https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10540

Hassan v Republic (Criminal Appeal E071 of 2025) [2026] KEHC 10540 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10540 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E071 of 2025 JN Njagi, J July 9, 2026 Between Hussein Abdalla Hassan Appellant and Republic Respondent (Appeal from original conviction and sentence by Hon.M.M.Wachira, Principal Magistrate, in Lamu Principal Magistrate’s Court Criminal Case No.E034 of 2023 delivered on 10/6/2024) Judgment 1.The Appellant was convicted of the offence of grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on the 4th July 2023 at Mbwanjumwali village, in Lamu East Sub- County within Lamu County he intentionally and unlawfully caused grievous harm to Zakaria Athman (herein referred to as the complainant). 2.The appellant was sentenced to serve 7 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. 3.The grounds of appeal are that:1.That the learned trial magistrate erred in law and facts in relying on the evidence of the prosecution witnesses which did not prove the case against the Appellant to the standard stipulated by the law.2.The learned trial magistrate erred in law and facts by failing to consider the Appellant`s strong defence.3.That the learned trial magistrate erred in law and facts in imposing a harsh and excessive sentence. Case for prosecution 4.The evidence of the complainant PW1 was that he and the Appellant were residents of Mbwanjumwali village. He was a boda boda rider. That on the material day at 8pm he was at Roma village at Kizingitini. That a lady called Sheha PW2 called him and asked him to pick her at Mbwanjumwali and take her to Roma. He went there on his motor cycle and picked her. They set off on the journey to Roma. On the way he stopped to make a phone call. That the Appellant passed him while riding a motor cycle in the company of his brother, Abdalla. The Appellant then turned his motor cycle and approached the complainant. He hit the complainant`s motor cycle his motor cycle. Th e Appellant told him he had stabbed him three times. He removed a knife while his brother removed a panga. The complainant abandoned his motor cycle and ran away. He entered into the house of a person called Aziza. The Appellant and his brother followed him into the house. The Appellant stabbed him on the left ribs and his brother cut him on the right shoulder, right hip and thigh. The occupants of the house in the meantime shouting for help. He was taken to Faza hospital and he was referred to Lamu county hospital. He was admitted for a week and was operated on. He went for further treatment at Kilifi county hospital and Mombasa Coast General Hospital. He reported the assault to the police. The Appellant was arrested and charged. The Appellant`s brother went into hiding. 5.Sheikh Salim Famau PW2 (Sheha) testified that she is a resident of Kizingitini village.. That on the material day she was visiting her in-laws at Mbwanjumwali. That she called at the complainant to go and pick her. He went and picked her on his motor cycle. That on the way she saw the Appellant and his brother Abdalla on a motor cycle. The complainant stopped his motor cycle and the Appellant passed them. The Appellant then turned his motor cycle and went to where the complainant was. The Appellant hit the complainant`s motor cycle with his motor cycle. The Appellant then told the complainant that he had stabbed him with a knife. The Appellant removed a knife and his brother fished out a panga. The Appellant on seeing that ran into a certain house and the two followed him there. The owner of the house started to shout “fire, fire”. Then the Appellant and his brother came out of the house and passed her at the place she was. There was street light at the place where she was. The two were still with their weapons. She then got onto another motor vehicle and went home. She said that she had by then known the Appellant not long time ago. 6.Ali Bashir PW3 testified that he was asked by the OCS to take the Appellant to the police station. He did so. 7.The in-charge at Faza sub county hospital PW4 testified that the complainant`s P3 form was filled by one Dr.Amina Salim who was working at their hospital but left the hospital for studies. That he had worked with her for one year and was conversant with her handwriting and signature. That according to the discharge summary from Lamu County Referral Hospital, the complainant was admitted at the said hospital on 5/7/2023 and discharged on 10/7/2023. That he had injuries on the right shoulder, penetrating abdominal injury, right back buttock injury and left knee and right thigh injuries. He was operated on the stomach and given blood transfusion. The doctor who examined him classified the degree of injury as grievous harm. 8.The case was investigated by PC Musyoka PW5 of Kizingitini police station. It was his evidence hat on 4/7/2023 at 9.15 pm he was asked by the OCS to head to Mbwanjumwali. He went there and found the complainant at Mbwanjumwali dispensary. He was injured and they took him to Faza sub county hospital and he was transferred to King Fahd hospital. He recorded statements of witnesses. He charged the Appellant with the offence. 