(Being an appeal against both the conviction and sentence arising from the Judgment delivered
by Honourable Gladys Ollimo on 8th May 2024 in Mombasa SRM‘s court in CRC NO. E2307
of 2021)
A) GROUNDS OF APPEAL
1. The appeal is based on the following grounds: -
a. That the learned trial magistrate erred in law and fact by finding the Appellant’s
conviction and sentence without considering that the medical evidence did not prove the
case of Grievous Harm beyond reasonable doubt.
b. That the learned trial magistrate erred in law and fact by finding the Appellant’s
conviction and sentence without considering that the prosecution case was governed by
massive contradictions and discrepancies.
c. That the learned trial magistrate erred in law and fact by finding the Appellant’s
conviction and sentence without considering that the case was poorly investigated.
d. That the learned trial magistrate erred in law and fact by failing to comply with Section
329 of the Criminal Procedure Code as mitigation is part of the trial process.
e. That the learned trial magistrate erred in law and fact by finding the Appellant’s
conviction and sentence without considering that the Appellant was acting in self-
defence.
f. That the learned trial magistrate erred in law and fact by failing to consider that the
complainant’s condition is reversible with treatment.
g. That the learned trial magistrate erred in law and fact by finding the Appellant’s
conviction and sentence relying her judgment solely on the prosecution witnesses’
statements and in doing so, failed to consider the Appellant’s defence.
h. That the learned trial magistrate erred in law and fact by admitting a defective charge
sheet from the Prosecution that was later relied on by the court to make the judgment,
contrary to Section 134 of the Criminal Procedure Code
i. That the learned magistrate erred in law and in fact by relying on a non-specialist instead
of admitting a report from an Ophthalmologist to make a conclusion.
j. That the sentencing was excessive and unjustified.
B) THE ROLE OF THE APPELLATE COURT
2. The role of this court as the first appellate court is well established. As stated in the case of
Selle & another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, an appellate
court is mandated to re-evaluate the evidence presented before the trial court as well as the
resulting judgment and arrive at its own independent conclusion.
3. This court is therefore empowered to subject the whole of the evidence to a fresh and
exhaustive scrutiny and come to its own conclusion on the matter but bearing in mind that the
trial court had the advantage of observing the demeanour of the witnesses and hearing them
giving evidence firsthand and gives allowance for that.
4. The case of Peter v Sunday Post [1978] EA 424 established that is not the function of the
Appellate Court to merely scrutinize the evidence to see if there was some evidence to support
the lower court findings and conclusions. It must make its own findings and draw its own
conclusion, only then can it decide whether the magistrate’s findings should be supported.
5. It should further be noted that the appellate court in David Njuguna Wairimu v Republic
[2010] eKLR, stated as follows: -
“ There are instances where the first appellate court may depending on the facts and
circumstances of the case, come to the same conclusion as those of the lower court. It
may rehash those conclusions. We do not think there is anything objectionable in
doing so, provided it is clear that the court has considered the evidence on the basis
of the law and the evidence to satisfy itself on the correctness of the decisions.’’
C) CIRCUMSTANCES OF THE CASE
6. The circumstances of the case are as follows:-
That on the 15th day of November 2021 at around 2040 HRS at Tudor Area in Mvita
Sub-County within Mombasa County, Mohammed Mwarandu Kombe unlawfully
committed grievous harm, by throwing a corrosive substance at one Fatuma Kaingu
therefore leading to sustained injuries occasioned to her eyes, contrary to Section 234
of the Penal Code.
D) EVIDENCE ON RECORD
7. The Prosecution relied on the evidence of seven (7) sworn witnesses in an attempt to secure a
judgment against the accused person, that ultimately resulted in the close of the Prosecution’s
case on the 6 th of February 2024. Thereafter, a ruling was delivered by the learned magistrate
in open court on the 14 th of February 2024, finding that the Appellant had a case to answer. He
was thereafter placed on his defence.
