( Appeal against the Judgment of Hon. C.N.C Oruo- Principal Magistrate, delivered on 18/08/2025 in Rongo Principal Magistrate’s Court Criminal Case No. E018 of 2024 )
JUDGMENT
INTRODUCTION
1. The Appellant was charged with the offence of Causing Grievous Harm to Section 234 of the Penal Code . The particulars were that on the 24 th day of December, 2023 , at around 1730hrs at Nyaburu area, in Rongo Sub County within Migori County in the Republic of Kenya, wilfully and unlawfully did grievous harm to WILIS ONYANGO SAMO.
2. The Appellant was further charged with a second count with the offence of Conspiracy to commit a Felony contrary to Section 393 of the Penal Code . The particulars were that on the 24 th day of December, 2023 , at around 1730hrs at Nyaburu area, in Rongo Sub County within Migori County in the Republic of Kenya, he conspired to commit a felony namely grievous harm to WILIS ONYANGO SAMO
3. Lastly, the Appellant was charged with a third count with the offence of Creating a Disturbance in a manner likely to cause breach of the peace contrary to Section 95 (1) (a) of the Penal Code . The particulars were that on the 24 th day of December, 2023 , at around 1730hrs at Nyaburu area, in Rongo Sub County within Migori County in the Republic of Kenya, created disturbance in a manner likely to cause a breach of the peace by abusing WILIS ONYANGO SAMO that his mother was a prostitute, “ Kuma ya mamayako, you thief .”
4. The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the prosecution called 5 witnesses in total.
5. At the close of the prosecution’s case, the Court found the Appellant as having a case to answer and placed him on his defence. He then gave sworn evidence and was cross-examined. By the Judgment delivered on 18/8/2025, the Appellant was convicted and sentenced to serve 10 years’ imprisonment on count 1 and 2 years’ probation on count 3.
6. Dissatisfied with the decision, the Appellant filed the undated Petition of Appeal and later filed an Amended Appeal against both conviction and sentence. His Amended Petition of Appeal, reproduced verbatim, is crafted as follows:
i) That the medical report and witness account does not disclose the offence of grievous harm but rather assault.
ii) That the trial court overlooked other forms of punishment available to the appellant in the circumstances.
iii) No prima facie case was established against the Appellant.
PROSECUTION’S TESTIMONY AT THE TRIAL COURT
7. PW1 the Complainant testified before Court and stated that on the 24/12/2023 he was going to his farm to build a structure. Before doing so the Appellant was notified of the accused’s presence in the said farm, the Appellant in return came throwing stones at the Complainant. The wife who was a co-accused and has since been convicted and serving her sentence and shall be referred to the Appellant’s wife herein under, went back to the house and returned with 2 pangas and gave the Appellant 1 panga while retaining the other panga. The Complainant testified that as they were in the midst of resolving their issue, the Appellant attempted to cut his head with a panga and he blocked it with his right hand around the wrist. On cross examination, the Complainant informed Court that they attempted to talk with the Appellant before the Appellant proceeded to assault the Complainant.
8. PW1 was later recalled upon the Amendment of the Charge sheet where he informed the trial court that the structure he was putting on the land was destroyed by the Appellant. That he owned the parcel of land and they have always had disputes with the Appellant over the same and in the attempt of the Appellant trying to cut his neck he blocked hence he ended up being cut on the right hand which has since dislocated making him unable to do anything. The Appellant went to Rongo Sub County Hospital where he was attended to before reporting it to Rongo Police station. On further cross examination he reiterated that they have had a dispute over the parcel of land which was left to him by his father in the year 1964 and it is where he wanted to construct his home.
9. PW2 testified that PW1 is his elder brother and on the material date together with their 5 brothers they went to the farm. They met the Appellant’s wife who started insulting them, however they proceeded and went to the lower part of the farm. The Appellant eventually came and approached them, they scattered as he had some stones in his pockets. The Appellant’s wife then went to the house and brought him machetes in which the Appellant was given one machete. Appellant asked PW1 whether they could talk making them to move closer and in the process it is the testimony of PW2 that the Appellant raised the said machete in an attempt to cut the neck of PW1 who blocked the matchete with his hand. On cross examination he informed court that he was at the scene when the incident happened and they were going to put a structure on their parcel of land that was bought by their father who in return gave it to PW1. He further added that the Appellant was holding the Machete in his right hand.
