( Appeal against the Judgment of Hon. J.P Nandi – Senior Principal Magistrate, delivered on 15/07/2025 in Kehancha Senior Principal Magistrate’s Court Criminal Case No. E168 of 2025 )
JUDGMENT
INTRODUCTION
1. The Appellant was charged in the criminal offence of causing grievous harm contrary to Section 234 of the Penal Code . The particulars were that on the 21 st day of March, 2024 at Komasincha area, Kuria West Sub County within Migori Court, he wilfully and unlawfully did grievous harm to HEZRON MOHERE thereby occasioning him grievous bodily harm.
2. The Appellant pleaded not guilty to the charges and the case proceeded to full trial in which the prosecution called 6 witnesses in total. 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 a sworn statement and was cross-examined. He also called one witness in support of his defence. By the Judgment delivered on 15/07/2025, the Appellant was convicted and sentenced to serve 15 year’s imprisonment.
3. Dissatisfied with the decision, the Appellant filed the undated Petition of Appeal appealing against both conviction and sentence. His Petition of Appeal, reproduced verbatim, is crafted as follows:
i) That I did not plead guilty to the charge herein.
ii) That the trial court erred in both law and facts by failing to comply with the provisions of Article 50 (2) (h) of the Kenyan Constitution 2010.
iii) That the trial court erred in law and in fact by not considering that the ingredients of the offence herein were not proved to the required standard of law and facts.
iv) That the trial court erred in both law and facts by refusing to consider my defence and mitigation.
PROSECUTION’S TESTIMONY AT THE TRIAL COURT
4. PW1 the Complainant testified before Court and stated that on the 21/3/2024 at around 7.00pm, he left home to a certain house where they normally relax. On greeting his friends someone hit him with a panga on the head cutting him on the left side. He testified that on turning he saw it was his neighbour. He was cut on the left side of the head. He fell down and when he regained consciousness, he found himself at Kehancha Sub – County Hospital. He testified that he was taken to Migori, Ojele Hospital and District Hospital. He added that he went to Kehancha Police station but he was not able to talk. He stated that he was referred to another Hospital in Kehancha then he was referred to MTRH Eldoret. He was eventually issued with a P3 Form. He stated that he knew the Appellant who was a neighbour who sold them land. On cross examination, he testified that there was no dispute or grudge between him and the Appellant and on the particular date he was not armed.
5. PW2 testified that he recalls on the material date at around 7.00pm, he was at Komasincha School at a certain shop and was taking porridge and the Appellant was also present. It was PW2’s testimony that the Appellant cut the complainant with a panga on the head and back. He stated that people started running and going where the commotion was and they found the complainant had been cut by the Appellant who had then ran away. PW1’s mother who was selling tomatoes nearby came and tied the injured area and together they took the complainant to the Hospital. PW2 testified that PW1 was stitched and they came back to Kehancha Police station where they reported the incident. On cross examination he stated that the Appellant was standing near to where he was taking porridge. There were other people who were present. He stated that after a few minutes there was a commotion as people were running while screaming. On going to check, he found PW1 had been cut. He stated that he did not see Complainant being cut, and then again he stated that he saw the Appellant cutting the complainant. He further added that he did not see the Appellant while armed with any panga or weapon. On re-examination he stated that he saw the complainant being cut by the Appellant and when he got to the scene the Complainant had fallen to the ground.
6. PW3 testified before court and stated that the complainant is his son and on the material date she was at Komasincha Market near the school selling tomatoes. She stated that PW1 passed by while going to the place they sell porridge. That she also saw the Appellant who was armed with a panga. It was her testimony that she saw his son greeting her friends and he also saw the Appellant approaching PW1 and she saw him cutting PW1 on the back and when PW1 turned he was cut on the head and that is when PW1 fell down. She stated that she rushed to the scene and started screaming where he found PW1 was already unconscious. PW3 stated that he was able to see the incident happening as she was not too far away. On cross examination she stated that there was no security light but at the time the incident happened it was not yet dark and she was able to see the Appellant standing while holding a panga. She further reiterated what she had said in examination in chief that she saw the Appellant cutting PW1 both the 1 st and 2 nd time.