8. The Appellant went on to tender sworn defence evidence on the 20 th of March 2024 and the
trial court proceeded to deliver its judgment on the 8 th of May 2024 where the Appellant was
convicted in the first count and was acquitted in the second count of malicious damage to
property. He was therefore sentenced to thirty (30) years imprisonment on the first count.
9. Aggrieved and dissatisfied by the conviction and sentencing meted out by the trial court, the
Appellant has preferred ten (10) grounds of Appeal vide the Memorandum of Appeal dated
the 20 th of May 2024 and the Petition of Appeal dated 4 th of June 2024.
E) RELEVANT FACTS
10. In a brief manner, the Prosecution’s case is that on the 15 th of November 2021 at around 2040
HRS, the Complainant, Fatuma Kaingu, met the Appellant, an ex-lover in Tudor Area in
Mombasa to give him the spare keys to his house. The testimony provided by PW1 and further
corroborated by PW2 and PW6 stated that the Appellant then got a hold of the Complainant’s
wrist as she gave him the keys and threw a corrosive substance at her face.
11. This substance would later be confirmed by PW5, a Government Chemist to be Hydrochloric
Acid vide Exhibit 5, a Government Analyst Report. PW4 thereafter adduced a P3 Form which
disclosed that the Complainant sustained the following injuries: reduced vision, photophobia,
an infected, red and swollen conjunctiva, a lacerated upper lip and a swollen face as a result of
the incident.
12. Succinctly, the Defence’s case is that on the 15 th of November 2021 at around 2040 HRS, the
Appellant met with the Complainant with the objective of obtaining the keys to his house. She
acted in a grumpy manner, proceeded to tell him to “give them to his women friends” and
hurled her phone and afterwards, a stone at him.
13. It is his evidence that the liquid was clothes' washing soap and that it spilled when he threw it
at the Complainant in an act of self-defence. He further stated that he left after she returned to
her place of work.
F) ISSUES FOR DETERMINATION
14. Having considered the record of appeal as well as the rival submissions by the parties, I
discern the following issues for determination:
a) Whether the offence of Grievous Harm was proven beyond reasonable doubt;
b) Whether the charge sheet was defective;
c) Whether the defense of self-defense was considered.
d) Whether the sentence meted on the Appellant was excessive and unjustified;
G) ANALYSIS
a) Whether the offence of Grievous Harm was proven beyond reasonable doubt;
15. Section 4 of the Penal Code provides the following definitions:
‘Grievous Harm is any harm which amounts to a maim or dangerous harm, or
seriously or permanently injures health, or which is likely so to injure health, or
which extends to permanent disfigurement, or to any permanent or serious injury to
any external or internal organ, membrane or sense’.
‘“Maim” means the destruction or permanent disabling of any external or internal
organ, member, or sense.’
‘‘‘Harm’’ is defined as bodily hurt, disease, or disorder whether permanent or
temporary.’
16. To secure a conviction under the offence of grievous harm, the prosecution had to prove the
following essential elements beyond reasonable doubt:-
a) Victim sustained grievous harm;
b) Harm occasioned on the victim was caused unlawfully;
c) That it is the Appellant who caused the grievous harm to be occasioned upon the
Complainant.
17. The first element to prove grievous harm is that the victim sustained grievous harm. This
Court has considered the evidence tendered by PW1, PW4, PW6 in establishing that the
Complainant has sustained serious injuries occasioned to her eyes, which has resulted in
discolouration and blindness.
18. According to the Record of Appeal, one of the grounds of appeal was that the medical report
failed to prove the case of grievous harm beyond reasonable doubt. Examining the definitions
provided above and the evidence tendered by PW4, a medical officer, and the mere
appearance of the Complainant, it is evident that the dangerous harm that was dealt to the
Complainant, resulted in a serious injury to her eyes, an external organ.
19. The use of disjunctive words such as “or” in the above legal provision, supports this case in
that, where an injury seriously injures the health of someone, or extends to a disfigurement of
an external organ or sense, this amounts to grievous harm. The injury need not be permanent
to amount to a successful claim of the same.
