[2017] KEHC 9267 (KLR)
The court found that while the appellant did assault the complainant, the evidence presented, particularly the medical evidence, did not conclusively establish that the injuries amounted to grievous harm as required under Section 234 of the Penal Code. The trial magistrate failed to make an independent assessment of...
Source-derived case information.
- Citation
- [2017] KEHC 9267 (KLR)
- Parties
- Appellant: Bernard Shikala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 34 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- DAS Majanja
- Legal Topics
- Grievous Harm, Assault, Sentencing, Evidence Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bernard Shikala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of grievous harm against the appellant beyond reasonable doubt.
- 2 Whether the injuries sustained by the complainant amounted to grievous harm as defined by law.
- 3 Whether the conviction and sentence imposed by the trial court were appropriate in the circumstances.
Ratio Decidendi
The court found that while the appellant did assault the complainant, the evidence presented, particularly the medical evidence, did not conclusively establish that the injuries amounted to grievous harm as required under Section 234 of the Penal Code. The trial magistrate failed to make an independent assessment of the injuries. Consequently, the conviction for grievous harm could not stand. The court substituted the conviction with the lesser offence of assault under Section 250 of the Penal Code and reduced the sentence to one year imprisonment, with the balance to be served under community service. The appellant was ordered released unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- Conviction for grievous harm quashed and substituted with conviction for assault contrary to section 250 of the Penal Code.
- Sentence reduced to 1-year imprisonment, balance to be served under community service.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 34 OF 2017
BETWEEN
BERNARD SHIKALA …………………………………………..APPELLANT
AND
REPUBLIC …………………………….…………………..…..RESPONDENT
(Being an appeal from the original convictions and sentence of Hon. F.
Makoyo, RM dated 18th January 2017 at the Kakamega Chief Magistrate’s
Court in Criminal Case No. 60 of 2015)
J U D G M E N T
1. This is an appeal by Bernard Shikala who was convicted of the offence of causing grievous harm contrary to Section 234 of the Penal Code. He was sentenced to pay a fine of Kshs. 50,000/= in default to serve 3 years’ imprisonment.
2. The particulars of the charge were that on 29th September, 2014 at Kwirenyi Village, Kakamega East District within Kakamega County, the accused person unlawfully did harm Wilson Sango.
3. The prosecution case was that on 23rd February, 2015, Wilson Sengo (PW1) was walking home when the appellant attacked him with a panga and bit off his earlobe. PW1’s cries led to his wife, Adeline Amwamda (PW2) coming over where she found the appellant biting PW1’s ear. PW3, Hesborn Ingani witnessed both appellant and PW1 fighting and saw the injury to the ear.
4. In his defence, the appellant stated that he was the one who was attacked by PW 1 and he even got injured. His witnesses Wycliffe Mambiri (DW2) and Lydia Masitsa (DW) were not present at the scene.
5. I have considered the evidence of the prosecution and I am satisfied that the prosecution proved that the appellant assaulted the complainant. Whether the offence amounts to grievous harm depends on the assessment of injuries. In this case the P3 form was produced by the doctor or under section 77 of the Evidence Act. The trial magistrate did not make an assessment of the injury from what he observed. In the circumstances I allow the appeal and substitute the conviction with that of assault contrary to section 250 of the Penal Code.
6. Accordingly, the sentence is reduced to a 1-year imprisonment. The balance of the sentence shall be served under community service. The appellant is ordered released unless otherwise lawfully held.
D.S. MAJANJA
JUDGE
Dated and delivered at Kakamega this 30th day of August 2017.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Ng’etich, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.