-examined witnesses, and testified in his defence.
69. In Republic v Musyoka Nzoka [2018] eKLR, the court held that a bare allegation of mental illness without supporting medical evidence cannot obligate a trial court to initiate a mental inquiry.
70. This ground hence fails.
71. On the sentence , the maximum sentence for the offence of causing grievous harm is life imprisonment, though the Appellant were first offenders, the complainant sustained serious life-threatening injuries a fact which informed the trial court to impose the sentence of 10 years imprisonment upon the Appellants given the gravity of the offence and the reasons advanced by the trial court in meting out the sentence I find there is no reason to interfere with this sentencing. It is proportional to the crime committed.
72. From the foregoing re-evaluation of the record, statutory provisions and case law, I find no misdirection, no legal error and no basis to fault the conviction or the sentence. The trial court properly analysed the evidence, gave cogent reasons and reached a sound and lawful conclusion.
73. The appeal is therefore devoid of merit and I do dismiss it.
74. Bonds cancelled.
75. Orders accordingly.
76. Right of Appeal 14 days explained.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 19th DAY OF MARCH, 2026.
S.MBUNGI
JUDGE
In the presence of:-
CA: Angong’a/Velma/Zilda
Ms Mburu for the Appellants present.
Appellants present.
Ms Kiu for ODPP present online.
1. The appellants herein had been charged with the offence of grievous harm contrary to section 234 of the Penal Code.
2. The particulars are that on 12th November 2020, at around 1000 hours at Lairi Village, Koyonzo location in Matungu sub-county within Kakamega county, the accused persons unlawfully did grievous harm to Ibrahim Wakhayanga Nanjira.
3. The appellants herein pleaded not guilty, and the prosecution commenced its case, calling 11 witnesses in support of its case. At the close of its case, the trial court found that the prosecution had established a prima facie case, and the defence had four witnesses.
4. The trial court, upon analysing the evidence and the witnesses, found that the accused persons were guilty and convicted them. He sentenced each of the accused to 10 years' imprisonment.
5. The appellants, being dissatisfied with the judgment of the trial court, filed the present appeal based on the following grounds;
a) THAT the prosecution in this case clearly failed to discharge the burden of proof to the required standard, which in this case is beyond a reasonable doubt.
b) THAT the trial Magistrate on record erred in law and in fact in convicting the appellants when the evidence on record was manifestly insufficient, inconsistent and had obvious gaps.
c) THAT the trial magistrate made findings that reflected his own personal feelings and opinions instead of analysing the evidence and strictly applying the law.
d) THAT the trial magistrate should have noticed, as everyone else did on talking to the 2nd appellant, that he was mentally incapacitated and could not understand the charges against him.
e) THAT the trial magistrate gravely erred in law and in fact by allowing a mentally incapacitated man to undergo the entire trial without ordering a mental assessment report.
f) THAT the trial magistrate erred and made his opinion and findings on matters and facts which had not been placed into evidence by the prosecution.
g) THAT the trial magistrate erred in law and in fact and misconstrued the evidence tendered.
h) THAT the learned magistrate’s decision is against the rules of fair play and natural justice and is against the weight of evidence.
i) THAT the decision of the Learned Magistrate is unjust and unfair and was arrived at on wrong principles.
j) THAT the Learned Trial Magistrate erred in law and fact in failing to take into account the Appellant’s defence and submissions.
k) THAT the learned Trial Magistrate erred in law and fact in failing to consider all the evidence, pleadings, facts and law before him and failing to make a finding on every issue raised by the parties.
l) THAT the learned trial magistrate erred in law in making the decision he made without considering the matter properly, and in assigning no good reasoning for his decision.
m) The Learned Trial Magistrate erred in law and in fact in making his decision without considering all the facts before him and ignoring his paramount duty as well as his inherent powers of doing substantial justice in the matter, having regard to all the circumstances of the case.
n) In his consideration of law and facts before him, the learned trial magistrate misdirected himself and erred in coming to his decision on wrong principles, thus working hardship to the appellant that occasioned miscarriage of justice.
o) The learned Trial Magistrate’s decision is unfair and unjust and cannot be maintained as it is contrary to the interest of justice.
p) THAT the learned Magistrate erred in law and fact in failing to give the appellant opportunity to adduce proper evidence, and that there were material facts not considered.
