[2010] KEHC 3978 (KLR)
The court found that although the appellant was charged with grievous harm, the medical evidence (P3 form) classified the injuries as 'harm' rather than 'grievous harm.' Therefore, the conviction for grievous harm was not supported by the evidence. The court substituted the conviction with the lesser offence of...
Source-derived case information.
- Citation
- [2010] KEHC 3978 (KLR)
- Parties
- Appellant: Josephat Ekeno Lopua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 21 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction for grievous harm quashed; conviction for assault causing actual bodily harm substituted; sentence reduced to three years imprisonment.
- Legal Topics
- Grievous Harm, Assault Causing Actual Bodily Harm, Sentencing Principles, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Ekeno Lopua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for grievous harm was proper given the medical evidence classified the injuries as harm.
- 2 Whether the sentence imposed was appropriate in the circumstances.
Ratio Decidendi
The court found that although the appellant was charged with grievous harm, the medical evidence (P3 form) classified the injuries as 'harm' rather than 'grievous harm.' Therefore, the conviction for grievous harm was not supported by the evidence. The court substituted the conviction with the lesser offence of assault causing actual bodily harm under Section 251 of the Penal Code. Considering the appellant was a first offender and the circumstances of the offence, the court held that the maximum sentence was not warranted. However, due to the seriousness of the act (stabbing his wife with a knife), the appellant deserved a custodial sentence. The court reduced the sentence from five...
Court Disposition
Conviction for grievous harm quashed; conviction for assault causing actual bodily harm substituted; sentence reduced to three years imprisonment.
Orders
- The conviction for grievous harm is quashed.
- A conviction for assault causing actual bodily harm under Section 251 of the Penal Code is substituted.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 21 of 2008
JOSEPHAT EKENO LOPUA…….………….….APPELLANT
VERSUS
REPUBLIC………….…………………………..RESPONDENT
JUDGMENT
JOSEPHAT EKENO LOPUA,the appellant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code. The charge against him was that on 13th February 2008 at Kelelwa Village in Nakuru District within Rift Valley Province he unlawfully deed grievous harm to Consepta Kemuma. He pleaded guilty to the charge and upon conviction he was sentenced to 5 years imprisonment. He has appealed against the sentence. Mr. Gumo for the state left the issue of sentence to me.
In his submissions before me, the appellant simply pleaded for lenience claiming that he has in prison, reformed and learnt the art of welding.
Thought he appellant was charged with grievous harm the record shows that the P3 completed in respect of the complainant classified the injuries she suffered as harm. The appellant should therefore have been convicted on the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code which offence carries a maximum sentence of 5 years and not grievous harm carries a sentence of upto life imprisonment. In the circumstances I quash the Appellant’s conviction for grievous harm and substitute therefore a conviction for the offence of assault causing actually bodily harm contrary to Section 251 of the Penal Code.
The appellant being a first offender there is nothing on record to show that he deserved the maximum sentence if he had been onvicted of the former offence. The appellant stabbed the complainant who is his wife with a knife and could easily have killed her. Although I am satisfied that had the court convicted him of the lesser offence of assault it could not have given him the maximum sentence, the appellant deserves to be appropriately punished. In the circumstances I reduce the appellant’s imprisonment term to three years imprisonment.
DATED and delivered this 27th day of January, 2010.
D. K. MARAGA
JUDGE.