10. PW3 the clinical officer informed the trial court that as per the P3 Form, PW1 had an injury on the right hand cut sharp object, on examination it was deep cut right hand bone radius and the injury was approximately 1 hour, the case of the injury was stated to be a sharp object probably a panga. On treatment he stated that the wound was stitched and dressed and anti-tetanus injection was given. He further stated that the nature of the injury was grievous harm.
11. PW4 stated that PW1 is his brother and he also knows the Appellant and on the material date he went to the farm to put up a structure and on reaching there, they found the Appellant’s wife who started screaming calling them thieves, insulting them and throwing stones at them. The Appellant requested to have a conversation with them and around the same time the Appellant’s wife came back with 2 pangas from the house and gave the Appellant one panga. That as they were talking the Appellant took a panga and jumped and all of a sudden threw himself and cut PW1 on the hand. On cross examination PW4 informed Court that he witnessed the events as narrated during examination in chief
12. PW5 PC SAMUEL ODOYO testified and informed the Court that on the 24.12.2023 they received a report at the station on a case of grievous harm. That PW1 while in the company of his brothers visited their parcel of land with the aim to construct. In the process they were approached by the Appellant’s wife who started insulting them and then she went back to the house and came back with the Appellant who started throwing stones at PW1 and his brothers who moved away. The Appellant then followed them and asked for a dialogue and during the said dialogue is when the Appellant took up his panga and inflicted a cut on the complainant right hand. PW1 rushed to Rongo Sub County Hospital where he was treated and discharged. He was also issued with a P3 Form which was duly filed.
DEFENCE TESTIMONY BEFORE THE TRIAL COURT
13. The Appellant testified as DW1 . He gave sworn testimony. He stated that on the material date he was not at the scene and was sleeping in his house as he was unwell. That his wife was selling maize by the door step and he was only woken up at 8:00 P.M to eat. He stated that his wife never told her that she saw anyone at the farm or around and that he never left the house. That even at the time of the arrest he was found sleeping in his house and he does not have any differences with PW1. On cross examination he stated that he did not assault PW1.
14. That after the trial, by the Judgment delivered on 18/08/2025, the Appellant was convicted and sentenced to serve 10 years’ imprisonment on count 1 and 2 years’ probation on count 3.
HEARING OF THE APPEAL
15. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions which are undated. The Respondent equally through Prosecution Counsel Ombogo Juliet , filed the Submissions dated 18/05/2026.
APPELLANT’S SUBMISSIONS
16. In summary, the Appellant submitted that the medical report and witness account does not disclose the offence of grievous harm rather an assault as there was no medical documents such as an X-ray or City scan to support PW3 assertion of how deep the wound was hence ingredients of grievous harm have not been met.
17. He further submitted that the sentence was manifestly high as he is a man living with disability after his leg was cut out and the sentence should have been lenient. Lastly, he submitted that a prima facie case was never established.
RESPONDENT’S SUBMISSIONS
18. Prosecution Counsel submissions were in respect to the grounds of appeal earlier filed however, the main issue that came out clearly was whether the prosecution proved the offence of grievous harm beyond reasonable doubt. The Prosecution recounted the provisions of Section 234 of the Penal Code in respect to the offence of “ grievous harm ” and submitted that for the prosecution to secure a conviction under a charge for the offence, it has to prove that ( i ) the victim suffered grievous harm, ( ii ) that the harm was caused unlawfully, and ( iii ) that the accused caused or participated in causing the grievous harm. On the definition of “ grievous harm ”, he cited Section 4 of the Penal Code and set that the specificities of the offence. She recounted the complainants’ testimony (PW1), PW2 & PW4 and also that of the Clinical Officer ( PW3 ), and submitted that the medical findings were reflected in the P3 Form in which, the injuries sustained by the complainant were classified as “ grievous harm ”. According to her submissions the evidence on record proved all the ingredients required for the offence herein had been met.
ANALYSIS AND DETERMINATION
19. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses ( See Okeno vs. Republic [1972] E.A 32 ) .
20. The issues that arise for determination in this matter are the following:
i) Whether the grievous harm charge against the Appellant was proved beyond reasonable doubt.
ii) Whether the sentence of 10 years’ imprisonment imposed against the Appellant was justified.