7. PW4 testified to wit that he is the father to the complainant and on the material date his wife PW3 called him while crying and he took a Motor cycle and went to Komasincha. He testified that on reaching there he found a group of people standing and when he asked what had happened he was told that PW1 had been cut by the Appellant and had been taken to the Hospital. He proceeded to the Hospital where he found his son being treated. On cross examination he stated that he did not witness the incident and was only told by Mwita Marwa that it was the Appellant who had cut his son. He further stated that he had bought land from the Appellants mother and they have stayed there for over 22 years and according to him they had no disputes
8. PW5 the investigating officer testified before court and narrated what PW1 had told him, that the complainant alleged that while in Komasincha Centre the Appellant hit him with a panga for no reason as a result he fell down and he found himself at Migori Referral Hospital. She further informed court that the Appellant went at large but was arrested on the 2.4.2025. She proceeded to charge the Appellant herein basing on the P3 form availed to her. On cross examination PW5 informed court that she did not visit the scene of the incident. She also did not question any other witness who were present at the scene and lastly she did not investigate if they had a land dispute.
9. PW6, the clinical officer produced treatments notes, a P3 form, Discharge Summary, and radiology report for the Complainant herein. On examination, which he did on the 21/3/2024, the Complainant had a deep cut on the skull which was treated. He referred him to Migori County Hospital for a CT scan to be done. He stated that he again saw the patient on the 16/5/2024 and on examination he saw visible scars on the left parietal region extending to the let forehead. That the complainant also complained of memory loss and there was a visible scar with stitch marks, scar on the left hand between thumb and index finger on the left hand. He stated that the injury was one month and 25 days and the weapon used was a sharp object hence classifying the injuries as grievous harm. On cross examination, he stated that he did not ascertain the depth of the wounds and that the radiology report to which he is not the maker thereto did not indicate loss of memory. The witness further stated he also relied on his finding on examination of the complainant at the time he was filling the P3 Form, and that the patient was talking.
DEFENCE TESTIMONY BEFORE THE TRIAL COURT
10. The Appellant testified as DW1 . He gave his sworn testimony. He stated that on the material date he was at Kehancha boda boda stage when three customers came to him to take them to Sirare. That he agreed and bought meat and mrenda which he gave to his mother to take home at around 7.00pm. He testified that he took the customers to Sirare at around 7:30pm. He again testified to taking another customer to Kehancha and they arrived there at around 9.00 P.M and at that point he went home. He stated that the complainant is a neighbour who bought land from his mother and they have known each other for over 20 years without having any disputes. He further stated that the alleged panga was not found in his house, that his parents have a dispute over land but himself as a child he has never been involved. On cross examination he reiterated what he had stated in examination in chief and added that at the time he arrived at Kehancha there were many boda boda around but he does not have a rider who saw him at the stage to be a witness.
11. DW2 the Appellant’s mother testified before the trial court and stated that on the material date at around Komasincha Center, she was at her business place along the road to Ikerege when the Appellant showed up at around 6:50 carrying three people. She further testified and stated that the Appellant gave her meat and murenda and came home at 9:00. That she did no see the Appellant from 6:30 to around 9:00. On cross examination DW2 stated that the Appellant proceeded to Sirare and that she was not with his son at 7:00 p.m. she further reiterated that the Appellant had three pillion passengers.
HEARING OF THE APPEAL
12. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions, which are undated. The Respondent equally filed their undated submissions through Prosecution Counsel, Sharon N. Thyaka.