6. They pray that the appeal be allowed and the judgment by the Hon. Trial Magistrate be set aside.
7. The appeal was canvassed by way of written submissions.
Appellant’s submissions.
8. In their submission dated 6th October,2025, the appellant avers that the lower court erred in relying on the prosecution's witness, which was marred with inconsistencies. On PW1 evidence, he claimed that he referred to the accused by wrong names and further that he could not identify which weapons were used to attack him. He avers that the complainant could not identify who attacked him, what they were wearing or the weapons they used to attack him.
9. On PW2 evidence, he claimed that he identified the Complainant as Abdalla Amere, who was attacked, and he was not able to identify the weapons used to attack the victim.
10. On the evidence of Pw3, he stated that the injury was two weeks old and that the patient was not there when the P3 form was being filed. They further aver that Pw4 claimed that the complaint was attacked with a stone.
11. The appellant avers that the prosecution's case was marred with inconsistencies on who attacked him and the weapons used, and hence the contradictions, the prosecution failed to prove its case beyond a reasonable doubt.
12. He cited the case of John Nyaga Njuki & 4 others vs. Republic Criminal App. No.160 of 2000.
13. They aver that the trial court failed to consider the defence case .
14. They finally submit that the evidence produced by the prosecution was not sufficient to find the accused persons guilty, and that the conviction ought to be vacated.
Evidence in brief
15. PW1 was the complainant. He recalled that on 12/11/2020 at 10.00 a.m. She was informed that is farm's help had been chased away by the three accused, and when he went to investigate why the accused chased his workers. She found the three accused, who were armed with a jembe, a panga and a knife.
16. He claimed that when he inquired as to why they chased his workers, the three accused attacked him with a knife and panga until he lost consciousness and was taken to the hospital, where he was admitted for two weeks. He produced the discharge summary form, the P3 form and photographs showing his injuries as exhibits.
17. During cross-examination, he denied having had any land dispute with the three accused persons, who were brothers and stated that he never knew why the three attacked him. He stated that he was attacked by the three, although he was not able to identify who hit him and which part of the body.
18. PW2 testified that on the material day, they had sent a farm hand to assist them in cultivating the land, but he was chased away by the accused. When he and PW1 went to see what happened, they found the three accused, who were armed with a panga and jembe, attacked them until PW1 lost consciousness.
19. He testified that they took PW1 to the hospital, and they were later referred to the referral hospital, where the complainant was admitted due to the severity of the injuries.
20. During cross-examination, he stated that Abdalla Wamere’s land was next to the accused persons. He testified that he could not tell who cut PW1 which part of his body from the attack. He denied there being any dispute between the accused persons and Pw1 over land .
21. PW3 was Dr. Jarius Amunga, who examined the patient, Ibrahim Wakhanyanga, aged 69 years on 12/11/2020, who had history of being assaulted by persons known to him. He had a deep cut on the head and was bleeding, and had a swollen left eye. He was unconscious, a CT scan was done referred the patient to Moi Teaching and Referral Hospital in Eldoret for further treatment. He produced the P3 form, marked PEX 6, and treatment notes as PEXH 7.
22. During cross-examination, he said he relied on the treatment notes which showed that the complainant was hit by a blunt and sharp object that fractured his brain.
23. He indicated that the patient had cut wounds on the forehead and had a brain injury the x-ray showed a depressed skull fructure.
24. PW4 was Abdalla Wamera Nanjira. He testified that the complainant was his brother, while the accused were his neighbours. He recalled that on 12/11/2020 at around 10.00 p.m., Pw1 came to inform him that someone was ploughing his land and was later chased. He stated that he went with Pw1 to the farm the suspects came armed, the 2nd accused with a panga and the 3rd accused with a jembe.
25. He testified that the suspects attacked Pw1 with their weapons. He stated that his brother, who was around, took him to the hospital, and he reported the incident to the police, Pw1, who was unconscious, was rushed to the hospital. On cross-examination, he testified that he lived 500 meters away from the accused persons, and so did the complainant. He testified that the 3rd accused hit the accused with a jembe, although his statement did not say that. He stated that Pw1 was injured on the head eyes, nose and ears bled.