21. On whether the grievous harm charge against the Appellant was proved beyond reasonable doubt the Court is alive to the fact that Section 234 of the Penal Code , provides as follows:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life .”
22. To secure a conviction for the offence of grievous harm therefore, the essential elements that the prosecution has to prove are that (i) the victim sustained grievous harm, (ii) the harm was caused unlawfully and (iii) the accused caused or participated in causing the “ grievous harm ”.
23. The definition of “ grievous harm ” is itself set out at Section 4 of the Penal Code as follows:
“ grievous harm” means 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 ”.
24. In breaking down the above provisions of law and principles, the Court of Appeal, in the case of; John Oketch Abongo v Republic [2000] eKLR held as follows:
“ Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code . A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.
In this case we have carefully considered the medical evidence and the findings made by the Clinical Officer both in the P3 form and in the evidence in court. We have also carefully considered the definition of grievous harm as contained, not only in the Penal Code already quoted in this judgment, but also in the P3 form to which we were referred by Mr. Onsongo.
We are satisfied that the complainant's injury amounted to grievous harm as defined in the Penal Code . The definition contains several ingredients of what constitutes grievous harm. We are of the opinion that the presence of any one of these ingredients would suffice to disclose grievous harm. Here, we are satisfied that the complainant's injury did amount to dangerous or serious injury to health both of which are ingredients contained in the definition .” (emphasis added).
25. From the foregoing, it is clear that although the definition of “ grievous harm ” contains several ingredients, proof of the presence of any one of those ingredients is sufficient to disclose the offence.
26. As a result of the definition and principles above, it is now generally agreed, as has been restated in various authorities, that the specificities of " grievous harm " are therefore; (i) in the case of “ grievous harm ”, the injury to health must be permanent or likely to be permanent, whereas, to amount to “ bodily harm ”, the injury to health need not be permanent, (ii) a mental injury may amount to grievous harm but not to bodily harm, and (iii ) the injury must be of such a nature as to cause or be likely to cause permanent injury to health.
27. In this case, the Clinical Officer ( PW3 ) who stood in for the Clinical Officer who examined the complainant on 24/12/2023 produced the P3 Form which indicates that the complainant went to the hospital with a history of assault which occurred on the 24.12.2023 at 6.00 P.M at Nyaburu area. He testified that the complainant sustained injuries on the Upper arm which was a deep cut right hand bone radius. He further stated that the injury was approximately 1-hour old confirming that the injury was inflicted the same day.
28. Further, according to him, the injuries were caused by a sharp object and in the P3 Form, the examining clinical officer in fact classified the injuries as “ grievous harm ”
29. The Court notes that the complainant, in his testimony stated while they were in the midst of resolving their issue, the Appellant attempted to cut his head with a panga and he blocked it with his right hand around the wrist which testimony tallies with the Clinical Officer’s description of the item used as being a “ Sharp object ”. The injuries alleged by the complainant were therefore consistent and corroborated by the medical evidence on record. Indeed, two years later when the pre-sentence report by the Probation Officer, the victim did indicate that he had lost the use of the arm that was cut by the 1 st accused person and was no longer able to work due to the injury. It is thus presumptive of a permanent injury to the hand. Noting the age of the complainant, it is also unlikely that he will recover fully or learn a new skill to mitigate the opportunities lost.
30. A look at the extent of injuries suffered by the complainant indicates “harm” which in accordance with the definition given in Section 4 of the Penal Code “ amounts to a maim or dangerous harm ”, or “ serious or permanent injured health ”, or “ is likely so to injure health ” or “ cause permanent ” or “ serious injury to external or internal organ, membrane or sense ” .
31. Accordingly, I find no reason to depart from the trial Court’s findings that the complainant indeed sustained “ grievous harm ” within the meaning contemplated under Section 4 of the Penal Code .
32. On whether the harm was caused “ unlawfully ”, from the sequence of events, it is evident that there was no lawful reason for the attack and none has been offered or even alleged in any event. The Appellant intentionally and unlawfully used a panga to attack the Complainant after luring them into a conversation. This information has been corroborated by several witnesses. In the circumstances, I am also satisfied that this element was satisfied.
33. On the issue of “ identification ” and/or participation of the Appellant in the offence, the Court of Appeal, in the case of Cleophas Wamunga v Republic [1989] eKLR cautioned as follows:
“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification ”.
