[2004] KEHC 1199 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NO. 221 OF 2001

(Appeal from original conviction and sentence in Criminal Case No. 502 of 2001 of the Senior Principal Magistrate Naivasha – B. F. Odhiambo - SRM)

HENRY NYOTA KARANJA……………….…….APPELLANT

VERSUS

REPUBLIC………………………...…………….RESPONDENT

JUDGMENT

The Appellant, Henry Nyota Karanja was charged with the offence of grievous harm contrary toSection 234 of the Penal Code.The particulars of the charge were that on the 25th of January 2001 at Muruaki Primary School in Nyandarua District, the Appellant unlawfully did grievous harm to Wilfred Gichia Nganga. When the Appellant was arraigned before the trial Magistrate’s Court, he pleaded not guilty to the charge. After the full trial, the Appellant was convicted as charged. He was sentenced to pay a fine of Kshs 80,000/= or in default he was to serve two years imprisonment. The Appellant was aggrieved by the conviction and sentence. He has appealed to this Court against the said conviction and sentence. In his Petition of Appeal, the Appellant raised several grounds of Appeal faulting the decision of the trial magistrate in convicting him. The said grounds of Appeal may be summarised as thus; that the trial magistrate erred in convicting the Appellant on contradictory and inconsistent evidence; that the trial magistrate shifted the burden of proof to the Appellant by placing undue weight upon the Appellant to establish his innocence; that the trial magistrate applied the wrong principles of the law in arriving at the said decision convicting the Appellant and finally that the trial magistrate erred in imposing an oppressive, harsh and manifestly excessive sentence.

At the hearing of the Appeal, Mr Ndegwa Learned Counsel for the Appellant submitted eloquently urging this Court to allow the Appeal, quash the conviction and set aside the sentence. Mr Mutuku, the Principal State Counsel on the other hand supported the conviction and the sentence imposed by the trial magistrate. He urged the Court to disallow the Appeal and confirm the conviction and sentence. I will address the arguments advanced by the opposing counsels later in this judgment after briefly setting out the facts of this case.

PW 1 Wilfred Gichia (hereinafter ref erred to as PW 1 ), then aged thirteen years testified that he was a standard six pupil at Muruaki Primary School. It was his testimony that on the 24th of December 2001 (PW 1 obviously meant the 24 th of January 2001) he attended school as usual. The Appellant who was his maths teacher gave them a test. He then marked the pupils papers after which the Appellant started canning the pupils who had failed to answer some of the questions correctly. PW 1 was among the pupils who were canned. He testified that his legs were injured and became sore and swollen as a result of the beating.The following day, that is, the 25th of January 2001 the Appellant again canned the pupils who had failed to answer all the questions correctly. PW 1 testified that when the Appellant reached him, he (PW 1) requested that the Appellant canes him on the hands instead of the legs which at the time he claims were sore and hurting. PW 1 testified that the Appellant was not amused by his request. The Appellant then violently pushed him towards a table which hurt his testicles. The Appellant then continued caning PW 1 on the buttocks.When PW 1 sat down he started feeling pain on his penis and testicles.

When PW 1 went home, he was ashamed to tell his mother the injuries that he had sustained, but later in the night due to pain he told his mother what had happened.He was taken to hospital where a diagnosis was made that the injured testis had to be removed surgically. PW 1 was admitted in hospital for ten days. PW 1 admitted in his evidence that he was injured when the Appellant pushed him towards the table and was consequently injured by the corner of the table. PW 1 further admitted that the Appellant did not hit him on his private parts. He admitted that he had lied to his mother about the injuries that he had sustained but later told the truth. PW 2 Wilson Githuku, a thirteen year old testified that he was a classmate to PW 1. It was his testimony that on the material day the students who had failed the maths test given by the Appellant were beaten.

PW 2 was not among the pupils who were beaten. He testified that he saw the Appellant assault the Complainant, PW 1. It was his testimony that the Appellant caned the Complainant and later pushed the Complainant towards a table whose edge hit the Complainant. PW 2 testified that he did not know where the Complainant was injured. PW 2 further testified that PW 1 apparently incensed the Appellant when he resisted being punished.