9.During the hearing PW4 produced the P3 form, the discharge summary and the treatment notes as exhibits, P.Exh.1, 2 and 3 respectively. Defence case 10.When placed to his defence the Appellant stated that he was a resident of Mbwanjumwali. He was a donkey herder. That the complainant had stabbed him on the chest in April 2023 and he reported him to the police. The complainant then fixed him and wanted him to be jailed. That on the material day he was at his house. 11.The appeal was disposed of by way of written submissions. Submissions 12.The Appellant submitted that the offence was said to have been committed at night. That the complainant and PW2 gave conflicting evidence on the identity of the Appellant. That there were inconsistencies, discrepancies and contradictions in the evidence of the prosecution. That the trial court failed to consider these inconsistencies. That the prosecution evidence left gaps in the case. 13.The Respondent on the other hand submitted that the ingredients of the offence of grievous harm are proof that the victim sustained grievous harm, that the harm was unlawfully caused and that the accused caused or participated in causing it. The Respondent cited the case of John Oketch Abongo (2009) eKLR where the court expressed the view that it is for the court to find out from the evidence presented before it and guided by the definition in the Penal Code whether grievous harm is disclosed or not. 14.It was submitted that the complainant sustained injuries to his left ribs. That there was no lawful reason for the attack. 15.On whether the Appellant was identified, the Respondent cited the case of Cleophas Wamunga v Republic (1989) KLR where the Court of Appeal cautioned as follows:Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. 16.It was submitted that the Appellant and the complainant were known neighbours. That this was a case of recognition rather than identification of a stranger. That the evidence on recognition was reliable and believable. Analysis and determination 17.This is a first appeal and it behooves this court to exhaustively examine all the evidence tendered before the trial court, analyze it and arrive at its own conclusions but bear in mind that it neither saw nor heard the witnesses testify – see Okeno vs Republic (1972) EA 32. 18.The appellant was convicted of the offence of causing a person grievous harm. Section 234 of the Penal Code provides for the offence of grievous harm as follows:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life. 19.Section 4 of the Penal Code defines grievous harm in the following terms:“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.” 20.In the case of Pius Mutua Mbuvi vs Republic (2021) eKLR, the court dealt with what amounts to grievous harm and held as follows;“The specifics of grievous harm therefore are; 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, secondly, a mental injury may amount to grievous harm but not to bodily harm and lastly, the injury must be ‘of such nature as to cause or likely to cause permanent injury to health.” 21.In John Oketch Abongo v Republic (supra), the Court of Appeal held that it is for the court to form an opinion from the evidence presented before it on whether or not the particular injuries amount to grievous harm. The Court that stated that:“Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.….We are satisfied that the complainant's injury amounted to grievous harm as defined in the Penal Code. The definition contains several ingredients of what constitutes grievous harm. We are of the opinion that the presence of any one of these ingredients would suffice to disclose grievous harm. Here, we are satisfied that the complainant's injury did amount to dangerous or serious injury to health both of which are ingredients contained in the definition." 22.The doctor who examined the complainant in this case found him with a penetrating abdominal injury that necessitated him being operated on. PW4 testified that the injuries were life threatening. In view of the penetrating abdominal injury, I find that the injury occasioned on the complainant was life threatening and was likely to injure his health. I find that the injuries amounted to grievous harm. There was no lawful reason for the vicious and unprovoked attack. 23.The Appellant challenges his conviction on the ground that he was not identified as the person who assaulted the complainant. The Respondent submitted that the Appellant was positively identified as the assailant as he and his brother were known to the complainant. That the evidence was more reliable being that of recognition and not identification of a stranger. 