34. In this case, as aforesaid, the Appellant and the complainant are neighbours. It is clear that the parties herein have had a long history of land dispute hence it’s impossible to state that at the time the time the assault was taking place the Complainant would be unable to identify the Assailant especially since they had a brief conversation. Further while giving his testimony the complainant expressly identified the Appellant as the person who assaulted her thus causing her the injuries. Further, PW2 & PW4 testified that they were able to confirm that it was the Appellant who assaulted the Complainant.
35. To this end the Complainant and the Appellant are therefore familiar with and were well known to each other even prior to the incident. The assault is also said to have occurred around 1730 hours thus during the day. This was therefore a case of “ recognition ” rather than identification of a stranger. Such evidence of “ recognition ” is clearly more reliable and believable in “ identification ”.
36. The Appellant has placed much reliance on the fact that no other eye-witness. In light of the foregoing, I am also satisfied that the trial Magistrate correctly found that the Appellant was positively identified. The ground of Appeal challenging “ identification ” also therefore fails.
37. Additionally, this court also notes that the defence by the Appellant was simply mere denials of the incident which did not tackle the specific accusations that was were raised against him.
38. Consequently, no justification has therefore been demonstrated to warrant this appellate Court’s interference with the verdict of conviction arrived at by the trial Court. In the premises, I find no reason to interfere with the conviction of the appellant.
39. On whether the sentence of 10 years’ imprisonment was justified. The court wishes to rely on the applicable principles in considering sentence on appeal which were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR , in the following terms:
“ It is now settled law, following several authorities by this Court and the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the sentence must depend on the facts of each case. 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 took into account the wrong material, or acted on the wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist ”
40. As earlier observed Section 234 of the Penal Code provides as follows:
“ Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life .”
41. In view thereof, it is clear that the sentence imposed by the trial Court was within the statute. This observation does however not mean that this Court cannot determine the issue whether the sentence was manifestly excessive or harsh, which I now hereby do.
42. The Court proceeds to cite the Supreme Court in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR) , guided that, in sentencing, the following mitigating factors would be applicable; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; and (h) any other factor that the Court considers relevant .
43. The court also cites the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, in which, Majanja J , in quoting the Muruatetu case (supra) , he stated as follows:
“ The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four-tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ……………………………… ”
44. Similarly, in the case of Daniel Kipkosgei Letting Vs. Republic [2021] eKLR , the Court of Appeal pronounced itself as follows;
“ …………. we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. …….. ”
45. Additionally, this Court has also carefully reconsidered the mitigation tendered by the Appellant together with the pre-sentence Report that was placed before the trial court. The report addressed the Appellant's personal circumstances, social background, and prospects of rehabilitation. The Court has also taken into account the mitigating factors advanced by the Appellant, including those relating to his personal circumstances. However, mitigation cannot eclipse the gravity of the offence committed, particularly where the victim sustained injuries that were properly classified as grievous harm within the meaning of Section 4 of the Penal Code and will always live with the said trauma.
46. The Court further notes that the trial court expressly considered both the mitigation and the contents of the Pre-Sentence Report before arriving at the sentence of ten (10) years imprisonment. There is nothing on the record to suggest that the trial court acted on a wrong principle, overlooked any material consideration, or took into account irrelevant factors.
47. On the contrary, the sentence imposed reflects a proper exercise of judicial discretion, taking into account the objectives of sentencing as set out in the Judiciary Sentencing Policy Guidelines, namely punishment, deterrence, rehabilitation, community protection, denunciation, and accountability and given that the offence attracts a maximum sentence of life imprisonment, the sentence of ten (10) years was substantially below the statutory maximum and cannot, by any stretch, be described as excessive or manifestly harsh.
48. In the circumstances, this Court is satisfied that the sentence imposed was lawful, proportionate, and commensurate with both the gravity of the offence and the injuries inflicted upon the complainant. Having independently reviewed the mitigation, the pre-sentence report, the circumstances surrounding the commission of the offence, and the applicable legal principles, this Court finds no basis upon which to interfere with the trial court's exercise of discretion.
49. In light of the foregoing the appeal is accordingly dismissed in its entirety.
Orders accordingly
Dated, signed and delivered virtually via Microsoft Teams this 23 rd Day of July 2026.