26. PW5 was Hussein Munyendo, testified that PW1 was his brother and the accused were his neighbours. He recalled that on 12/11/2020, between 9-10.00 a.m., he was at home when Pw1 came and informed them that his worker had been chased away from their farm, and he wanted to go and see why he had been chased away. He stated that they went with PW1, his cousin and elder to find 1st accused was armed with a panga, the 2nd accused with a jembe and the 3rd accused was armed with a jembe and a panga they started attacking Pw1. The 2nd accused attacked him with the base of the jembe, while the 3rd accused attacked him with the sharp side of the jembe, 1st accused hit him with a stone, they left him bleeding and unconscious. He testified that they took him to the hospital and was later referred to Kakamega General, He had a broken skull, he was later referred to Moi Teaching Referral Hospital in Eldoret, where he underwent a couple of surgeries. He stated that the dispute has been persistent since 2017.
27. On cross-examination, he testified that the three attacked PW1. The 1st accused attacked him with stones also while the 2nd accused used the back of his jembe. PW1 became unconscious and was admitted for three days in Eldoret.
28. PW6 was Dr. Kanje, a neurosurgeon. He testified that he treated PW1, who suffered a brain injury and frontal tension pneumocephalus. He testified that Pw1 was admitted at Kenyatta Hospital on 25/12/2020 and had leakage of urine and his renal nerve was paralysed for three days on the left side. That the CT scan showed he had a skull fracture injury to the left frontal side.
29. He had a severe headache, later he regained consciousness, he was paralysed on the left side of his face.
30. During cross-examination, he confirmed that PW1 had a deep skull fracture on the left side of the head. He stated that the patient came for review after his speech came back. That the patient had recovered to 5 inches, which was normal.
31. PW7 was Pc Fredrick Rono on 13/11/2020. He claimed that he received a report from Abdalla and Rashid from Lairi village about the attack, and they visited the scene and found the complainant injured on the head. He visited the complainant at St. Mary's hospital and confirmed that the accused attacked him. During cross-examination, he confirmed that he investigated the case after the incident and stated that the patient had a bandage on his head and so he could not determine the extent of the injuries. He confirmed that there was no evidence that the accused interfered with the crime scene, and he received the blood-stained clothes from Pw1's wife on reexamination. He stated that he arrested the accused after the evidence of PW2 and PW3, who were with the complainant, who was attacked and the report was sent to the vigilance house.
32. PW8 was Dr. Timothy Koech, who is a certified neurosurgeon. He confirmed that he treated the complainant who underwent a brain surgery since his brain was swollen and the surgery was to reduce the bleeding and pressure in the brain. He testified that the complainant stayed in the ICU for two weeks. He produced the Bill as PExh 2, inpatient discharge summary-pex1 and transfer for PExh 5.
33. At cross-examination, he stated that he never knew when the complaint came to the hospital and confirmed that he treated the complainant, who had multiple injuries and was in the ICU for a while.
34. PW9 was Julian Oluana, PW1's son, who testified that he received a call that his father had been injured with crude weapons and was paralysed and unable to talk. He confirmed that he took him to Nairobi and referred him to Top Hill and later Kenyatta Hospital for a CT SCAN, where they were informed that the leakage of the skull was because of a broken skull, and they went for surgery and were later discharged after 4 days.
35. During cross-examination, he confirmed that he was not at the scene but was only informed what happened and stated that the complainant still suffers convulsions.
36. PW10 testified that on 12/11/2022, the three accused threw stones at him after he had worked in the farm for PW1. he claimed that he went to inform PW1 what had happened, and he later learnt that the complainant had been injured, although he never knew who had injured him.
37. PW 11 was Victor Simiyu, the clinical officer. He produced the discharge summary and invoice for Ibrahim Wakha and confirmed the discharge summary was filed by Dr. Ainable Nyaibahwe dated 15/22/2020- PExh 3.
38. During cross-examination, he produced a card showing that he worked at St. Mary’s hospital, and produced the report by Dr. Ainable showing the complainant was admitted on 15/11/2020 and discharged on 21/11/2020.
39. The prosecution closed its case, and in a ruling dated 3/8/2023, the trial court found that the prosecution had established a prima facie case and placed the accused on their defence.
40. DW1 Douglas Oscar Otawa, who gave a sworn statement. He testified that on 12/11/2020 he was at home waiting to go to work when he learned that his brother was in a confrontation and when he went to investigate found that the 2nd accused had swollen head and 4 old men and 3 young men were leaving the scene and denied attacking the complainant and claimed he took the 2nd accused to the hospital and that the 3rd accused is a student at Muliro university and should be dismissed.
