1. Reuben Mairura Onserio, the respondent herein, was acquitted of grievous harm contrary to section 234 of the Penal Code.
2. The particulars of the offence are that on 1st May 2020 at Etago sub-county within Kisii County, unlawfully did grievous harm to Aminga Ocharo.
3. The appellant was aggrieved and filed this appeal against the acquittal. The following grounds of appeal were raised:
a) That the honourable trial magistrate erred in law and fact by failing to consider the ingredients of the offence of grievous harm contrary to section 234 of the Penal Code.
b) That the honourable trial magistrate erred in law and fact by acquitting the respondent of the offence of grievous harm contrary to section 234 of the Penal Code without considering the weight of the evidence adduced.
c) That the learned trial magistrate erred in law by dismissing the charges on flimsy technicalities at this moment offending sound judicial principles.
d) That the honourable trial magistrate erred in law and fact by failing to acknowledge that a single witness can prove a fact.
e) That the honourable trial magistrate erred law and fact by failing to acknowledge that a single witness can prove a fact.
f) That the judgment of the trial magistrate is against the weight of evidence.
4. The state did not file any grounds of opposition or submissions.
5. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. For the appeal court to reach a fair decision, the appellant must ensure the appeal record is accurate. The record that was filed has several gaps. Some are completed by inserting words by hand, but still, they do not make sense. In future, before an appeal file is taken to the judge for admission, the Deputy Registrar should ensure its completeness.
7. Aminga Ocharo (PW1) testified that he found the respondent having removed his cattle “catch” [sic] and had removed the fence, which he was splitting as firewood. He (the respondent, lifted him and “planted” him down. They kicked him four times. He was injured on the back.
8. The complainant’s evidence was contradicted by the evidence of Richard Ongera Aminga, his son (PW2). The evidence of PW2 was that he learnt that the dispute was on some firewood that the respondent was splitting. He never testified of any damaged cowshed or fence.
9. Linet Mogotu (PW3) testified that the respondent and the complainant were neighbours and that a path divided their homes. This contradicted the complainant, who testified that they lived far away from each other. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
10. I find the complainant to be an untrustworthy witness.
11. Section 234 of the Penal Code provides:
Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.
Section 4 of the Penal Code interprets grievous harm 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;
12. The Medical Examination Report (P3) indicates that the complainant suffered severe tenderness on the back and posterior chest. This cannot fit in the description of grievous harm.
13. In his defence, the respondent contended that he was cutting firewood on the road. When the complainant started shouting, he left and did not attack him.
14. The respondent had no duty to prove his innocence. The prosecution had the onus to prove its case beyond any reasonable doubt. The contradictions in the prosecution evidence and failure to adduce evidence that could prove the offence entitled the respondent to an acquittal.
15. The appeal lacks merit, and the same is dismissed.
Delivered and signed at Kisii this 28th day of May 2024
2. The particulars of the offence are that on 1st May 2020 at Etago sub-county within Kisii County, unlawfully did grievous harm to Aminga Ocharo.
3. The appellant was aggrieved and filed this appeal against the acquittal. The following grounds of appeal were raised:
a) That the honourable trial magistrate erred in law and fact by failing to consider the ingredients of the offence of grievous harm contrary to section 234 of the Penal Code.
b) That the honourable trial magistrate erred in law and fact by acquitting the respondent of the offence of grievous harm contrary to section 234 of the Penal Code without considering the weight of the evidence adduced.
c) That the learned trial magistrate erred in law by dismissing the charges on flimsy technicalities at this moment offending sound judicial principles.
d) That the honourable trial magistrate erred in law and fact by failing to acknowledge that a single witness can prove a fact.
e) That the honourable trial magistrate erred law and fact by failing to acknowledge that a single witness can prove a fact.
f) That the judgment of the trial magistrate is against the weight of evidence.
4. The state did not file any grounds of opposition or submissions.
5. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. For the appeal court to reach a fair decision, the appellant must ensure the appeal record is accurate. The record that was filed has several gaps. Some are completed by inserting words by hand, but still, they do not make sense. In future, before an appeal file is taken to the judge for admission, the Deputy Registrar should ensure its completeness.
7. Aminga Ocharo (PW1) testified that he found the respondent having removed his cattle “catch” [sic] and had removed the fence, which he was splitting as firewood. He (the respondent, lifted him and “planted” him down. They kicked him four times. He was injured on the back.
8. The complainant’s evidence was contradicted by the evidence of Richard Ongera Aminga, his son (PW2). The evidence of PW2 was that he learnt that the dispute was on some firewood that the respondent was splitting. He never testified of any damaged cowshed or fence.
9. Linet Mogotu (PW3) testified that the respondent and the complainant were neighbours and that a path divided their homes. This contradicted the complainant, who testified that they lived far away from each other. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
10. I find the complainant to be an untrustworthy witness.
11. Section 234 of the Penal Code provides:
Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.
Section 4 of the Penal Code interprets grievous harm 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;
12. The Medical Examination Report (P3) indicates that the complainant suffered severe tenderness on the back and posterior chest. This cannot fit in the description of grievous harm.
13. In his defence, the respondent contended that he was cutting firewood on the road. When the complainant started shouting, he left and did not attack him.
14. The respondent had no duty to prove his innocence. The prosecution had the onus to prove its case beyond any reasonable doubt. The contradictions in the prosecution evidence and failure to adduce evidence that could prove the offence entitled the respondent to an acquittal.
15. The appeal lacks merit, and the same is dismissed.
Delivered and signed at Kisii this 28th day of May 2024