HCCRA NO. E087 OF 2025 SAMUEL ABUYA MBIJA VS REPUBLIC Pg.12
JUDGMENT
INTRODUCTION
1. The Appellant was charged with the offence of Causing Grievous Harm to Section 234 of the Penal Code . The particulars were that on the 24 th day of December, 2023 , at around 1730hrs at Nyaburu area, in Rongo Sub County within Migori County in the Republic of Kenya, wilfully and unlawfully did grievous harm to WILIS ONYANGO SAMO.
2. The Appellant was further charged with a second count with the offence of Conspiracy to commit a Felony contrary to Section 393 of the Penal Code . The particulars were that on the 24 th day of December, 2023 , at around 1730hrs at Nyaburu area, in Rongo Sub County within Migori County in the Republic of Kenya, he conspired to commit a felony namely grievous harm to WILIS ONYANGO SAMO
3. Lastly, the Appellant was charged with a third count with the offence of Creating a Disturbance in a manner likely to cause breach of the peace contrary to Section 95 (1) (a) of the Penal Code . The particulars were that on the 24 th day of December, 2023 , at around 1730hrs at Nyaburu area, in Rongo Sub County within Migori County in the Republic of Kenya, created disturbance in a manner likely to cause a breach of the peace by abusing WILIS ONYANGO SAMO that his mother was a prostitute, “ Kuma ya mamayako, you thief .”
4. The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the prosecution called 5 witnesses in total.
5. At the close of the prosecution’s case, the Court found the Appellant as having a case to answer and placed him on his defence. He then gave sworn evidence and was cross-examined. By the Judgment delivered on 18/8/2025, the Appellant was convicted and sentenced to serve 10 years’ imprisonment on count 1 and 2 years’ probation on count 3.
6. Dissatisfied with the decision, the Appellant filed the undated Petition of Appeal and later filed an Amended Appeal against both conviction and sentence. His Amended Petition of Appeal, reproduced verbatim, is crafted as follows:
i) That the medical report and witness account does not disclose the offence of grievous harm but rather assault.
ii) That the trial court overlooked other forms of punishment available to the appellant in the circumstances.
iii) No prima facie case was established against the Appellant.
PROSECUTION’S TESTIMONY AT THE TRIAL COURT
7. PW1 the Complainant testified before Court and stated that on the 24/12/2023 he was going to his farm to build a structure. Before doing so the Appellant was notified of the accused’s presence in the said farm, the Appellant in return came throwing stones at the Complainant. The wife who was a co-accused and has since been convicted and serving her sentence and shall be referred to the Appellant’s wife herein under, went back to the house and returned with 2 pangas and gave the Appellant 1 panga while retaining the other panga. The Complainant testified that as they were in the midst of resolving their issue, the Appellant attempted to cut his head with a panga and he blocked it with his right hand around the wrist. On cross examination, the Complainant informed Court that they attempted to talk with the Appellant before the Appellant proceeded to assault the Complainant.
8. PW1 was later recalled upon the Amendment of the Charge sheet where he informed the trial court that the structure he was putting on the land was destroyed by the Appellant. That he owned the parcel of land and they have always had disputes with the Appellant over the same and in the attempt of the Appellant trying to cut his neck he blocked hence he ended up being cut on the right hand which has since dislocated making him unable to do anything. The Appellant went to Rongo Sub County Hospital where he was attended to before reporting it to Rongo Police station. On further cross examination he reiterated that they have had a dispute over the parcel of land which was left to him by his father in the year 1964 and it is where he wanted to construct his home.
9. PW2 testified that PW1 is his elder brother and on the material date together with their 5 brothers they went to the farm. They met the Appellant’s wife who started insulting them, however they proceeded and went to the lower part of the farm. The Appellant eventually came and approached them, they scattered as he had some stones in his pockets. The Appellant’s wife then went to the house and brought him machetes in which the Appellant was given one machete. Appellant asked PW1 whether they could talk making them to move closer and in the process it is the testimony of PW2 that the Appellant raised the said machete in an attempt to cut the neck of PW1 who blocked the matchete with his hand. On cross examination he informed court that he was at the scene when the incident happened and they were going to put a structure on their parcel of land that was bought by their father who in return gave it to PW1. He further added that the Appellant was holding the Machete in his right hand.