APPELLANT’S SUBMISSIONS
13. In summary, the Appellant submitted that throughout the hearing the Prosecution had failed to demonstrate how the Complainant was injured. That there was no cause or intention on his part and that the prosecution ought to have investigated the issue of a land dispute that existed between their families. He further submitted that there were a lot of contradiction in the evidence tendered by PW3 and PW4 and that the issue of light at the alleged scene was not carefully addressed by the prosecution making the matter an issue of mistaken identity and not recognition.
14. To this end, prays for the conviction to be quashed and the sentence to be set aside.
RESPONDENT’S SUBMISSIONS
15. Prosecution Counsel submissions were in respect to the grounds of appeal as filed, the main issue that came out clearly was whether the prosecution proved the offence of grievous harm beyond reasonable doubt and according to her submissions the appellant has failed to demonstrate how the trial court erred by not considering that the ingredients of the offence herein were not proved.
16. She further submitted that the trial court took consideration of the Appellant mitigation at the time the sentence was being meted and the Court is urged to uphold the conviction and sentence.
ANALYSIS AND DETERMINATION
17. 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 ) .
18. The issues that arise for determination in this matter are the following:
i) Whether the charge of grievous harm against the Appellant was proved beyond reasonable doubt.
ii) Whether the Appellant’s right under Article 50 (2) (h) of the Constitution was infringed?
iii) Whether the Appellant’s Defence and Mitigation were considered?
iv) Whether the sentence of 15 years’ imprisonment imposed against the Appellant was justified.
19. 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 .”
20. 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 ”.
21. 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 ”.
22. 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).
23. 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.
24. 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.
25. In this case, the Clinical Officer ( PW6 ) who examined the complainant on 21/3/2024 informed Court that the Complainant had a deep cut on the skull which was treated. He further stated that he referred him to Migori County Referral Hospital for CT Scan and further treatment. He again saw the patient on the 16/5/2024 and on examination there was a visible scar on the left parietal region extending to the left forehead. On the Thorax and abdomen, he had visible scars at the back with stitch marks, a scar on the left thumb and index finger on the left hand and he produced the P3 Form which indicates that the complainant went to the hospital with a history of assault. Further, according to him, the injuries were caused by a sharp object and in the P3 Form he classified the injuries as “ grievous harm ”
26. The Court notes that the complainant, in his testimony stated that someone hit him with a panga on the head cutting him on the left side. He testified that on turning he saw it was his neighbour, the Appellant. He was cut on the left side of the head. He fell down and when he regained consciousness, he found himself at Kehancha Sub – County Hospital 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 corroborated by the medical evidence on record.
27. 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 ” .
28. 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 .
29. 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 from the back. This information has been corroborated by several witnesses. In the circumstances, I am also satisfied that this element was satisfied.
30. 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 ”.
31. In this case, as aforesaid, the Appellant and the complainant are neighbours. Both of them testified to knowing each other and in fact the Appellant further buttressed this by saying that he has known the Complainant for a period of over 20 years and they schooled and looked after cattle together.
32. On the issue of lighting and mistaken identity raised by the Appellant, the evidence on record does not support his contention. The incident occurred at about 7.00 p.m. PW3 expressly testified that it was not yet dark at the time. More importantly, this was not a case of identification of a stranger but one of recognition. Both the Appellant and the Complainant were neighbours and had known each other for many years. Indeed, the Appellant himself admitted that he had known the Complainant for over twenty (20) years, stating that they schooled together and even herded cattle together. Such evidence significantly diminishes the possibility of mistaken identity.
33. The Court of Appeal has consistently held that recognition is more reliable than the identification of a stranger because it is based on the witness's prior knowledge of the accused person. In Anjononi & Others v Republic [1980] KLR 59 , the Court observed that recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger, although the Court must still exercise caution.
34. Similarly, in Wamunga v Republic [1989] KLR 424 , the Court emphasized that evidence of visual identification must always be carefully examined to eliminate the possibility of error before a conviction can safely be founded upon it.