PW 3 Monica Muthoni Gichia, the mother of the Complainant testified how she was informed by the Complainant, on the 24th of January 2001, that he had been caned by his teacher. PW 1’s left leg was injured.

The following day the Complainant arrived home and showed his mother his swollen testis. PW 3 took the Complainant to the hospital where an operation was done to remove the injured testis. It was PW 3’s testimony that when she informed the Appellant about the incident, the Appellant offered to foot the medical bill. PW 3 admitted that the Complainant had at first lied to him concerning the ailment that he was suffering from. PW 3 denied that she had demanded money from the Appellant.

PW 4 Police Constable Antony Sunguti investigated the case, arrested and charged the Appellant. PW 5 John Ribero Muchai, a clinical officer in charge of Engineer sub-district hospital produced a P3 form which indicated that the Complainant had been operated and one of his testis removed after it was found to be necrotic. PW 5 assessed the degree of injury sustained by the Complainant to be grievous harm.

When the Appellant was put on his defence, he admitted that he “disciplined” the Complainant with other pupils. The Appellant testified that he beat up the pupils twice on the legs. He denied that he hit or pushed the Complainant to the table. The Appellant testified that at the time he was “disciplining”the pupils he was using a small cane. The Appellant testified that he did not know how the Complainant was injured. It was his testimony that the Complainant could have been injured elsewhere. The Appellant called two witnesses who testified on his behalf. They were Ben Wangaruiya, a twelve year old and Lucy Njeri another twelve year old.Both the Defence witnesses were classmates of the Complainant. Both Defence witnesses testified that they were beaten on their legs by the Appellant on the material day. Both the said witnesses testified that they did not see the Complainant being assaulted on his private parts nor did they see the Complainant being pushed against the table. This is a first Appeal.

This Court is mandated in law to look at the evidence adduced before the trial magistrate, re-evaluate and reassess it and reach its own independent conclusion whether or not to uphold the conviction. InThomas Mwaluma Mwimwa –versus- Republic C.A. Cr. App. No. 264 of 2003 (Mombasa) (unreported) the Court of Appeal held at page 4:

“It has been stated from time to time that it is the duty of the first Appellate Court to remember that an accused is en titled to demand of the Court of the first Appeal a decision both on questions of fact or law and the Court is required to weigh conflicting evidence and draw its own inferences and conclusions, but bearing in mind always that it has neither seen nor heard the witnesses and make due allowance for this – See Okeno –versus - R [1972] EA 32 at pg 34. ”

This Court is further mandated to consider the grounds of Appeal put forward by the Appellant before arriving at its considered decision.

In the instant Appeal, the Complainant then aged thirteen years testified that he was assaulted by the Appellant for two consecutive days, that is on the 24th and the 25th of January 2001. From the evidence adduced before the trial Court by the Complainant PW 1, PW 2, DW 2 and DW 3 it appears that the Appellants modus operandi in teaching mathematics was to give the pupils a maths test, mark it and then cane the pupils according to the sums that they had failed. Evidence was adduced by the said witnesses, which evidence corroborated each other, that the Appellant for two consecutive days caned the pupils who had failed in the maths test that he had set.PW 1 testified that on the first day he was caned by the Appellant and injured on his legs. He went home and informed his mother. On the following day the Complainant requested the Appellant not to cane him on the legs as he had been injured. This simple request by the Complainant seem to have infuriated the Appellant. According to PW 2, a fellow pupil, the Appellant pushed the Complainant on to a table which injured the Complainant on his private parts. The Appellant then continued caning the Complainant on his buttocks.