24.The trial court in convicting the Appellant of the offence stated that the Appellant and the complainant were known to each other. That the Appellant complained that the complainant had stabbed him in April 2023 and Sheikh PW2 heard the Appellant telling the complainant that he had stabbed him. The court cited the case of Wamunga v Republic (1989) KLR 426 where the court held that before the court can convict on evidence of identification it must be satisfied that such evidence is free from the possibility of error. The court found that the Appellant was one of the people who assaulted the complainant. That he was revenging after the complainant had injured him. 25.The complainant herein was attacked at night and injured. The question was whether the Appellant was the person who attacked and injured the complainant. 26.It is trite that the court before basing a conviction on evidence of identification should examine the evidence carefully and satisfy itself that the circumstances of identification were favourable and free from the possibility of error. This position was re-stated by the Court of Appeal in the case of Kariuki Njiru and 7 others v. Republic CR. Appeal No. 6 of 2001 that;The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.See also Wamunga v Republic [supra]. 27.The Court of Appeal in the case of Maitanyi v Republic (1986) eKLR held the following on such identification:“….. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and its position relative to the suspect." 28.The court has also to bear in mind that even where identification is by recognition at night, the evidence must be absolutely watertight to justify a conviction, see Nzaro v. Republic (1991) KAR 212. 29.I have keenly examined the evidence on identification on the Appellant. The complainant said that the Appellant talked to him before he attacked him whereby he accused him of having stabbed him three times. He then produced a knife while his brother fished out a panga. He, the complainant, ran away and entered into the house of Aziza. That the two followed him into the house and attacked him with the panga and the knife. That there was light inside the house and he identified them. 30.The evidence that the Appellant accused the complainant of having stabbed him with a knife was corroborated by Sheikh (Sheha) PW2. PW2 saw the Appellant producing a knife and his brother producing a panga. When the complainant ran into a house the Appellant and his brother followed him there. She heard the owner of the house shouting. The Appellant and his brother then came out of the house and passed her at the place where she was. She said that there was street light at the place and she identified them. 31.There is no doubt from the evidence of the complainant and Sheha PW2 that the Appellant was one of the people who attacked and injured the complainant. There was no doubt that the Appellant hit his motor cycle into the motor cycle of the complainant after which the Appellant accused the complainant of having stabbed him. The people were therefore close to the complainant and PW2 when the Appellant accused the complainant of stabbing him. It is clear from the evidence of PW2 that there was street light at the place and the complainant and PW2 clearly saw the Appellant and identified him. It is also clear from the evidence of the complainant that there was light in the house of Aziza when the Appellant attacked him. PW2 managed to see and identify the Appellant both before and after the incident. Both the complainant and PW2 knew the Appellant before that day. There was no possibility of mistaken identity in the case. The complainant and PW2 were telling the truth. I find that the Appellant was positively identified as one of the perpetrators of the offence. 32.The Appellant faulted the trial court for not considering his defence. He said that he was at his house at the time he was accused of assaulting the complainant. The trial court dismissed the defence on the ground that he did not avail any witness to prove so. 33.I have re-evalluated the defence offered by the Appellant against the evidence adduced by the prosecution. The defence was a mere denial. The evidence adduced against the Appellant by the prosecution witnesses was overwhelming. The trial court rightly dismissed the Appellant`s defence. The conviction is thereby upheld. 34.Section 234 of the Penal Code provides for a sentence of life imprisonment for the offence of grievous harm. The Appellant was sentenced to serve 7 years imprisonment. Considering the multiple cuts that the Appellant occasioned the complainant and putting into mind that the injuries were life threatening, I find the sentence to be neither harsh nor excessive. 35.The upshot is that I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 9TH DAY OF JULY 2026J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RepublicAppellant – present virtually at GK Prison MalindiCourt Assistant – FarhanHCCRA NO. E071 of 2025 Judgment 3 | Page