35. Having carefully evaluated the circumstances prevailing at the time of the incident, including the time of day, the evidence that it was not yet dark, the close proximity of the parties as neighbours, and their long-standing acquaintance spanning over two decades, I am satisfied that the Complainant's evidence amounted to recognition rather than mere identification. Consequently, the likelihood of mistaken identity was remote, and I find no merit in the Appellant's challenge on that ground.
36. On the Second issue, the Appellant also raised the issue of legal representation under Article 50(2)(h) of the Constitution . Article 50(2)(h) guarantees every accused person the right " to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly ." The obligation imposed upon a trial court is to inform an accused person of this right and, where the circumstances warrant, to facilitate the assignment of State-funded counsel where substantial injustice would otherwise result.
37. From the record of the trial court, it is evident that at the commencement of the proceedings the Appellant was expressly informed of his right to legal representation. Further, the record shows that the Appellant had an advocate on record during the trial proceedings. There is therefore no basis for the contention that he was denied his constitutional right to legal representation under Article 50(2)(h) of the Constitution .
38. In any event, although the offence of grievous harm under Section 234 of the Penal Code attracts a maximum sentence of life imprisonment, the right to State-funded legal representation is not automatic merely because the charge is serious. The constitutional test is whether substantial injustice would otherwise result. In the present case, there is nothing on the record to demonstrate that the Appellant suffered any prejudice or that the absence of State-funded counsel resulted in a miscarriage of justice. On the contrary, he was represented by counsel during the trial, and I am therefore satisfied that his right under Article 50(2)(h) of the Constitution was fully respected.
39. On the third issue, this court also notes that the defence by the Appellant did not tackle the specific accusations that were raised against him.
40. The Appellant raised an alibi defence, stating that at the material time he was engaged in his boda boda business and was ferrying customers between 7.00 p.m. and 9.00 p.m. He maintained that he was therefore not at the scene when the offence is alleged to have occurred.
41. In support of the alibi, DW2, the Appellant's mother, testified that she saw the Appellant at Komasincha Centre at about 6.50 p.m. when he was carrying customers on his motorcycle. She further stated that she next saw him at about 9.00 p.m. when he returned home. Her evidence was intended to support the Appellant's assertion that he was away from the centre during the material period.
42. However, the evidence of DW2 does not conclusively account for the Appellant's whereabouts at the material time. While she testified that she saw him at about 6.50 p.m. and again at 9.00 p.m., the alleged offence occurred at around 7.00 p.m., and she did not accompany or observe the Appellant continuously during the intervening period. Her testimony therefore leaves open the possibility that the Appellant could have been at the scene of the offence at the material time. Having already found that the prosecution's evidence of recognition was credible, cogent and free from the possibility of mistaken identity, I am satisfied that the prosecution successfully displaced the Appellant's alibi beyond reasonable doubt.
43. In addition, where an accused person intends to rely on the defence of alibi, the accused is required to raise it from the start of the case. The Appellant had Counsel, and the same was not raised during the hearing of the prosecution case. To bring it as an issue during the defence hearing and appeal is clearly an afterthought.
44. 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.
45. On whether the sentence of 15 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 ”
46. 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 .”
47. 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.
48. 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 .
49. 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. ……………………………… ”
50. 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. …….. ”
51. Additionally, this Court has also carefully reconsidered the mitigation tendered by the Appellant together with the pre-sentence Report and the Victim Impact Assessment Report that was placed before the trial court. The Presentencing report addressed the Appellant's personal circumstances, social background, and prospects of rehabilitation. The Victim Impact Statement Report addresses the struggles the victim and his family have undergone after the incident. In addition, the report noted that the victim has a result of the attack suffered problems with the eye sight, memory lapses and also likely to be unable to start a family. The details though were not presented in the report.
52. 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 he will always live with the said trauma.
53. The Court further notes that the trial court expressly considered both the mitigation and the contents of the Pre-Sentence Report and the Victim Impact Statement Report before arriving at the sentence of Fifteen (15) 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.