20. Furthermore, the photographic evidence tendered by PW7, marked PMFI 8(a-b) and 10(a-b)
clearly delineate the difference between the Complainant’s eyes before the harm was
occasioned to her by the Appellant and after the injuries were sustained that resulted in
discolouration and blindness.
21. The Appellant further stated that he appealed on the grounds that an Ophthalmologist’s
opinion was not provided as to the condition of the Complainant. It is my finding that PW4, a
medical officer who adduced the P3 Form on behalf of a practicing doctor suffices as an
adequate expert to discern the condition of the Complainant, even at face value. This is further
buttressed by PW1, PW6 and PW7 who provided testimonies as to the damaged condition of
the Complainant’s eyes and the photographic evidence that clearly demonstrated loss of
vision.
22. The Appellant further averred that the Complainant’s condition is reversible with treatment. It
is this court’s finding that this does not vary the fact that grievous harm was still inflicted upon
the Complainant, even though the condition may tentatively be found to be reversible.
23. The second element to prove the offence of Grievous Harm is that the harm was caused
unlawfully, meaning that the harm was caused without legal justification.
24. In this instance, PW1 stated that the Appellant threw the corrosive substance on her face due
to the fact that she had rejected his romantic advances with intention to marry her stating that
she was “not interested”.
25. DW1 in turn claimed that he threw the object that contained the corrosive substance as an act
of self-defence. The issue as to whether this defence is sustainable in evading liability in a
case of grievous harm has been discussed extensively in the third issue.
26. I have considered the evidence provided by both the adverse parties, PW1 and DW1, with
regards to the circumstances that resulted in the act of grievous harm being committed. I am
convinced that neither reason provided by either party would warrant the infliction of grievous
harm upon the Complainant.
27. In this case both parties agree that they met together and that there was a confrontation which
led to the complainant sustaining serious injuries.
28. The accused person says he was acting in self defence. I however note that he did not sustain
any injury and I do not agree with his version that he was attacked.
29. Further, he had purchased and carried with him an extremely corrosive chemical; hydrochloric
acid. I take Judicial notice that hydrochloric acid is not a common detergent. Further he did
not say why would it have been unconcerned so as to accidentally spill
30. I am convinced like the trial court that the appellant specifically purchased this chemical and
he intentionally splashed it on the complainant when she rejected his advances.
31. Accordingly, I find that the Prosecution proved beyond reasonable doubt that the injury
sustained by the Complainant was caused unlawfully. Similarly, that there was no legal
justification to warrant the harm from being occasioned to the Complainant.
32. Thirdly, to establish grievous harm, the Prosecution must prove beyond reasonable doubt, the
aspect of positive identification of the Appellant. This issue is not disputed by either party.
33. Both PW1, alongside other Prosecution witnesses, and the Appellant have given testimonies
so as to demonstrate that the bottle containing the liquid, whether corrosive or not, was thrown
by the Appellant, subsequently inflicting grievous harm upon the Complainant. There was no
mention of a different name other than the Appellant’s, in the commission of the crime.
34. I accordingly find that the Prosecution testimonies accompanied with medical reports and
photographic evidence sufficiently satisfy the standard of proof in finding that Grievous Harm
was indeed occasioned by the Appellant towards the Complainant.
b) Whether the charge sheet was defective;
35. One of the grounds of appeal filed by the Appellant was that the charge sheet was defective
and was thereafter relied upon by the learned magistrate in coming to a decision.
36. As to whether the charge sheet was defective, it has been held that a court must consider the
defects in a charge from a two-step test. First is to determine whether the charge is defective
and if so, whether such defect can be remedied. This was stated by the Court of Appeal in
Peter Ngure Mwangi v Republic [2014] eKLR as follows:-
“On the issue of a defective charge sheet, there are two limbs to it. The first one deals
with the issue as to whether the charge sheet is indeed defective, whereas the second
one deals with the issue as to whether even if a charge sheet is defective, that defect is
curable or not.”
