[1999] KEHC 48 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Criminal Appeal 94 of 1998

JOSEPH LUMUMBA ........................................................................... APPELLANT

VERSUS

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

(From Original conviction and sentence in criminal in case No.4319of 1996 of the Chief Magistrate's court at Mombasa).

JUDGEMENT

Appellant was convicted on 24. 4.98 by Miss J. Siganga - SRM ofthe offence of causing grievous harm contrary to S.234 of thePenal Code and sentenced to some 2 years imprisonment and to suffer4 strokes of the cane. 3 prosecutions witnesses gave evidence forthe prosecution.

PW 1 the complainants said that on the 9. 6.96 or about 8 pm. while approaching his residence farm wall, he was stopped by 3 men by one of whom asked him where he came from and then they asked himabout what he had said the previous night, he responded that he had toldthe lady not to close the door as his child was out. He recognisedthe man questing him as JOSEPH LUMUMBA his neighbour. The accusedhit him with a hammer and he fell down but they continued hitting him. When he screamed, neighbours came out but the attackers fled.He was taken to a clinic for treatment then he reported at theChangamwe Police Station where he was given a P 3 form. His collar bone was fractured. It would appear that the appellant disappearedand was only arrested on 13. 12. 96.

He could identify the accused appellant because from a nearby open window was a chimney lamp light which lit up the scene andmade him see accused's face.

PW 2 Charles Ouma Makonde reiterated when PW 1 said in_ someparticulars and said that he had just talked with the PW 1 at about8 p.m. as he walked to his block which was neighbouring theirs. Heheard commotion and with another neighbour near went to the scene. Hesaw as he flashed his torch 2 people run away but a third enteredinto PW l's adjacent block. PW 2 and his companion followed theone who entered the building adjacent and found appellant standing by his door with a hammer in his hands. He threatened them. PW 2 flashed his torch and recognised the appellant. He knew him as he was a neighbour he had seen him for 9 months before. They then took PW 1 to the Hospital. PW 3 P.C. Samuel Okoth recorded the report in 9. 6.96 at 8 p.m. of the incident and gave PW 1 P3 form to take to a Doctor. He said the appellant went underground and was not traced until December, 1996.

The appellant gave sworn statement saying that the complainanthad abused his wife the previous night but because it was late onthat day he left the matter for the next day so when they met the next day near the gate to their house at about 7 p.m. thecomplainant abused him, grabbed him and fell him down he in turnpushed the complainant who fell down, neighbours came and separated them.He denied hitting PW 1 or that he was in company of any otherperson.

DW 2 Janet Atieno said that complainant PW 1 abusedappellant's wife on 9. 6.96 when the wife of appellant unknowingly locked out the son of the appellant but her story corroborated thatof appellant that the next day appellant met PW 1 at the door andstruggled with him . They fought and the appellant hit thecomplainant. They were separated but then later PW 1 went toappellants house and challenged him to a fight to death but a Mr.Charles Otieno separated them.

DW 3 the wife confirmed that complainant abused her and shetold her husband who next day told her PW 1 beat him and he decided to return to the house

The Learned Magistrate accepted the prosecution evidence andrejected the denials of the defence witness. She found that theappellant hit the complainant and caused him such injuries as aresult of a fight both had entered into. She found that theappellant had wanted to subdue PW1 for used excessive force.

The appeal against the same was argued by Mrs. Amadi for theappellant who argued the appeal for the 6 grounds on 3 clusters.First she said the P3 Form was irregularly produced by a policewitness instead of the doctor who filled it and she relied on theCourt of Appeal decision in the case of RAJAB ABDALLA in R v Cr. Appeal No. 86 of 1997.

Secondly, that the evidence of PW 1 and PW 2 did notcorroborate each other and the Learned Senior Resident Magistrateerred in believing it as there was material contradiction.

She also said that evidence shows that there was a scuffle andso they should have both been charged with a felony but Mr. Ng'eno,State Counsel supported the conviction and said that theprosecution tried to bring the doctor who executed P3 form but tono avail as he was not there and could not be found.

There is no doubt that the evidence established that bothappellant and the complainant took part in a fight. It is also notin dispute that the fight was physical and the complainant was pushed and fell down and hurt himself thereby. Grievous harm is described in S 4 of the (Penal Code as:- “any harm which amounts to a maim or dangerous harm,or seriously or permanently injureshealth, or which islikely to injure healthor which extends topermanent disfigurementor to any permanent orserious injury to anyexternal or internalorgan membrane or sense". Then the offence created under S.234 says any person who unlawfully does grievous harm to another is guilty of a felony.

For this proof of grievous harm, medical evidence is essential and much more so because offences under S.237 and thus under Chapter 24 particularly common assaults and assault causing actual bodily harm in Sections 250, 251 require medical diagnosis toidentify.

The doctor did not produce the P3 form. The LearnedMagistrate accepted the evidence. Normally the law is that suchadmission would be wrongful according to that judgement and suchwrongful admission had in fact deprived the accused of a reasonablechance of acquittal in such a case. It has occasioned injusticebut the question is whether in law it is a wrongful admission ofevidence. When one relies on: S.77 of the evidence Act whichclearly says that:-

"In criminal proceedings anydocument purporting to be a reportunder the hand of Government AnalystMedical Practitioner or anyballistic expert document executeror any Geologist upon any person,matter or thing submitted to him forexamination may be used inevidence."

I believe the Senior Resident Magistrate could use P3 formsubmitted as having been signed by a doctor.

Secondly, the Doctor was summoned but could not be found suchthat the P3 form was admissible under S.33 of the Evidence Act.

It is my view that notwithstanding the decision of Abdala case I do not think the admission of the evidence was against that decision.

It is therefore quite clear that the evidence of grievous harm was then proved

But Mrs. Amadi has argued that the two persons engaged in afray. It is provided under S.92 of the Penal Code that:

It is a fray where a person takes part in a fight in a” public place".

"Public place" os described under S.4 of the Penal Code as including:-

"any public way and any buildingplace or conveyance to which for thetime being the public are entitledor permitted to have access eitherwithout any condition or uponcondition of making any payment ..... "

Here there is evidence that no fight took place in open area in front of the building. It is no doubt to me that was a public place. The question to ask is who hit the complainant on the soldier.

There is no direct evidence other than that of the complainantwho said accused hit him with a hammer, but this evidence wascorroborated by the presence of the appellant with use of theappellant at his door clutching on a hammer and on the Doctorsfinding that the instrument used is a blunt instrument.

I think there was evidence to support the conviction and Iaccept the findings of the SRM. I dismiss appeal against conviction.

As for sentence, the Penal Code provides a life sentence, butthe Learned SRM did not give an option of a fine. I think sheshould have. Both the appellant and the complainant actuallyengaged in a fight and this is a case which was almost in theborder-line between the offence charged and affray . Contrary toSection 92. I have looked at the motive of the quarrel, thedomestic nature of the matter, the mitigation of the accused, Ithink without altering the period of sentence I would give an option of a fine in the amount of Ksh.15000/= and in default, theperiod of 2 years imposed be served by accused.

Delivered this 19th day of february 1999.

A.I HAYANGA

JUDGE