54. 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 Fifteen (15) years was substantially below the statutory maximum and cannot, by any stretch, be described as excessive or manifestly harsh.
55. 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 mitiga
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JUDGMENT
INTRODUCTION
1. The Appellant was charged in the criminal offence of causing grievous harm contrary to Section 234 of the Penal Code . The particulars were that on the 21 st day of March, 2024 at Komasincha area, Kuria West Sub County within Migori Court, he wilfully and unlawfully did grievous harm to HEZRON MOHERE thereby occasioning him grievous bodily harm.
2. The Appellant pleaded not guilty to the charges and the case proceeded to full trial in which the prosecution called 6 witnesses in total. 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 a sworn statement and was cross-examined. He also called one witness in support of his defence. By the Judgment delivered on 15/07/2025, the Appellant was convicted and sentenced to serve 15 year’s imprisonment.
3. Dissatisfied with the decision, the Appellant filed the undated Petition of Appeal appealing against both conviction and sentence. His Petition of Appeal, reproduced verbatim, is crafted as follows:
i) That I did not plead guilty to the charge herein.
ii) That the trial court erred in both law and facts by failing to comply with the provisions of Article 50 (2) (h) of the Kenyan Constitution 2010.
iii) That the trial court erred in law and in fact by not considering that the ingredients of the offence herein were not proved to the required standard of law and facts.
iv) That the trial court erred in both law and facts by refusing to consider my defence and mitigation.
PROSECUTION’S TESTIMONY AT THE TRIAL COURT
4. PW1 the Complainant testified before Court and stated that on the 21/3/2024 at around 7.00pm, he left home to a certain house where they normally relax. On greeting his friends someone hit him with a panga on the head cutting him on the left side. He testified that on turning he saw it was his neighbour. He was cut on the left side of the head. He fell down and when he regained consciousness, he found himself at Kehancha Sub – County Hospital. He testified that he was taken to Migori, Ojele Hospital and District Hospital. He added that he went to Kehancha Police station but he was not able to talk. He stated that he was referred to another Hospital in Kehancha then he was referred to MTRH Eldoret. He was eventually issued with a P3 Form. He stated that he knew the Appellant who was a neighbour who sold them land. On cross examination, he testified that there was no dispute or grudge between him and the Appellant and on the particular date he was not armed.
5. PW2 testified that he recalls on the material date at around 7.00pm, he was at Komasincha School at a certain shop and was taking porridge and the Appellant was also present. It was PW2’s testimony that the Appellant cut the complainant with a panga on the head and back. He stated that people started running and going where the commotion was and they found the complainant had been cut by the Appellant who had then ran away. PW1’s mother who was selling tomatoes nearby came and tied the injured area and together they took the complainant to the Hospital. PW2 testified that PW1 was stitched and they came back to Kehancha Police station where they reported the incident. On cross examination he stated that the Appellant was standing near to where he was taking porridge. There were other people who were present. He stated that after a few minutes there was a commotion as people were running while screaming. On going to check, he found PW1 had been cut. He stated that he did not see Complainant being cut, and then again he stated that he saw the Appellant cutting the complainant. He further added that he did not see the Appellant while armed with any panga or weapon. On re-examination he stated that he saw the complainant being cut by the Appellant and when he got to the scene the Complainant had fallen to the ground.
6. PW3 testified before court and stated that the complainant is his son and on the material date she was at Komasincha Market near the school selling tomatoes. She stated that PW1 passed by while going to the place they sell porridge. That she also saw the Appellant who was armed with a panga. It was her testimony that she saw his son greeting her friends and he also saw the Appellant approaching PW1 and she saw him cutting PW1 on the back and when PW1 turned he was cut on the head and that is when PW1 fell down. She stated that she rushed to the scene and started screaming where he found PW1 was already unconscious. PW3 stated that he was able to see the incident happening as she was not too far away. On cross examination she stated that there was no security light but at the time the incident happened it was not yet dark and she was able to see the Appellant standing while holding a panga. She further reiterated what she had said in examination in chief that she saw the Appellant cutting PW1 both the 1 st and 2 nd time.
