[2023] KEHC 25325 (KLR)

JIN & another v Republic (Criminal Appeal E056 of 2022) [2023] KEHC 25325 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25325 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E056 of 2022

LM Njuguna, J

November 8, 2023

Between

JIN

1st Appellant

BWN

2nd Appellant

and

Republic

Respondent

(Appeal arising from the decision of Hon. J. Ndengeri SRM in the Chief Magistrate’s Court at Embu Criminal Case No. E1083 of 2021 as consolidated with E1220/2021 delivered on 30th November 2021)

Judgment

1. The appellants have filed a petition of appeal seeking orders that the appeal be allowed, conviction and sentence be set aside, a retrial be ordered, sentence be reduced or the appellants be set at liberty. The amended grounds of appeal are that the trial magistrate erred in law and fact by:a.Knowingly failing to examine the P3 form in respect to the nature of the injuries and that the appellants are first offenders;b.Failing to consider that the evidence tendered by the prosecution did not relate to grievous harm; andc.The crime was under Section 136 of theCriminal Procedure Code hence a concurrent sentence.

2. The appellants were charged with the offence of causing grievous harm contrary to Section 234 of thePenal Code. The particulars of the charge are that on 02nd July 2021 at around 9. 00a.m. at [Particulars Witheld]within Embu County, the appellants jointly and unlawfully caused grievous harm to BM. The 2nd appellant faced a second count of child neglect contrary to Section 127(1) and (2) of the Children Act and particulars were that on 02nd July 2021 at around 9. 00a.m. at [Particulars Witheld]within Embu County, the 2nd appellant being the step mother of BM (minor) neglected him by failing to provide him with medical care.

3. The appellants pleaded not guilty to the charges and the case proceeded for full trial. The prosecution called 6 witnesses in support of its case.

4. PW1 was the victim who was a minor. The court conducted voire dire and took sworn testimony. He stated that on the day of the incident, he had returned home from visiting his grandmother when the 1st appellant tied him to a chair with ropes and started beating him with a dog-chain all over his body. That the 2nd appellant joined in the beating using ropes. That the appellants then poured water on PW1’s bed and he had to sleep on the edge of the bed while still tied up until morning. He narrated that his two younger siblings untied him the next morning and they were also beaten for doing so. That he couldn’t eat as his teeth were shaking and he was only given tea. That they notified two of their uncles who came and rescued PW1. He identified the appellants as his father and mother respectively. On cross-examination, he stated that he was not given medicine, just tea without any snacks.

5. PW2 stated that his son, who was well acquainted with PW1 was concerned of the whereabouts of PW1. That he rallied PW1’s cousins to look for him and they found him in his bed unwell and pus oozing out of the ear. That when he called the 1st appellant to explain what had happened, he could not do so. That he later learned that the appellants were angry that PW1 had gone to visit his grandmother. That PW1 was taken to Embu Level 5 Hospital and was admitted for one week.

6. PW3 who is a brother to the 1st appellant stated that on the material day, he heard PW1 crying but he thought it was the usual disciplining process by parents. That a day later, PW2 told him that PW1 had been locked up in his parents’ house after being beaten. That PW1’s brother had taken long to return when they asked him to call PW1. That they sent PW1’s brother to check on PW1 and when he took long, PW2 decided to enter the house and returned carrying PW1 who looked unwell and was in a very bad state. That his legs and head were swollen and pus was coming out of his ear, and a finger nail seemed to have been plucked out. That PW1 was taken to hospital for treatment and the matter was reported to the police station.

7. PW4, a police officer at Gatunduri Police Post was on duty when the incident was reported. That he arrested the appellants and informed them of their rights before sending them to Kivue for investigations.

8. PW5 was a police officer from Kivue Police Station who stated that J and W went with a child BM and reported that he was assaulted by his parents and that pus was oozing from his ears, he had swollen limbs and eyes. He wrote them a report and sent them to hospital. He also issued them with a P3. That he visited the scene and recovered a chain and a rope. That the child told him that his father left for work on 2/3/2021 and was upset that PW1 had left home to see his grandmother. That the accused tied him up and beat him. He then took 20 litres of jerrican and poured water in the bed. He further told the court that during his investigations, the 2nd appellant told him that she found PW1 and the 1st appellant fighting because PW1 had failed to go to school.

9. PW6 was a clinical officer at Embu Level 5 Hospital who attended to PW1. He described the injuries sustained by PW1 which were pus oozing out of the eyes and ears, sores and wounds at different stages of healing, painful swelling, lacerations and abrasions throughout the body and a missing toe nail. He concluded that the injuries were as a result of blunt force trauma.

10. When he was put on his defence, the 1st appellant gave unsworn evidence stating that he is remorseful and would like to take care of his son, seeing as the boy is emaciated and the mother cannot afford to care for him. He blamed the ordeal on alcohol to which he had overindulged. DW2, the 2nd appellant stated that she is worried about her children whom since her arrest, have been left unattended with no-one to fend for them.