PW 2 further testified that what seem to have incensed the Appellant was the fact that the Complainant was taken to be resisting being caned by the Appellant. In his Defence the Appellant admitted that he canned the Complainant together with other pupils. He denied that he pushed the Complainant onto the table and thus causing him the injuries that he sustained on his private parts. PW 1, after being assaulted was admitted in hospital for a period of ten days. He was operated upon and one of his testis removed. The said testis had become necrotic. PW 3 the mother of the Complainant testified that when the Appellant was informed of the injury sustained by the Complainant he offered to foot the medical bill.

On re-evaluation of the evidence adduced by prosecution, it is clear that the Appellant set upon a course of action whose ultimate result was the injury which was sustained by the Complainant. The Appellant’s method of teaching maths, from the evidence adduced, was sadistic. The Appellant appeared to get joy in inflicting pain on his pupils. His assessment of his pupils was by “disciplini ng” them. From the evidence of PW 1, PW 2, DW 2 and DW 3 the Appellant appears to have formed a habit of assaulting the pupils whenever he found that they had failed the maths test that he had set. In the case of PW 1, he was injured on his legs on the 24th of January 2001 when he was canned by the Appellant. In his defence the Appellant testified that he only canned each pupil twice.The evidence of PW 1 and PW 2 however contradicts the Appellant’s evidence in his defence.

The Appellant went into a frenzy on the 25th of January 2001 when he thought that the Complainant was resisting being “disciplined”.He violently pushed the Complainant onto the table as a result of which the edge of the table injured the private parts of the Complainant. The Appellant and his witnesses deny that the Appellant hit the Complainant on his private parts. It is the finding of this Court that the Complainant was injured when he was violently pushed to the table by the Appellant. The Appellant after pushing the Complainant continued administering corporal punishment on him. On re-evaluation of the evidence, I do find that the Appellant caused the injury to the Complainant.The charge of grievous harm was proved by the Prosecution beyond any reasonable doubt. The injury which the Appellant inflicted upon the Complainant is such that the Complainant lost an important symbol of his manhood. The injury sustain may even cause the Complainant to be unable in future to father children.

The trial magistrate was correct in disregarding the Appellant’s defence. If in moulding the youth of this nation, the Appellant thought that he had the “carte blanche” to indiscriminately administer corporal punishment including assaulting his pupils, then the Appellant was mistaken. In his submission before this Court, the Appellant stated that the evidence of PW 1 and PW 2 ought not to have been admitted in evidence as no proper voire dire was conducted by the trial magistrate before the said witnesses were sworn.The Appellant referred this Court to the decisions of Ocharo –versus- Republic C. A. Cr. Appeal No. 92 of 2003 (Mombasa) (unreported) andMichael Mureithi Kinyua –versus- Republic C. A. Cr. Appeal No. 38 of 2002 (Nyeri)(unreported). I have read the two decisions of the Court of Appeal. I have also read the record of the trial magistrate’s court. Although the trial magistrate did not conduct voire dire strictly as provided by the law, in my view, there was no doubt in the mind of the trial magistrate that the said witnesses were intelligent enough to give evidence on oath. From reading the evidence that was adduced by PW 1 and PW 2, it is clear that they gave lucid and intelligent answers to the questions asked both on examination in chief and on cross-examination.The Appellant was not prejudiced in any manner whatsoever as he also called two witnesses of a similar age to the two prosecution witnesses. The said witnesses were similarly examined on voire dire by the trial magistrate who made a determination that the said witnesses could give sworn testimony.

The Appellant submitted that by the trial Court sentencing him, he was subjected to double jeopardy as he had also been terminated from his position of employment as a teacher. While it may appear to the Appellant that he has been punished twice from the same incident, the trial court and this court is not concerned wit the Appellant’s relationship with his employer. What this court is concerned with is the establishment of guilt or innocence of the Appellant for the offence which he was charged. In the instant case he is found guilty as charged.

For the aforegoing reasons, the Appeal filed by the Appellant lacks merit. The same is dismissed. The conviction and the sentence imposed by the trial magistrate (which was lenient in my view ) is hereby confirmed. It is so ordered.

DATED at NAKURU this 19th day of November 2004.

L. KIMARU

AG. JUDGE