10. PW3 the clinical officer informed the trial court that as per the P3 Form, PW1 had an injury on the right hand cut sharp object, on examination it was deep cut right hand bone radius and the injury was approximately 1 hour, the case of the injury was stated to be a sharp object probably a panga. On treatment he stated that the wound was stitched and dressed and anti-tetanus injection was given. He further stated that the nature of the injury was grievous harm.
11. PW4 stated that PW1 is his brother and he also knows the Appellant and on the material date he went to the farm to put up a structure and on reaching there, they found the Appellant’s wife who started screaming calling them thieves, insulting them and throwing stones at them. The Appellant requested to have a conversation with them and around the same time the Appellant’s wife came back with 2 pangas from the house and gave the Appellant one panga. That as they were talking the Appellant took a panga and jumped and all of a sudden threw himself and cut PW1 on the hand. On cross examination PW4 informed Court that he witnessed the events as narrated during examination in chief
12. PW5 PC SAMUEL ODOYO testified and informed the Court that on the 24.12.2023 they received a report at the station on a case of grievous harm. That PW1 while in the company of his brothers visited their parcel of land with the aim to construct. In the process they were approached by the Appellant’s wife who started insulting them and then she went back to the house and came back with the Appellant who started throwing stones at PW1 and his brothers who moved away. The Appellant then followed them and asked for a dialogue and during the said dialogue is when the Appellant took up his panga and inflicted a cut on the complainant right hand. PW1 rushed to Rongo Sub County Hospital where he was treated and discharged. He was also issued with a P3 Form which was duly filed.
DEFENCE TESTIMONY BEFORE THE TRIAL COURT
13. The Appellant testified as DW1 . He gave sworn testimony. He stated that on the material date he was not at the scene and was sleeping in his house as he was unwell. That his wife was selling maize by the door step and he was only woken up at 8:00 P.M to eat. He stated that his wife never told her that she saw anyone at the farm or around and that he never left the house. That even at the time of the arrest he was found sleeping in his house and he does not have any differences with PW1. On cross examination he stated that he did not assault PW1.
14. That after the trial, by the Judgment delivered on 18/08/2025, the Appellant was convicted and sentenced to serve 10 years’ imprisonment on count 1 and 2 years’ probation on count 3.
HEARING OF THE APPEAL
15. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions which are undated. The Respondent equally through Prosecution Counsel Ombogo Juliet , filed the Submissions dated 18/05/2026.
APPELLANT’S SUBMISSIONS
16. In summary, the Appellant submitted that the medical report and witness account does not disclose the offence of grievous harm rather an assault as there was no medical documents such as an X-ray or City scan to support PW3 assertion of how deep the wound was hence ingredients of grievous harm have not been met.
17. He further submitted that the sentence was manifestly high as he is a man living with disability after his leg was cut out and the sentence should have been lenient. Lastly, he submitted that a prima facie case was never established.
RESPONDENT’S SUBMISSIONS
18. Prosecution Counsel submissions were in respect to the grounds of appeal earlier filed however, the main issue that came out clearly was whether the prosecution proved the offence of grievous harm beyond reasonable doubt. The Prosecution recounted the provisions of Section 234 of the Penal Code in respect to the offence of “ grievous harm ” and submitted that for the prosecution to secure a conviction under a charge for the offence, it has to prove that ( i ) the victim suffered grievous harm, ( ii ) that the harm was caused unlawfully, and ( iii ) that the accused caused or participated in causing the grievous harm. On the definition of “ grievous harm ”, he cited Section 4 of the Penal Code and set that the specificities of the offence. She recounted the complainants’ testimony (PW1), PW2 & PW4 and also that of the Clinical Officer ( PW3 ), and submitted that the medical findings were reflected in the P3 Form in which, the injuries sustained by the complainant were classified as “ grievous harm ”. According to her submissions the evidence on record proved all the ingredients required for the offence herein had been met.
ANALYSIS AND DETERMINATION
19. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses ( See Okeno vs. Republic [1972] E.A 32 ) .
20. The issues that arise for determination in this matter are the following:
i) Whether the grievous harm charge against the Appellant was proved beyond reasonable doubt.
ii) Whether the sentence of 10 years’ imprisonment imposed against the Appellant was justified.
21. On whether the grievous harm charge against the Appellant was proved beyond reasonable doubt the Court is alive to the fact that Section 234 of the Penal Code , provides as follows:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life .”