7. PW4 testified to wit that he is the father to the complainant and on the material date his wife PW3 called him while crying and he took a Motor cycle and went to Komasincha. He testified that on reaching there he found a group of people standing and when he asked what had happened he was told that PW1 had been cut by the Appellant and had been taken to the Hospital. He proceeded to the Hospital where he found his son being treated. On cross examination he stated that he did not witness the incident and was only told by Mwita Marwa that it was the Appellant who had cut his son. He further stated that he had bought land from the Appellants mother and they have stayed there for over 22 years and according to him they had no disputes
8. PW5 the investigating officer testified before court and narrated what PW1 had told him, that the complainant alleged that while in Komasincha Centre the Appellant hit him with a panga for no reason as a result he fell down and he found himself at Migori Referral Hospital. She further informed court that the Appellant went at large but was arrested on the 2.4.2025. She proceeded to charge the Appellant herein basing on the P3 form availed to her. On cross examination PW5 informed court that she did not visit the scene of the incident. She also did not question any other witness who were present at the scene and lastly she did not investigate if they had a land dispute.
9. PW6, the clinical officer produced treatments notes, a P3 form, Discharge Summary, and radiology report for the Complainant herein. On examination, which he did on the 21/3/2024, the Complainant had a deep cut on the skull which was treated. He referred him to Migori County Hospital for a CT scan to be done. He stated that he again saw the patient on the 16/5/2024 and on examination he saw visible scars on the left parietal region extending to the let forehead. That the complainant also complained of memory loss and there was a visible scar with stitch marks, scar on the left hand between thumb and index finger on the left hand. He stated that the injury was one month and 25 days and the weapon used was a sharp object hence classifying the injuries as grievous harm. On cross examination, he stated that he did not ascertain the depth of the wounds and that the radiology report to which he is not the maker thereto did not indicate loss of memory. The witness further stated he also relied on his finding on examination of the complainant at the time he was filling the P3 Form, and that the patient was talking.
DEFENCE TESTIMONY BEFORE THE TRIAL COURT
10. The Appellant testified as DW1 . He gave his sworn testimony. He stated that on the material date he was at Kehancha boda boda stage when three customers came to him to take them to Sirare. That he agreed and bought meat and mrenda which he gave to his mother to take home at around 7.00pm. He testified that he took the customers to Sirare at around 7:30pm. He again testified to taking another customer to Kehancha and they arrived there at around 9.00 P.M and at that point he went home. He stated that the complainant is a neighbour who bought land from his mother and they have known each other for over 20 years without having any disputes. He further stated that the alleged panga was not found in his house, that his parents have a dispute over land but himself as a child he has never been involved. On cross examination he reiterated what he had stated in examination in chief and added that at the time he arrived at Kehancha there were many boda boda around but he does not have a rider who saw him at the stage to be a witness.
11. DW2 the Appellant’s mother testified before the trial court and stated that on the material date at around Komasincha Center, she was at her business place along the road to Ikerege when the Appellant showed up at around 6:50 carrying three people. She further testified and stated that the Appellant gave her meat and murenda and came home at 9:00. That she did no see the Appellant from 6:30 to around 9:00. On cross examination DW2 stated that the Appellant proceeded to Sirare and that she was not with his son at 7:00 p.m. she further reiterated that the Appellant had three pillion passengers.
HEARING OF THE APPEAL
12. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions, which are undated. The Respondent equally filed their undated submissions through Prosecution Counsel, Sharon N. Thyaka.
APPELLANT’S SUBMISSIONS
13. In summary, the Appellant submitted that throughout the hearing the Prosecution had failed to demonstrate how the Complainant was injured. That there was no cause or intention on his part and that the prosecution ought to have investigated the issue of a land dispute that existed between their families. He further submitted that there were a lot of contradiction in the evidence tendered by PW3 and PW4 and that the issue of light at the alleged scene was not carefully addressed by the prosecution making the matter an issue of mistaken identity and not recognition.