37. Furthermore, the Court of Appeal in the case of Benard Ombuna v Republic [2019] eKLR
stated as follows:-
“Of relevance is whether a defect on the charge sheet prejudiced the appellant to the
extent that he was not aware of or at least he was confused with respect to the nature
of the charges preferred against him and as a result, he was not able to put up an
appropriate defence [emphasis mine].”
38. In this instance, the Appellant was charged with the offence of Grievous harm contrary to
Section 234 of the Penal Code; the section that provides for the punishment of the offence.
39. Section 382 of the Criminal Procedure Code provides as follows:
Subject to the provisions hereinbefore contained, no finding, sentence or order passed
by a court of competent jurisdiction shall be reversed or altered on appeal or revision
on account of an error, omission or irregularity in the complaint, summons, warrant,
charge, proclamation, order, judgment or other proceedings before or during the trial
or in any inquiry or other proceedings under this Code, unless the error, omission or
irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has
occasioned a failure of justice the court shall have regard to the question whether the
objection could and should have been raised at an earlier stage in the proceedings.
40. In applying the above test, the Appellant participated in the trial in a manner that suggested
that he understood the charge. He demonstrated this by cross-examining the Prosecution
Witnesses with clarity and was further able to put up an appropriate defence to the crime with
which he was charged for.
41. Additionally, the appellant did not at the first instance raise an objection or rather contend that
the charge sheet was defective.
42. Furthermore, the Court of Appeal in Yongo v Republic [1983] KLR held as follows:
“In our opinion a charge is defective under Section 214(1) of the Criminal Procedure
Code where:
[...]
(c)It gives a misdescription of the alleged offence in its particulars.”
43. In this instance, the charge sheet clearly delineated the offence with which the Appellant was
charged with and provided no such misdescription.
44. It is my therefore my finding that neither was the charge sheet defective nor was any prejudice
occasioned to the Appellant to warrant such a claim.
c) Whether the defense of self-defense was considered;
45. Self-defense in Kenyan law is recognized as a complete defense if the force used was
necessary and proportionate to the threat faced. This is further established in law under
Section 17 of the Penal Code that provides that:
"Subject to any express provisions in this Code or any other law in operation in
Kenya, criminal responsibility for the use of force in the defense of person or property
shall be determined according to the principles of English Common Law."
46. As in the case of Republic v. Gusambizi s/o Wesonga [1948] 15 EACA 65, English Common
Law dictates that self-defense is a lawful defense if the accused believed on reasonable
grounds that their life was in danger and that the force used was necessary to avert that danger.
Thus:-
The principle derivable from the above case is that, self-defense is a valid legal
defense when:
a) The accused reasonably believed they were in imminent danger.
b) The force used was necessary to avert the threat.
c) The force applied was proportionate to the danger posed.
47. In the present instance, the Appellant raised the aspect of self-defense in describing his actions
in throwing the object that contained the corrosive liquid at the Complainant. He further
claimed that the fact that the liquid spilled on her was an accident and was not intended. The
Appellant contended that his defence of self-defense was not considered.
The Evidence tendered by PW4, the medical officer, vide the P3 form demonstrated that PW1,
the Complainant, sustained the following injuries: reduced vision, photophobia, an infected,
red and swollen conjunctiva, a lacerated upper lip and a swollen face as a result of the
incident. The injuries were due to the attack inflicted upon her by the Appellant.
48. The Appellant did not demonstrate that he suffered any injury at all during the incident.
Although he stated that he managed to dodge the alleged attacks by the Complainant,
throwing an object with a substance capable of harming the Complainant in retaliation would
neither be necessary nor proportionate.
49. The absence of injuries on the Appellant therefore demonstrates that he was evidently the
perpetrator of the violence inflicted upon the Complainant and not the other way. The
Appellant had no reason to believe that there was genuine need to invoke violence as an
answer to apprehension caused unto him, if any.
50. Further it is noted that it is the appellant who purchased or sourced the corrosive substance
and carried it to where the victim was . This shows both the intention cause the grievous harm
and preparation . The defence of self cannot avail in such a scenario.