11. The trial court found the appellants guilty and sentenced them to 20 years imprisonment each.

12. The appeal was canvassed by way of written submissions and both the appellants and the respondents complied.

13. In their written submissions, the appellants stated that PW6 did not specify which part of the skin of PW1 was grievously harmed and that the finding of the court was discriminatory. That PW1’s body is fully functional and not grievously harmed and that conviction for this crime is not established firmly based on the evidence adduced. It was their argument that the sentence meted out to them was too harsh as the alleged grievous harm was merely the usual discipline for the child because he refused to go to school. The disciplining was the appellant’s way of ensuring that PW1 does not end up like his parents who did not get a good education. That the sentence is excessive and will eventually be counterproductive to PW1 as he will have no one to take care of him.

14. The respondent, in its submissions, relied on the definition of grievous harm as provided under section 4 of the Penal Code and the case of Pius Mutua Mbuvi Vs. Republic(2021) eKLR. It stated that the kind of harm occasioned on PW1 was grievous and punishable under section 234 of the Penal Code. That the prosecution discharged its burden to prove that the assault led to grievous harm for no justifiable cause or excuse. That the evidence proved that the appellants participated in causing such grievous harm as they were properly identified. That in mitigation, the 1st appellant told the trial court that during the time when he has been incarcerated, he has learned anger management. The 2nd appellant stated that she had been forced into participating in beating up PW1. That the trial court noted that the appellants did not show remorse for their actions. It urged the court to uphold the findings of the trial court on both conviction and sentence as the appellants have failed to demonstrate that the sentence was indeed excessive.

15. The issues for determination herein are as follows:a.Whether the offence was proved beyond reasonable doubt; andb.Whether or not the sentence meted on the appellants is excessive.

16. In determining the first issue, the appellants were charged under Section 234 of thePenal Codewhich provides:“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

17. According to Section 4 of thePenal Code, “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.” (emphasis mine)

18. PW6 who examined the victim at the hospital concluded that the injuries were caused by blunt objects and in his opinion, the assault resulted in grievous harm. He described in great detail, the injuries sustained by the victim, which included the actual size of the wounds, abrasions and lesions, the lacerations and swelling in both legs, among others. In the P3 form, the clinician categorically noted that the injuries sustained amounted to grievous harm. The P3 clearly defines the meaning of grievous harm as opposed to harm and in PW6’s professional opinion, the injuries caused grievous harm. The report was authored by him in his capacity as a medical expert.

19. Seeing how detailed the P3 is, I would understand the expressions of the trial magistrate as to how grievous the harm was. Regardless of the provocation, PW1 was fastened to a chair with ropes and beaten with a dog-chain and other ropes. The appellants then poured water onto the bed of PW1 and he was forced to lie on it until the next morning while still bound with ropes. PW2 and PW3 stated that the minor had not been seen for a few days when the concern of his whereabouts arose, culminating in his rescue from the house of the appellants, who are his parents. Grueling as these facts sound, it is my duty to tie my determination tightly in the confines of law and not on emotion.

20. To begin with, I must state that Article 53(2) of the Constitution provides as follows:A child’s best interests are of paramount importance in every matter concerning the child.This provision constrains the court to elevate the best interest of the child in this case.

21. PW2 and PW3 stated that they rushed the minor to hospital and then reported the matter to the police. In my view, the best interests of the child are protected as far as the testimonies of PW4, PW5 and PW6 are concerned. In a nutshell, their testimonies show the court that the child was rescued and the offenders brought to book. If the child would not have been rescued when PW2 did, the child would probably have succumbed to the injuries, considering that the appellants, who were charged by the law to take responsibility of the minor, chose to abandon him for days after inflicting injuries to him. Additionally, the prosecution’s case offered sufficient proof that grievous harm was caused to the child. The appellants submitted that PW6 did not describe the subcutaneous injuries sustained by PW1. To me, the definition of grievous harm was satisfied because it includes any permanent or serious injury to any external or internal organ, membrane or sense and PW6 established the same.

22. On the issue of whether the sentence meted out to the appellants was excessive, under Section 234 of the Penal Code, a person found guilty faces life imprisonment. The trial magistrate sentenced the appellants to 20 years imprisonment each. In my view, the trial magistrate exercised her discretion and reduced the sentence from the mandatory minimum prescribed in the Penal code. The appellants were tried jointly and sentenced separately once convicted, therefore, the provisions of section 136 of the Criminal Procedure Codewere therefore, properly applied.

23. I have noted that the trial court did not make a determination on the second count which the 2nd appellant was charged with. From the evidence presented before the court, it is my view that the offence was not sufficiently proved to warrant a conviction.

24. In the premises, I do not find a reason to disturb the findings of the trial court on both conviction and sentence.

25. The appeal is hereby dismissed.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 8TH DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE……………………………………………………………………for the Appellants…………………………………………………………………for the Respondent