14. To this end, prays for the conviction to be quashed and the sentence to be set aside.
RESPONDENT’S SUBMISSIONS
15. Prosecution Counsel submissions were in respect to the grounds of appeal as filed, the main issue that came out clearly was whether the prosecution proved the offence of grievous harm beyond reasonable doubt and according to her submissions the appellant has failed to demonstrate how the trial court erred by not considering that the ingredients of the offence herein were not proved.
16. She further submitted that the trial court took consideration of the Appellant mitigation at the time the sentence was being meted and the Court is urged to uphold the conviction and sentence.
ANALYSIS AND DETERMINATION
17. 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 ) .
18. The issues that arise for determination in this matter are the following:
i) Whether the charge of grievous harm against the Appellant was proved beyond reasonable doubt.
ii) Whether the Appellant’s right under Article 50 (2) (h) of the Constitution was infringed?
iii) Whether the Appellant’s Defence and Mitigation were considered?
iv) Whether the sentence of 15 years’ imprisonment imposed against the Appellant was justified.
19. 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 .”
20. 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 ”.
21. 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 ”.
22. 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).
23. 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.
24. 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.
25. In this case, the Clinical Officer ( PW6 ) who examined the complainant on 21/3/2024 informed Court that the Complainant had a deep cut on the skull which was treated. He further stated that he referred him to Migori County Referral Hospital for CT Scan and further treatment. He again saw the patient on the 16/5/2024 and on examination there was a visible scar on the left parietal region extending to the left forehead. On the Thorax and abdomen, he had visible scars at the back with stitch marks, a scar on the left thumb and index finger on the left hand and he produced the P3 Form which indicates that the complainant went to the hospital with a history of assault. Further, according to him, the injuries were caused by a sharp object and in the P3 Form he classified the injuries as “ grievous harm ”
26. The Court notes that the complainant, in his testimony stated that someone hit him with a panga on the head cutting him on the left side. He testified that on turning he saw it was his neighbour, the Appellant. He was cut on the left side of the head. He fell down and when he regained consciousness, he found himself at Kehancha Sub – County Hospital 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 corroborated by the medical evidence on record.
27. 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 ” .
28. 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 .
29. 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 from the back. This information has been corroborated by several witnesses. In the circumstances, I am also satisfied that this element was satisfied.
30. 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 ”.
31. In this case, as aforesaid, the Appellant and the complainant are neighbours. Both of them testified to knowing each other and in fact the Appellant further buttressed this by saying that he has known the Complainant for a period of over 20 years and they schooled and looked after cattle together.
32. On the issue of lighting and mistaken identity raised by the Appellant, the evidence on record does not support his contention. The incident occurred at about 7.00 p.m. PW3 expressly testified that it was not yet dark at the time. More importantly, this was not a case of identification of a stranger but one of recognition. Both the Appellant and the Complainant were neighbours and had known each other for many years. Indeed, the Appellant himself admitted that he had known the Complainant for over twenty (20) years, stating that they schooled together and even herded cattle together. Such evidence significantly diminishes the possibility of mistaken identity.
33. The Court of Appeal has consistently held that recognition is more reliable than the identification of a stranger because it is based on the witness's prior knowledge of the accused person. In Anjononi & Others v Republic [1980] KLR 59 , the Court observed that recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger, although the Court must still exercise caution.
34. Similarly, in Wamunga v Republic [1989] KLR 424 , the Court emphasized that evidence of visual identification must always be carefully examined to eliminate the possibility of error before a conviction can safely be founded upon it.
35. Having carefully evaluated the circumstances prevailing at the time of the incident, including the time of day, the evidence that it was not yet dark, the close proximity of the parties as neighbours, and their long-standing acquaintance spanning over two decades, I am satisfied that the Complainant's evidence amounted to recognition rather than mere identification. Consequently, the likelihood of mistaken identity was remote, and I find no merit in the Appellant's challenge on that ground.