51. Having examined the above, it is my finding that it would be highly implausible for the bottle
that contained the corrosive substance to open and “accidentally” spill on the Complainant’s
eyes and face. It is too perfect an incident to be disregarded.
52. With regards to this matter, it is my finding that the defense of self-defense in retaliation to the
Complainant’s actions fails.
d) Whether the sentence meted on the Appellant was excessive and unjustified;
53. Section 231 of the Penal Code provides the following sentence for the crime of grievous
harm:
Any person who, with intent to maim, disfigure or disable any person, or to do some
grievous harm to any person, or to resist or prevent the lawful arrest or detention of
any person— [...]is guilty of a felony and is liable to imprisonment for life.
The same is to be read with Section 234 of the Penal Code.
54. The Court in the case of Abdi v Republic [1971] KEHC 6733, spoke to the issue of
interference with sentences given by trial courts as follows:-
“On appeal, the appellate court will not easily interfere with sentence unless, that
sentence is manifestly excessive in the circumstances of the case, or that the trial
court overlooked some material factor, or considered some wrong material, or acted
on a wrong legal principle. Even if the appellate court feels that the sentence is heavy
and that it might itself not have passed that sentence, the same cannot be sufficient
ground for interfering with the discretion of the trial court on sentencing unless,
anyone of the matters already stated grounds is shown to exist.”
55. I am guided by Section 1.2 of the Sentencing Policy Guidelines [2023] from which I derive
that, one of the principles of Sentencing is ‘Proportionality’, in that, the sentence meted out
must be proportionate to the offending behavior meaning it must not be more or less than is
merited in view of the gravity of the offence.
56. The Appellant was charged with the offence of assault causing grievous harm contrary to
Section 234 of the Penal Code and was thereafter sentenced to 30 years imprisonment by the
learned magistrate. Upon careful re-evaluation of the evidence adduced at trial, including the
testimony of all witnesses, medical reports and photographic exhibits, it is evident that the
injuries sustained by the Complainant were both grave and life-altering; injuries that, but for
the actions of the Appellant, would not have occurred.
57. From an individual once able to sustain herself by working as a house manager, she is now
faced with the devastating burden of dependency and high financial and emotional costs of
managing a condition she neither deserved nor foresaw. She will no longer be able to work
and sustain herself as she had done previously. The Complainant will have to live with this
condition, and if she opts to seek treatment, the same would come at a substantive cost.
58. Although this Court is presently aware of the mitigating circumstances provided by the
Defendant in line with the Section 4.1.4 of the Sentencing Policy Guidelines [2023], I find
that the circumstances and the gravity of the offence far outweigh the mitigating
circumstances.
59. Lastly, it must be stated with utmost seriousness that acid attacks are not novel occurrences of
violence in our jurisdiction. The courts cannot turn a blind eye to this reality. It is therefore my
finding that the nature of the harm inflicted, the premeditated nature of the crime and the
blatant disregard for the dignity of the Complainant weigh heavily against leniency and
therefore warrant a deterrent sentence.
60. Accordingly, I find that the sentence meted by the trial court was neither excessive nor
unlawful. No reason has been discovered to warrant interference with the sentence.
e) CONCLUSION
61. Under the present circumstances, I find that the Appellant’s defence did not cast any doubts on
the evidence tendered by the Prosecution. The elements of grievous harm were sufficiently
proved to the standard required of the Prosecution.
62. This court finds that the appeal against both the conviction and the sentence lacks merit and is
hereby dismissed.
63. The appellant to continue serving his sentence.
64. It is so ordered.
DELIVERED, DATED AND SIGNED THIS ....15th............. DAY OF........MAY.............
2025.
HON. LADY JUSTICE WENDY KAGENDO MICHENI
JUDGE
IN THE PRESENCE OF: -
MS KYALO FOR THE ACCUSED PERSON
MR NGIRI FOR THE RESPONDENT
MS. BEBORA COURT ASSISTANT