[2022] KEHC 1896 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL APPEAL NO.E035 OF 2021

1. FESTUS WERE

2. ABEL OKOTH...............................................................APPELLANTS

VERSUS

REPUBLIC.........................................................................RESPONDENT

J U D G M E N T

[1] The appellant, Festus Were Omire and Abel Okoth, appeared before the Chief Magistrate at Busia facing a charge of grevious harm, contrary to S.234 of the Penal Code. It was alleged that on the 4th April 2016 at Sikura village Butula within Busia County they jointly and unlawfully assaulted Evans Mbalam Wesonga thereby occasioning him grevious harm.

[2] Both appellants denied the charge but after a full trial were convicted and sentenced to serve five (5) years imprisonment each. Being dissatisfied with the conviction and sentence, both preferred separate appeals which were consolidated and heard together by way of written submissions which were herein filed on their behalf by Wasilwa Makhara & Co. Advocates.

[3]The Respondent’s submissions in opposition to the appeals were filed by the Office of the Director of Public Prosecutions through the Learned Prosecution Counsel, Mr. Gibson Mayaba. These were considered by this court against the appellants’ grounds of appeal and submissions.

[4] Being a first appellate court, this court’s duty was to revisit the evidence availed at the trial and arrive at its own conclusion bearing in mind that the trial court had the advantage of seeing and hearing the witnesses (see, Okeno Vs. Rep [1972] E.A 32).

In that regard, the prosecution case was briefly that the appellants and the complainant Evans Wesonga (PW 3) are neighbours and on the material date in the morning hours while the complainant was in a farm together with his mother, Joyce Nekesa Wesonga (PW 2) and their farm workers including Evalyne Auma Otieno (PW 1) the appellants confronted them while armed with a machete (panga) and wooden club (rungu) and assaulted the complainant while defending his mother from the first appellant (Festus) who had threatened to kill her and aimed the machete towards her head and neck.

[5]In the process of defending his mother, the complainant was slashed on the right hand wrist with the panga which he got hold of but was hit on his left wrist by the second appellant (Abel) who was using a hoe (jembe) stick. His mother (PW 2) and the farmworker (PW 1) confirmed that the first appellant was responsible for cutting his (complainant’s) hand with the panga.

[6]A clinical officer, Amadadi Brown (PW 4) examined the complainant and compiled the necessary medical report known as the P3 form (P.Ex 2) indicating that the degree of the injury suffered was “maim”. This related to the injury on the right wrist only. The matter was reported to the police after which the two appellants were charged with the present offence.

[7]Both appellants were placed on their defence after closure of the prosecution case, but they each elected their right to remain silent. The trial court considered the evidence adduced against them by the prosecution and concluded that the case against them had been proved beyond reasonable doubt. They were consequently convicted and sentenced accordingly.

[8] Having reconsidered the evidence this court holds the opinion that the necessary ingredients of the charge were fully established as there was no substantial dispute that the complainant indeed suffered a cut injury on his right wrist.

The medical evidence availed through the clinical officer (PW 4) confirmed as much. The extent of the injury was classified as “maim” which means the destruction or permanent disabling of any external or internal organ, member or sense. Any harm which amounts to a maim is grevious harm (see, S.4 of the Penal Code).

[9]The evidence by the complainant (PW 3) as supported and/or corroborated by that of the complainant’s mother (PW 2) and the farmworker (PW 1) established that the complainant’s injury was as a result of an unlawful act of assault committed against him by an individual or group of individuals. Indeed, it was that criminal act which occasioned injury on the complainant’s right wrist although he alluded to another injury on the left wrist which was however, not established by the medical evidence led by the clinical officer (PW 4).

[10]The charge related to the injury on the right hand of the complainant and this was confirmed to be the injury on the complainant’s right wrist which amounted to grevious harm.

The bone of contention and indeed the only issue for determination was the appellant’s alleged culpability and criminal responsibility for the unlawful act of assault against the complainant.

[11] Both appellants denied the offence and opted not to give any explanation or defence to the allegations made by the prosecution eye witnesses i.e. PW1,2 and 3 against them. It was their rights to do so as the burden to prove the case against them lay with the prosecution upon a standard of proof which is beyond any reasonable doubt. There is no duty placed on an accused person to prove his innocence.

[12] Herein, there was credible evidence from the complainant (PW 3), the complainant’s mother (PW 2) and their farm hand (PW 1) which established and proved beyond reasonable doubt that the first appellant (Festus) was responsible for occasioning grevious harm to the complainant. This position did not apply to the second appellant (Abel) who might have been present at the material scene but did not in any way harm the complainant. There was no evidence that he aided and abetted the commission of the offence by the first appellant.

[13] It would therefore follow that the conviction of the second appellant by the trial court for the lesser offence of assault causing actual bodily harm was erroneous and indeed the first appellant for the same offence.

The medical evidence was clear that the complainant suffered harm which amounted to grevious harm. There was therefore no room for the trial court to invoke S.179 of the Criminal Procedure Code and reduce the charge from grevious harm under S.234 of the Penal Code to assault causing actual bodily harm under S.251 of the Penal Code.

[14]In the circumstances, the first appellant’s conviction under S.251 of the Penal Code is hereby set aside and substituted for a conviction under S.234 of the Penal Code.

The second appellant’s conviction is hereby quashed in its entirety and the sentence imposed on him by the trial court is set aside.

The sentence imposed on the first appellant was lawful even for the offence of grevious harm, but was rather excessive regard being given to the circumstances leading to the offence, the circumstances under which it was committed among persons who are neighbours and the age of the offender who was said to be over the age of eighty (80) years and sickly at the time.

[15]Although old age could be a factor to be considered in determining sentence, it should be applied sparingly in cases where a person is convicted of a serious offence such as the present one lest it is taken by senior citizens as an excuse of committing offences.

After all, old people are said to be endowed with much wisdom as to know what is right and what is wrong. The “Waswahili” said “Palipo Wazee, hapaharibiki jambo” which literally means where old or elder people are present, nothing goes wrong.

[16] But, in this case, it was the opposite. The old/elderly people such as the appellants were present at the scene but everything went wrong and ended up with the complainant being injured and the appellants being arraigned in court.

Nonetheless, this was a suitable case for a lenient sentence of a “hybrid” custodial nature. In that regard, the five (5) years imprisonment sentence imposed upon the first appellant is hereby set aside and substituted for a two (2) years imprisonment sentence suspended for an operation period of two (2) years as provided under S.15 of the Criminal Procedure Code.

[17] In sum, the appeal by the first appellant (Festus) is dismissed on conviction but allowed on sentence and the appeal by the second appellant (Abel) is allowed in its entirety. The second appellant shall forthwith be set at liberty to “fly freely like a blue bird in the sky” unless otherwise lawfully restrained. The first appellant shall forthwith be freed from custody to commence his two years suspended sentence and ensure that he does not get involved in any law breaching episode or act within the period and beyond.

Ordered accordingly.

J.R. KARANJAH

J U D G E

[Delivered & Dated this 3RD day of MARCH 2022]