41. During cross-examination, he stated that the 2nd accused informed him that the complainant had attacked him and denied having a grudge with him.
42. DW2 was Samson Waswa. He confirmed that on 12/11/2020, he was at home when a salesman from Azuri Solar came to his house, and when they went to the market, he saw an old man cutting Napier grass with 3 old men and 3 young men.
43. He claimed that the complainant, who was cutting the napper, hit him with a stick until he bled and that he went to Matungu hospital for treatment.
44. He denied assaulting the complainant, stating that the complainant had hit him.
45. DW3 was Ronald Ngala. He testified that on 12/11/2020, he arrived home at around 10.30 a.m. and found that the 2nd accused, his wife and mother and that the 2nd accused were in a bad condition, and he was taken to Matungu hospital and treated.
46. He stated that he was never at the crime scene and did not know what happened.
47. On cross-examination, the witness avers that the complainant framed him in the case and denied having a grudge with the complainant.
48. DW4 was Inspector Maurine Makotsi. She testified that on 12/11/2020, she received an assault report from Samson Waswa, where he stated that while on his farm, Jeffrey Wahayanga came to him and started attacking him, and he was advised to seek medical attention at Matungu sub-county hospital, where he was issued the P3 form.
49. During cross-examination, she confirmed that a report was lodged and the complaint was issued with an OB no. 06/12/11/2020, although no witness was called to confirm their case, and no documents were produced.
50. The defence closed its case.
51. The trial court, upon analysing the witnesses from both the prosecution and the defence, found that the prosecution had proved all the elements to prove the offence beyond a reasonable doubt and convicted them and sentenced the three to serve 10 years' imprisonment.
52. The appellants, being aggrieved by the sentence and the conviction, appealed against the trial court's decision.
Analysis and determination
53. This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its conclusion on that evidence. The court should however, bear in mind that it did not see witnesses testify and give due consideration to that. (See Okeno vs. Republic [1972] EA 32).
54. I have gone through the charge sheet, the evidence, and the submissions. First of all, I shall consider whether the prosecution has established beyond reasonable doubt the charge of grievous harm contrary to section 234 of the Penal Code. The essential ingredients of the offence of murder required to be proved by the prosecution against the accused stand as follows:
55. Section 234 of the Penal Code criminalises unlawfully doing grievous harm. It states that: Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.
56. In their appeal and submissions, the appellants avers that the prosecution case and witness testimony was marred with contradictions which he highlighted as follows; PW1’s, the complainant’s inability to specify who among the three accused persons wielded which weapon or what exactly they had worn during the attack; PW2’s reference to victim as “Abdalla Amere” stating that he never knew the name of the victim; PW3’s note on injury age which according to his testimony Was two weeks old; PW4’s claim that the victim was attacked by a stone and not knowing the exact weapon that was used.
57. This court has meticulously reviewed the trial court record and the witnesses’ testimony. The standard of proof remains proof beyond a reasonable doubt, as enshrined in section 107 of the Evidence Act, Cap. 80, and affirmed in Woolmington v DPP [1935] AC 462 (adopted in Kenyan jurisprudence via Barasa v Republic [1982-88] 1 KAR 315). However, not every inconsistency vitiates a conviction; only material contradictions going to the root of the case warrant interference. In Twehangane Alfred v Uganda [2003] UGCA 6, cited with approval in Joseph Maina Mwangi v Republic [2000] eKLR, courts have held that minor inconsistencies do not vitiate a conviction unless they go to the root of the charge.
58. In this case, the identification of the appellants occurred in favourable conditions and was made by neighbours personally familiar to PW1, PW2, PW4, and PW5. These witnesses lived only about 500 meters from the attackers and shared a boundary with them, making the recognition clear and reliable. Such circumstances satisfy the criteria for dependable visual identification in daylight as set out in Maitanyi v Republic [1986] KLR 198. About the weapons that the appellants had used, which were a panga, a jembe, and a knife or stone, were identified in the evidence of PW1, PW2, PW4, and PW5, and the same were corroborated by medical reports indicating both blunt and sharp force injuries leading to a depressed skull fracture, as confirmed by PW3, PW6, and PW8. PW2’s reference to “Abdalla Amere” was simply a mistaken rendition of PW4’s name, and it did not invalidate who the victim was, and as such, it did not undermine the credibility or substance of the testimony. PW3’s observation that the injuries appeared “two weeks old” is best understood as describing the healing stage noted during the examination, which is consistent with the recorded admission date of 15 November. Further, PW4’s mention of a stone accords with PW5’s evidence and serves to enhance, not contradict, the overall account presented by.