36. On the Second issue, the Appellant also raised the issue of legal representation under Article 50(2)(h) of the Constitution . Article 50(2)(h) guarantees every accused person the right " to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly ." The obligation imposed upon a trial court is to inform an accused person of this right and, where the circumstances warrant, to facilitate the assignment of State-funded counsel where substantial injustice would otherwise result.
37. From the record of the trial court, it is evident that at the commencement of the proceedings the Appellant was expressly informed of his right to legal representation. Further, the record shows that the Appellant had an advocate on record during the trial proceedings. There is therefore no basis for the contention that he was denied his constitutional right to legal representation under Article 50(2)(h) of the Constitution .
38. In any event, although the offence of grievous harm under Section 234 of the Penal Code attracts a maximum sentence of life imprisonment, the right to State-funded legal representation is not automatic merely because the charge is serious. The constitutional test is whether substantial injustice would otherwise result. In the present case, there is nothing on the record to demonstrate that the Appellant suffered any prejudice or that the absence of State-funded counsel resulted in a miscarriage of justice. On the contrary, he was represented by counsel during the trial, and I am therefore satisfied that his right under Article 50(2)(h) of the Constitution was fully respected.
39. On the third issue, this court also notes that the defence by the Appellant did not tackle the specific accusations that were raised against him.
40. The Appellant raised an alibi defence, stating that at the material time he was engaged in his boda boda business and was ferrying customers between 7.00 p.m. and 9.00 p.m. He maintained that he was therefore not at the scene when the offence is alleged to have occurred.
41. In support of the alibi, DW2, the Appellant's mother, testified that she saw the Appellant at Komasincha Centre at about 6.50 p.m. when he was carrying customers on his motorcycle. She further stated that she next saw him at about 9.00 p.m. when he returned home. Her evidence was intended to support the Appellant's assertion that he was away from the centre during the material period.
42. However, the evidence of DW2 does not conclusively account for the Appellant's whereabouts at the material time. While she testified that she saw him at about 6.50 p.m. and again at 9.00 p.m., the alleged offence occurred at around 7.00 p.m., and she did not accompany or observe the Appellant continuously during the intervening period. Her testimony therefore leaves open the possibility that the Appellant could have been at the scene of the offence at the material time. Having already found that the prosecution's evidence of recognition was credible, cogent and free from the possibility of mistaken identity, I am satisfied that the prosecution successfully displaced the Appellant's alibi beyond reasonable doubt.
43. In addition, where an accused person intends to rely on the defence of alibi, the accused is required to raise it from the start of the case. The Appellant had Counsel, and the same was not raised during the hearing of the prosecution case. To bring it as an issue during the defence hearing and appeal is clearly an afterthought.
44. 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.
45. On whether the sentence of 15 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 ”
46. 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 .”
47. 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.
48. 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 .
49. 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. ……………………………… ”
50. 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. …….. ”
51. Additionally, this Court has also carefully reconsidered the mitigation tendered by the Appellant together with the pre-sentence Report and the Victim Impact Assessment Report that was placed before the trial court. The Presentencing report addressed the Appellant's personal circumstances, social background, and prospects of rehabilitation. The Victim Impact Statement Report addresses the struggles the victim and his family have undergone after the incident. In addition, the report noted that the victim has a result of the attack suffered problems with the eye sight, memory lapses and also likely to be unable to start a family. The details though were not presented in the report.
52. 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 he will always live with the said trauma.
53. The Court further notes that the trial court expressly considered both the mitigation and the contents of the Pre-Sentence Report and the Victim Impact Statement Report before arriving at the sentence of Fifteen (15) 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.
54. 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 Fifteen (15) years was substantially below the statutory maximum and cannot, by any stretch, be described as excessive or manifestly harsh.
55. 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 mitiga
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