https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10124

Nzoka v Republic (Criminal Appeal E070 of 2025) [2026] KEHC 10124 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10124 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E070 of 2025 RA Oganyo, J July 10, 2026 Between Daniel Wambua Nzoka Appellant and Republic Respondent Judgment Introduction 1.The Appellant herein, Daniel Wambua Nzoka, was charged in the Senior Principal Magistrate Court at Tawa, Criminal Case No. E149 of 2024. He faced one main count of grievous harm 2.The particulars of the offence were as follows;Grievous Harm Contrary to Section 234 of the Penal CodeOn the 28th day of December, 2022 at around 1000 hrs in Miangeni village, Mavindimi location, Kathonzweni Sub County within Makueni County unlawfully did grievous harm to Jackson Mutinda Matheka. 3.When arraigned before Court, the Accused pleaded not guilty to the offences. After a full trial, the Accused was found guilty and convicted as charged the offence. He was subsequently sentenced serve 5 years imprisonment on the charge of grievous harm. The Appeal 4.The Appellant herein was aggrieved by the conviction and sentence. He filed a Petition of Appeal dated 18th September, 2025. The Appellant challenged the conviction and sentence in alleging that the trial magistrate erred in both facts and law by failing to consider the key ingredients of grievous harm that were not proven beyond reasonable doubt, that the prosecution case was married with contradictions and inconsistencies, and that the trial magistrate did not consider his defense. 5.This Court was then urged to allow the appeal by quashing the conviction, setting aside the sentence and forthwith setting the Appellant at liberty. 6.During the hearing of the appeal, the Appellant relied on his written submissions wherein he expounded on the grounds of appeal. He also referred to various decisions. 7.The prosecution also filed written submissions. Analysis 8.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 9.In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 10.In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with submissions by the parties and consider the only issue for determination being whether the prosecution proved the elements of grievous harm beyond reasonable doubt. 11.Section 234 of the Penal Code provides as follows;“ 234.Grievous harm Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.” 12.For the accused to be convicted of the offence of doing grievous harm contrary to section 234 of The Penal Code, the prosecution has to prove each of the following essential ingredients beyond reasonable doubt;a.The victim sustained grievous harm.b.The harm was caused unlawfully.c.The accused caused or participated in causing the grievous harm. 13.Concerning the first element, section 4 of the Penal Code defines 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” 14.The court in the case of Pius Mutua Mbuvi v Republic [2021] eKLR held that; “The specificities of "grievous harm" therefore are; (1) 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 (2) a mental injury may amount to grievous harm but not to bodily harm (3) the injury must be "of such a nature as to cause or be likely to cause" permanent injury to health.” 15.I have looked at the record of appeal and the complainant (PW1) testified that he lost three lower teeth and sustained a cut on the mouth, in addition to injuries on his chest and leg. He was treated at Mavindini Health Centre and later examined at the Makueni County Referral Hospital by PW5, Jackson Kavenge, a clinical officer, on 5th January 2023. PW5 confirmed that he examined PW1 and noted an alignment wire on the lower gum as well as stitched wounds. He assessed the injury as grievous harm. The Appellant did not dispute the extent of these injuries, only the mechanism of how they were sustained. The loss of teeth and severe jaw injury clearly amount to permanent disfigurement and serious bodily injury. 16.I find that the first element was proved to the required standard. 17.The second element is that the harm was unlawful. This means that the injury was caused without any lawful justification or excuse. The Appellant’s defense was one of self-defense. He claimed that the complainant became violent over a land dispute and bit his index finger, and that in reflexively pulling his hand away, he shocked the complainant’s teeth, causing the injuries. DW4, a clinician, confirmed the Appellant had a lacerated index finger. 18.Where self-defense is raised, the test applied by our courts is a subjective one, that is, whether the accused honestly believed that the force used was necessary to repel an imminent threat, and whether that force was proportionate to the threat. This principle was affirmed by the Court of Appeal in Ahmed Mohamed Omar & 5 Others v Republic, Criminal Appeal No. 414 of 2012 [2014] eKLR. 19.As correctly noted by the trial magistrate, the theory that the complainant lost multiple teeth and sustained deep wounds merely because the Appellant pulled his bitten finger away stretches credulity. The severity of the complainant’s injuries is consistent with a forceful, deliberate blow from a weapon, not a mere reflex action. Furthermore, the Appellant and his brothers had trespassed into the complainant’s home. The prosecution established that the Appellant was armed with a panga and initiated the unprovoked assault. Therefore, there was no lawful justification or excuse for the harm inflicted. 20.The third element is whether the accused participated in causing the grievous harm. The complainant identified the Appellant as his attacker. This was not a case of a stranger identified under difficult conditions as the Appellant was well known to the complainant, being the son of the man from whom the complainant had purchased the land at the centre of the underlying dispute. The complainant's account was corroborated by PW2 and PW3, both of whom were present at the scene doing work for the complainant and who gave consistent evidence that the Appellant arrived armed with a panga and struck the complainant, causing him to bleed from the mouth. 21.The Appellant raised the issue of contradictions in the prosecution’s evidence, specifically regarding the exact words uttered by the Appellant before the attack, PW2 heard “No No” while PW3 heard “I will kill you” and the exact number of men resent. It is a well-settled legal principle, as enunciated in Erick Otieno Arum v Republic [2006] eKLR, that minor discrepancies or contradictions that do not go to the root of the prosecution’s case cannot destroy it. Minor variances in testimonies are expected in human recollection of a chaotic and traumatic event. They do not displace the core, corroborated fact that the Appellant attacked the complainant. 22.The Appellant also faulted the prosecution for failing to produce the panga used in the attack. While the recovery of an offensive weapon is helpful, it is not a mandatory requirement for securing a conviction where eyewitness testimony and medical evidence firmly establish the occurrence and nature of the assault as was held by the Court of Appeal in Keino v Republic, Criminal Appeal No. 203 of 2020 [2024] KECA 710 (KLR). The coherent testimonies of PW1, PW2, and PW3 firmly place the Appellant as the perpetrator of the grievous harm. 23.His defense is purely denial with no corroborative evidence and as such of less or no probative value and I proceed to dismiss the same. Disposition 24.The upshot of the foregoing is that the prosecution’s case is watertight and there exists no doubt that it is indeed the accused who did grievous harm to the complainant. 25.The net effect being that the prosecution proved its case against the accused person and consequently the accused is convicted for the offence of grievous harm contrary to section 234 of the Penal code under section 215 of the CPC. 26.The trial court’s finding is hereby upheld.It is so ordered.Right of appeal 14 days DATED, SIGNED AND DELIVERED AT NAIROBI VIA TEAMS THIS 10TH DAY OF JULY, 2026......................ROSELINE A. OGANYOJUDGE.In the presence of; -Court Assistant…E, SanaAppellant called …. Present at Kitengela prisonCounsel for the Respondent (DPP)…Absent