22. To secure a conviction for the offence of grievous harm therefore, the essential elements that the prosecution has to prove are that (i) the victim sustained grievous harm, (ii) the harm was caused unlawfully and (iii) the accused caused or participated in causing the “ grievous harm ”.
23. The definition of “ grievous harm ” is itself set out at Section 4 of the Penal Code as follows:
“ grievous harm” means 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 ”.
24. In breaking down the above provisions of law and principles, the Court of Appeal, in the case of; John Oketch Abongo v Republic [2000] eKLR held as follows:
“ Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code . A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.
In this case we have carefully considered the medical evidence and the findings made by the Clinical Officer both in the P3 form and in the evidence in court. We have also carefully considered the definition of grievous harm as contained, not only in the Penal Code already quoted in this judgment, but also in the P3 form to which we were referred by Mr. Onsongo.
We are satisfied that the complainant's injury amounted to grievous harm as defined in the Penal Code . The definition contains several ingredients of what constitutes grievous harm. We are of the opinion that the presence of any one of these ingredients would suffice to disclose grievous harm. Here, we are satisfied that the complainant's injury did amount to dangerous or serious injury to health both of which are ingredients contained in the definition .” (emphasis added).
25. From the foregoing, it is clear that although the definition of “ grievous harm ” contains several ingredients, proof of the presence of any one of those ingredients is sufficient to disclose the offence.
26. As a result of the definition and principles above, it is now generally agreed, as has been restated in various authorities, that the specificities of " grievous harm " are therefore; (i) in the case of “ grievous harm ”, the injury to health must be permanent or likely to be permanent, whereas, to amount to “ bodily harm ”, the injury to health need not be permanent, (ii) a mental injury may amount to grievous harm but not to bodily harm, and (iii ) the injury must be of such a nature as to cause or be likely to cause permanent injury to health.
27. In this case, the Clinical Officer ( PW3 ) who stood in for the Clinical Officer who examined the complainant on 24/12/2023 produced the P3 Form which indicates that the complainant went to the hospital with a history of assault which occurred on the 24.12.2023 at 6.00 P.M at Nyaburu area. He testified that the complainant sustained injuries on the Upper arm which was a deep cut right hand bone radius. He further stated that the injury was approximately 1-hour old confirming that the injury was inflicted the same day.
28. Further, according to him, the injuries were caused by a sharp object and in the P3 Form, the examining clinical officer in fact classified the injuries as “ grievous harm ”
29. The Court notes that the complainant, in his testimony stated while they were in the midst of resolving their issue, the Appellant attempted to cut his head with a panga and he blocked it with his right hand around the wrist which testimony tallies with the Clinical Officer’s description of the item used as being a “ Sharp object ”. The injuries alleged by the complainant were therefore consistent and corroborated by the medical evidence on record. Indeed, two years later when the pre-sentence report by the Probation Officer, the victim did indicate that he had lost the use of the arm that was cut by the 1 st accused person and was no longer able to work due to the injury. It is thus presumptive of a permanent injury to the hand. Noting the age of the complainant, it is also unlikely that he will recover fully or learn a new skill to mitigate the opportunities lost.
30. A look at the extent of injuries suffered by the complainant indicates “harm” which in accordance with the definition given in Section 4 of the Penal Code “ amounts to a maim or dangerous harm ”, or “ serious or permanent injured health ”, or “ is likely so to injure health ” or “ cause permanent ” or “ serious injury to external or internal organ, membrane or sense ” .
31. Accordingly, I find no reason to depart from the trial Court’s findings that the complainant indeed sustained “ grievous harm ” within the meaning contemplated under Section 4 of the Penal Code .
32. On whether the harm was caused “ unlawfully ”, from the sequence of events, it is evident that there was no lawful reason for the attack and none has been offered or even alleged in any event. The Appellant intentionally and unlawfully used a panga to attack the Complainant after luring them into a conversation. This information has been corroborated by several witnesses. In the circumstances, I am also satisfied that this element was satisfied.
33. On the issue of “ identification ” and/or participation of the Appellant in the offence, the Court of Appeal, in the case of Cleophas Wamunga v Republic [1989] eKLR cautioned as follows:
“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification ”.