59. The medical evidence by the medical practitioners from St. Mary’s (PW3, PW11), Kakamega General (PW8), to Eldoret/MTRH and KNH (PW6) –unequivocally proved that the complainant had suffered grievous harm under section 234 Penal Code: “bodily injury... of such a nature as to endanger life or cause suffering of such a degree as to render the victim incapable of following his ordinary pursuits” the land dispute as was admitted by PW5 since 2017showed that there was motive and was unproven by defence beyond bare denial.
60. The alleged inconsistencies by the appellant did not disprove.
a) whether an assault occurred,
b) whether PW1 suffered grievous harm, or
c) whether the appellants were present and armed.
61. The prosecution's four eye witnesses, PW1, PW2, PW4 and PW5, were at the scene, and they all placed the three appellants at the scene, armed with sharp and blunt weapons, and attacking the complainant. I do note that, yes, there were small divergences among the witnesses on the weapons on the victim. It is only natural and expected that, in a violent and chaotic scene, the witnesses keep track of the weapons that are being used, given the situation.
62. The defence submitted that PW1 was the one who attacked DW2 with a stick, causing him to bleed. I find it hard that a 69-year-old man would attack the witness, causing him to sustain life-threatening injuries. DW4’s
OB entry lacks corroboration, as admitted. Moreover, the prosecution proved that all three appellants were the aggressors, corroborated by multiple eyewitnesses.
63. In David Njuguna Wairimu v Republic [2010] eKLR, courts held that a defence that is an afterthought, uncorroborated and inconsistent, can be safely rejected.
64. I find no merit in this ground.
65. The appellant further raised the claim of mental incapacity of the 2nd appellant, stating that they were to be subjected to a mental assessment under section 12 of the Penal Code (insanity defence) or section 163 Criminal Procedure Code (capacity inquiry. Throughout the trial proceedings, the appellants were represented by counsel, and from the beginning of the trial, the appellant's counsel never raised the claim of mental incapacity or produced any evidence to support their claim.
66. The claim that the trial court should have made the same observation is unfair, considering the court is not an expert in mental assessment, and it cannot be stated to be obvious to everyone.
67. I note that the 2nd appellant gave coherent evidence. He gave a sworn testimony on 12th November 2020 events, market visit, Napier grass cutting, and stick assault under oath, and was cross-examined without difficulty. He took a plea of not guilty, and further, the defence ruling proceeded unremarked. The appellant’s counsel has now raised this novel issue at his appeal. Article 50(2)(n) Constitution guarantees a fair trial, including capacity assessment where raised timely, but ambushing the insanity claim post-conviction offends justice.
68. There was no medical report presented at the trial court, no application by counsel, nor any submission indicating mental incapacity. The 2nd appellant actively participated in the proceedings, cross-examined witnesses, and testified in his defence.
69. In Republic v Musyoka Nzoka [2018] eKLR, the court held that a bare allegation of mental illness without supporting medical evidence cannot obligate a trial court to initiate a mental inquiry.
70. This ground hence fails.
71. On the sentence , the maximum sentence for the offence of causing grievous harm is life imprisonment, though the Appellant were first offenders, the complainant sustained serious life-threatening injuries a fact which informed the trial court to impose the sentence of 10 years imprisonment upon the Appellants given the gravity of the offence and the reasons advanced by the trial court in meting out the sentence I find there is no reason to interfere with this sentencing. It is proportional to the crime committed.
72. From the foregoing re-evaluation of the record, statutory provisions and case law, I find no misdirection, no legal error and no basis to fault the conviction or the sentence. The trial court properly analysed the evidence, gave cogent reasons and reached a sound and lawful conclusion.
73. The appeal is therefore devoid of merit and I do dismiss it.
74. Bonds cancelled.
75. Orders accordingly.
76. Right of Appeal 14 days explained.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 19th DAY OF MARCH, 2026.
S.MBUNGI
JUDGE
In the presence of:-
CA: Angong’a/Velma/Zilda
Ms Mburu for the Appellants present.
Appellants present.
Ms Kiu for ODPP present online.