[2022] KEHC 16103 (KLR)

Alphonse v Republic (Criminal Appeal E070 of 2021) [2022] KEHC 16103 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16103 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E070 of 2021

A. Ong’injo, J

November 11, 2022

Between

Lesiamanga Jacob Alphonse

Appellant

and

Republic

Respondent

Judgment

1. The Appellant Lesiamanga Jacob Alphonse was charged with the offence of causing grievous harm contrary to section 234 of the Penal Code in Taveta Magistrate’s Court CRC No. E035 of 2020.

2. Particulars were that Lesiamanga Jacob Alphonse on the 22nd day of September, 2020 at around 12:30hours in Marikiti village, Taveta Sub-County unlawfully did grievous harm to Mercy Nakio Samiji.

3. The appellant was convicted and sentenced to serve 4 years jail term for the offence of grievous harm contrary to section 234 of the Penal Code. The appellant was aggrieved by the conviction and sentenced and filed the appeal herein on the grounds:1. That the learned Magistrate completely went against evidence presented before him and as a result arrived at a wrong conclusion that the prosecution had proved its case beyond reasonable doubt by ignoring that injuries occasioned were not grievous harm and that the appellant should have been charged under section 250 or 251 of the Penal Code and not section 234 of the Penal Code.2. That the learned Magistrate misdirected himself in holding that the appellant had failed to rebut the prosecution’s evidence despite a very consistent evidence by the appellant that it was PW1 who provoked her.3. That the learned Magistrate failed to appreciate the manifest contradictions and inconsistencies in the testimonies of the prosecution evidence and completely ignored the appellants evidence.4. That the learned Magistrate imposed an excessive sentence under the circumstances of the case.5. That the learned Magistrate erred in completely ignoring the contradictions and inconsistencies in the evidence adduced by prosecution witnesses.6. That the learned Magistrate erred in law and fact in holding the prosecution had proved its case beyond all reasonable doubt.7. That the learned Magistrate erred by going out of her way to source for material to support the unfavorably conclusion arrived at. By so doing the learned Magistrate descended into the arena of litigation and took up the cause of a party with litigation. His decision is therefore colored by a clear bias against the appellant.8. That the learned Magistrate erred by predisposing his mind to a position unfavorable to the Appellant and thereby depriving him of his right to a fair and unbiased hearing.

4. The appellant asked the court to set aside the conviction and acquit the appellant and/or that the sentence be substitute with a lenient one.

5. The prosecution evidence was that the complainant was together with PW2 – Joseph Sabaya and PW4 John Saleri Mtawa planting beacons on the farm when the appellant and his father attacked her and the appellant used a club to assault her on the neck and she was injured, she called and reported to PW3 Beatrice Kodi Mtawa – A/Chief of Mahoo who went to scene and ordered that the beacons should be laced and she also advised the complainant to go to hospital.

6. PW3 said the land dispute between the complainant and appellant and his father was resolved before the DCC and appellants father agreed that the complainant should go to the land. PW3 found appellant at the scene with a club.

7. The clinical officer Mr.Ombayo examined complainant and filled P3 form assessing injuries as maim. He produced the P3 – Ex P3. He also produced x-ray done on the complainant’s neck and head and Ex P4(a) and (b) as well as the treatment notes Ex P5. The clinical officer testified that the complainant was treated on the same day she was injured and referred for physiotherapy.

8. The appellant in his sworn statement in defence and that said he didn’t commit the offence. He said the complainant comes from Mahoo he went to Malkiroliti. He said he didn’t have a grudge with the complainant. He said it is his father who assaulted the complainant and he went to intervene.

9. This appeal was canvassed by way of written submissions. The appellant’s submissions dated September 19, 2022 and filed on September 20, 2022 were to the effect that the injuries suffered by the complainant were not a grievous bodily harm and that the trial Magistrate misdirected himself to find that complainant suffered grievous harm when her injuries were not permanent or serious in nature. It was submitted that the complainant was not admitted, she went on with her business of placing beacons after alleged assault and went on her own to hospital, the next day, she visited the land and went to police station and could not have suffered grievous harm.

10. The respondent filed submissions on September 7, 2022 and said that the prosecution had proved beyond all reasonable doubt that the appellant is the one who assaulted the complainant and caused her grievous bodily harm as he was identified by the prosecution witnesses and the clinical officer PW6 examined PW1 and assessed injuries. The respondent argued that the prosecution tendered water tight evidence which confirmed the complainant suffered injuries that were grievous in nature.

11. From the grounds of appeal, the submissions and the records of the trial court the issues for determinations are whether the appeal has merit . In the P3 form – injuries are assessed as maim whereas the trial court found that the appellant inflicted grievous harm on complainant . From P3 the complainant only had a swelling and restricted movement of the neck. She had no fracture or dislocation. Her injuries could not have amounted to grievous bodily harm. She was put to analgesics and discharged with instructions to attend physiotherapy.

12. This court finds that injuries suffered were mere assault under section 250 or 251 of the Penal Code and his sentence substituted to one year 6 months with effect from date of sentence to period already served.

HON A ONG’INJO – JUDGE11. 202211/11/2022BEFORE HON LADY JUSTICE ADWERA ONG’INJO-JOtolo –Court AssistantMr Chirchir for respondentCourtJUDGEMENT DELIVERED, DATED AND SIGNED IN COURT THIS 11TH NOVEMBER, 2022. HON A ONG’INJO – JUDGE11. 2022