34. In this case, as aforesaid, the Appellant and the complainant are neighbours. It is clear that the parties herein have had a long history of land dispute hence it’s impossible to state that at the time the time the assault was taking place the Complainant would be unable to identify the Assailant especially since they had a brief conversation. Further while giving his testimony the complainant expressly identified the Appellant as the person who assaulted her thus causing her the injuries. Further, PW2 & PW4 testified that they were able to confirm that it was the Appellant who assaulted the Complainant.
35. To this end the Complainant and the Appellant are therefore familiar with and were well known to each other even prior to the incident. The assault is also said to have occurred around 1730 hours thus during the day. This was therefore a case of “ recognition ” rather than identification of a stranger. Such evidence of “ recognition ” is clearly more reliable and believable in “ identification ”.
36. The Appellant has placed much reliance on the fact that no other eye-witness. In light of the foregoing, I am also satisfied that the trial Magistrate correctly found that the Appellant was positively identified. The ground of Appeal challenging “ identification ” also therefore fails.
37. Additionally, this court also notes that the defence by the Appellant was simply mere denials of the incident which did not tackle the specific accusations that was were raised against him.
38. Consequently, no justification has therefore been demonstrated to warrant this appellate Court’s interference with the verdict of conviction arrived at by the trial Court. In the premises, I find no reason to interfere with the conviction of the appellant.
39. On whether the sentence of 10 years’ imprisonment was justified. The court wishes to rely on the applicable principles in considering sentence on appeal which were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR , in the following terms:
“ It is now settled law, following several authorities by this Court and the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the sentence must depend on the facts of each case. 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 took into account the wrong material, or acted on the wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist ”
40. As earlier observed Section 234 of the Penal Code provides as follows:
“ Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life .”
41. In view thereof, it is clear that the sentence imposed by the trial Court was within the statute. This observation does however not mean that this Court cannot determine the issue whether the sentence was manifestly excessive or harsh, which I now hereby do.
42. The Court proceeds to cite the Supreme Court in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR) , guided that, in sentencing, the following mitigating factors would be applicable; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; and (h) any other factor that the Court considers relevant .
43. The court also cites the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, in which, Majanja J , in quoting the Muruatetu case (supra) , he stated as follows:
“ The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four-tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ……………………………… ”
44. Similarly, in the case of Daniel Kipkosgei Letting Vs. Republic [2021] eKLR , the Court of Appeal pronounced itself as follows;
“ …………. we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. …….. ”
45. Additionally, this Court has also carefully reconsidered the mitigation tendered by the Appellant together with the pre-sentence Report that was placed before the trial court. The report addressed the Appellant's personal circumstances, social background, and prospects of rehabilitation. The Court has also taken into account the mitigating factors advanced by the Appellant, including those relating to his personal circumstances. However, mitigation cannot eclipse the gravity of the offence committed, particularly where the victim sustained injuries that were properly classified as grievous harm within the meaning of Section 4 of the Penal Code and will always live with the said trauma.
46. The Court further notes that the trial court expressly considered both the mitigation and the contents of the Pre-Sentence Report before arriving at the sentence of ten (10) years imprisonment. There is nothing on the record to suggest that the trial court acted on a wrong principle, overlooked any material consideration, or took into account irrelevant factors.
47. On the contrary, the sentence imposed reflects a proper exercise of judicial discretion, taking into account the objectives of sentencing as set out in the Judiciary Sentencing Policy Guidelines, namely punishment, deterrence, rehabilitation, community protection, denunciation, and accountability and given that the offence attracts a maximum sentence of life imprisonment, the sentence of ten (10) years was substantially below the statutory maximum and cannot, by any stretch, be described as excessive or manifestly harsh.
48. In the circumstances, this Court is satisfied that the sentence imposed was lawful, proportionate, and commensurate with both the gravity of the offence and the injuries inflicted upon the complainant. Having independently reviewed the mitigation, the pre-sentence report, the circumstances surrounding the commission of the offence, and the applicable legal principles, this Court finds no basis upon which to interfere with the trial court's exercise of discretion.
49. In light of the foregoing the appeal is accordingly dismissed in its entirety.
Orders accordingly
Dated, signed and delivered virtually via Microsoft Teams this 23 rd Day of July 2026.
HCCRA NO. E087 OF 2025 SAMUEL ABUYA MBIJA VS REPUBLIC Pg.12