[1982] KECA 49 (KLR)
The Court of Appeal upheld the concurrent findings of fact by the trial court and the High Court, concluding that the appellant was properly identified as the person who assaulted and wounded both complainants. The evidence, including eyewitness testimony and medical reports, established beyond reasonable doubt that...
Source-derived case information.
- Citation
- [1982] KECA 49 (KLR)
- Parties
- Appellant: Dishon Ochola; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 143 of 1981
- Procedural Posture
- Criminal Appeal / Second Appeal From Conviction and Sentence
- Outcome
- appeal dismissed; conviction and sentence upheld
- Judges
- CHE Miller, KD Potter
- Legal Topics
- Grievous Harm, Assault Causing Actual Bodily Harm, Evidence Assessment, Identification of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Ochola
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the appellant was properly identified as the person who assaulted and wounded the complainants.
- 2 Whether the evidence supported the conviction for grievous harm and assault causing actual bodily harm.
- 3 Whether there was any misdirection or error in the findings of the lower courts.
Ratio Decidendi
The Court of Appeal upheld the concurrent findings of fact by the trial court and the High Court, concluding that the appellant was properly identified as the person who assaulted and wounded both complainants. The evidence, including eyewitness testimony and medical reports, established beyond reasonable doubt that the appellant committed the offences of grievous harm and assault causing actual bodily harm. The absence of the weapon at the time of arrest did not create reasonable doubt, as the appellant could have disposed of it. The magistrate's minor error regarding the presence of Chief Inspector Itote at the time of the stabbing did not affect the overall conclusion. The appeal was...
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(Coram: Madan , Miller and Potter, JJ.A.)
CRIMINAL APPEAL NO. 143 OF 1981
BETWEEN
DISHON OCHOLA ….............................APPELLANT
AND
REPUBLIC …..................................... RESPONDENT
(Appeal from a judgment of the High Courtof Kenya at Mombasa (Kneller, J) dated7th November, 1981 in Criminal Appeal No.181 of 1981
JUDGMENT OF THE COURT
This is a second appeal by this appellant, his first appeal to the High Court having been dismissed, against conviction for grievous harm and assault causing actual bodily harm, contrary to sections 234 and 251 respectively of the penal Code. On the night of 14th March, 1981, the appellant was drinking in Mini Bar, Mkowe, Lamu District. So also were two Administration Police Officers named Jamlick Mwaniki and Timothy Nyamu. As is both normal and customary in and around such places of pleasure there were also a number of ladies of leisure hanging about there among them one Njeri. This lady began bragging that she was having a drink with officers of the Administration police, no doubt a rare honour for her. The appellant passed some derogatory remarks about Administrative police Officers. When Mwaniki was leaving the bar, he came face to face with the appellant. Words passed between about Njeri. A struggle ensued during the course of which Mwaniki was stabbed in his ribs with a sharp instrument. Mwaniki fell down. The appellant ran. When Nyamu tried to intercept him he was stabbed in his left shoulder. When the appellant was arrested soon thereafter by G.S.U. Chief Inspector Simon Itote no weapon was found on him.
Mwaniki’s stab would in his chest was caused by a sharp instrument which had collapsed the lung. His wound was medically assessed as grievous harm. Nyamu’s shoulder would which was not serious was assessed as harm. The medical officer who examined Mwaniki and Nyamu agreed that possibly a knife had been used to cause the two wounds.
Not only did the two lower courts make concurrent findings of fact that it was the appellant who assaulted and wounded both Mwaniki and Nyamu but the learned judge on first appeal to the High Court stated the irrefutable when he pointed out that when he pointed out that when Mwaniki and Nyamu received their respective wounds the appellant alone was engaged in combat separately with each of them and there was no third person involved. The barman (P.W.3). testified that the appellant had a knife in his belt. He could have got rid of the knife without any great difficulty in the darkness. The magistrate erred when he said in his judgment that the last stabbing was witnessed by Chief Inspector Itote who separated the contestants. The magistrate was confused. Itote said no such thing in his evidence. However, without it also on the evidence before him the magistrate could not have come to any other reasonable conclusion but to convict the appellant as he did. The appeal is ordered to be dismissed.
Dated at Mombasa this 27th day of January, 1982.
C.B. MADAN
JUDGE OF APPEAL;
C.H.E. MILLER
JUDGE OF APPEAL
K.D. POTTER
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR