https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7983

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. E032 OF 2025 BONIFACE NDIKA OMUKOSHI ….……...……………............ APPELLANT - VERSUS - REPUBLIC ……………….…………………………………….. RESPONDENT (Being an appeal from the conviction and sentence of Hon. P. K. Rugut, PM delivered on the 19/4/2023 in Tamu MCCR Case No. 023 of 2023, R. vs Philip Boniface Ndika Omukoshi) J U D G M E N T 1. On 16/1/2023, BONIFAVE NDIKA OMUKOSHI was arraigned before the Tamu Principal Magistrate’s Court with the offence of Grievous Harm contrary to section 2354 of the Penal Code. 2. It was alleged that on 23/11/2021 at Omonyole village, Koru Location, in Muhoroni Sub-County within Kisumu County, the appellant unlawfully did grievous harm to Rose Atieno Otieno by amputating the right hand, cutting the left hand and cutting the right leg below the knee. 3. He denied the charge and a trial ensued. The prosecution paraded 4 witnesses and the appellant gave sworn testimony. The Court found him guilty convicted him of the charge and sentenced him to life imprisonment. Page 1 of 10 4. Aggrieved by the conviction and sentence, the appellant lodged an appeal in this Court through his Petition of appeal dated 3/3/2025 raising three grounds. The grounds were that; the trial court erred in convicting him on contradictory evidence, it erred in failing to find that the prosecution had not proved its case to the required standard and that the sentence was harsh and excessive. 5. This being a first appeal, this Court is enjoined to re-appraise the evidence afresh with a view of arriving at its own independent findings and conclusions but at all times having in mind that it did not have the advantage of seeing the witnesses testify. See Okeno vs Republic (1972) EA. 6. The case before the trial court was that the appellant and the complainant (Pw1) had a relationship. On the material day at about 3.00pm, the appellant wanted to go out with their child but Pw1 objected as the child was one-year-old and therefore too young. She went to the bathroom to bath and when she returned to the house, the appellant attacked her with a panga. He cut her on both hands severing the right one. He also cut her on the legs. She raised alarm but no one came to her rescue. When she fell down she saw her daughter Millicent Akoth (Pw2) come. She lost consciousness and found herself in Jaramgi Oginga Odinga Teaching and Referral Hospital the following day. She remained in hospital for 3 months undergoing treatment. Page 2 of 10 7. In cross-examination, she insisted that she was a wife to the appellant. That after assaulting her the appellant left the panga behind and run away. 8. Pw2 told the Court that on the material day, she was at home as she had been sent away from school for school fees. She went to the shops with her younger sister. When she returned, she saw the appellant assaulting her mother Pw1. The appellant threatened her not to raise any alarm. She therefore hid herself and the child. When the appellant run away, she took the panga to her grandmother. She recognized the appellant at the scene as her father who had assaulted her mother. 9. In cross-examination, she confirmed that when she returned from the shop, she found the appellant assaulting Pw1 who was on the floor. She wanted to scream but the appellant warned her. She went to the police accompanied with her grandmother to make a report. 10. No. 77630 Corporal Sebastian Mrima attached to Koru Police Station was at the Station on 24/11/2021 when one by the name Samuel Wekesa reported the case of the assault of Pw1. The case was minuted to him to investigate. He visited Pw1 in hospital and found her in bad state. She came to the Station after she got better and recorded her statement. After the incident the appellant disappeared from the area until he was arrested at Butere on 3/1/2023. Pw3 collected the appellant from Butere Police Station Page 3 of 10 on 5/1/2023 and brought him to Koru Police Station. He him who indicated that he and Pw1 had disagreed on some money. He produced the panga as PExh1. 11. When cross-examined, he told the Court that he visited the scene and hospital. He insisted that the report was made to the police by one Samuel. That the appellant had disappeared from the area after the incident. 12. Pw4 was Dr. Ombok Lucy. She examined Pw1 and filled her P3 Form on 4/1/2022. Pw1 reported having been assaulted by her husband. She had an amputated right arm with a Plastic of Paris on the left hand. The left hand had deep cut wounds, legs cut but healing. The injuries were 1 month 12 days old. The injuries were by a sharp object. She classified the injuries as grievous harm. She produced the P3 Form and Discharge Summary from JOOTRH as PExh2 and 3, respectively. 13. On cross-examination, she confirmed that she examined Pw1 on 4/1/2022 at JOOTRH. Pw1 had been admitted in that hospital earlier. Her right arm had been amputated. 14. When placed on his defence, the appellant narrated how two police officers approached him at his place of work on 14/2/2023. They asked him to go to the Police Station at 6.00pm. when he went to the Station, the police questioned him about his landlord. That the landlord had complained that he Page 4 of 10 had taken money from the landlord and had not repaid it. They agreed he returns the following day. When he returned on 15/1/2023, he was remanded in the cells and arraigned in Court for the offence charged with. 15. When cross-examined, he told the Court that he could not recall where he was on the 23/1/2023. That Pw1 was his Landlord and had been staying at her plot as her tenant. That he did not assault her and neither did they have any relationship other than that of landlord-tenant. 16. In his submissions dated 3/12/2025, the appellant submitted that there were material contradictions in the prosecution case. That Pw2 stated he found the appellant cutting Pw1. But in cross-examination, she stated that Pw1 had been cut and was on the floor. That the testimony of both Pw2 and Pw3 contradicted on where the panga was recovered from. 17. That there was contradiction on who reported the case to the police, the grandmother of Pw2 or Samuel Wekesa. That the discharge summary showed that Pw1 was admitted on 21/12/2021. Pw1 stated that she was admitted for 3 months while the discharge summary showed 15 days. He relied on the case of Ndungu Kimani vs Republic (1979) KLR 283 on the proposition that he had created doubt in the prosecution case which should have been resolved in his favour. Page 5 of 10 18. He further submitted that his defence was wrongly dismissed. That the prosecution should have rebutted his defence. That the Court erred in shifting the burden to him to disprove the prosecution case. 19. Finally, that the life sentence was manifestly excessive relying on the Court of Appeal dicta in Hamisi Bakari & Anor vs Republic (2018) eKLR. That no DNA was undertaken on the 1-year child who was the alleged cause of the assault. 20. The Court has considered the evidence and the submissions on record. The appellant faced the charge of causing grievous harm contrary to section 234 of the Penal Code. Section 4 of the Penal Code defines Grievous harm as: - “Any harm that seriously or permanently injures health, results in a permanent disfigurement, or severely damages any external or internal organ, membrane, or sense.” 21. In this regard, the ingridients to be proved by the prosecution beyond any reasonable doubt were:- a) that the complainant suffered grievous harm; b) the harm was caused unlawfully; c) the accused was the perpetrator. Page 6 of 10 22. The first ground was that the trial court erred in failing to find that the prosecution case was not proved to the required standard. On the first ingredient, it was the testimony of Pw1 that on the material day at about 3.00pm, the appellant assaulted her with a panga. He cut her on the hands and lower limb. He severed her right hand. The medical records produced by Pw4 showed Pw1 suffered cut off right hand with elbow fracture of the left arm with deep cut wound. On the lower limbs, she suffered deep cut wound healing on the right leg. There had been amputation of the right hand prior to examination. 23. Pw4 who examined Pw1 assessed the degree of injuries suffered as grievous harm. They were permanent and irreversible in term of the definition of grievous harm in section 4 of the Penal Code. That element was proved to the required standard. 24. The 2nd element is that the harm was caused unlawfully. The irrefutable evidence on record is that the harm was as a result of assault on Pw1 by a sharp object. The assault was neither authorized nor was it necessary. It was therefore unlawful. No explanation was given for the assault. This element was proved beyond reasonable doubt. 25. The last element is that the harm was caused by the appellant. Pw1 testified that she and the appellant had a relationship of man and wife. That he was Page 7 of 10 in her house on the material day at about 3.00pm. That he is the one who assaulted her with a panga. Pw2 came and found Pw1 being assaulted. She testified that the complainant and the appellant were her parents. That when she returned from the shops, she found the appellant assaulting Pw1. That the appellant threatened her not to raise alarm. She hid with the child until the appellant left. 26. In cross-examination, that evidence was not seriously challenged. It was not displaced. The assault occurred at day light. The perpetrator was known to both Pw1 and Pw2. There could be no chance of mistake in the circumstances. In the circumstances, it was proved to the required standard that the appellant was the perpetrator. 27. The appellant complained that the evidence was contradictory. He set out the contradictions as; the recovery of the assault weapon, the reportee, the testimony of Pw2 as to the assault and the dates of admission and discharge of the complainant from hospital. 28. The general rule is that not every contradiction that will warrant upsetting the decision arrived at by a trial court. See the case of MTG vs Republic (2022) KEHC 189 KLR. In Joseph Maina Mwangi vs Republic CRA No. 73 of 1993, the Court of Appeal observed that in any trial there are bound to be some discrepancies. That only where there are material Page 8 of 10 discrepancies and contradictions that the same can warrant interference with the conclusions arrived at by a trial court. 29. In the present case, the recovery of the panga, the reporting of the incident to the police, the alleged witnessing by Pw2 of the appellant assaulting Pw1 and Pw1 being on the floor as well as the dates of admission and discharge to and from hospital were not material enough to disturb the trial courts findings. They do not cast any doubt that the injuries were harm, that they were unlawful and that they were inflicted on Pw1 by the appellant. Accordingly, that ground is without merit and is dismissed. 30. The final ground was that the appellants defence was not considered. That is far from the truth. The trial court considered that, the appellant did not explain his whereabouts on the date of the incident. He had not displaced or cast any doubt on the prosecution evidence that he was at the scene and had fled into hiding for nearly 2 years. The trial court also considered that the issues raised by the appellant in his defence eg. his tenancy relationship with Pw1, his allegedly owing her money were never raised with the prosecution witnesses. I am in agreement that the trial court was right in terming the said defence as afterthought. That ground also fails. 31. As to the sentence, section 234 of the Penal Code provides: - Page 9 of 10 “Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.” 32. It is clear that the sentence provided for by the law for the offence of causing grievous harm is life imprisonment. The trial court considered all the mitigating factors and arrived at the only conclusion that due to the manner in which the offence was viciously committed, ruthless execution and the life long effect it has on the victim, the only appropriate sentence was the maximum sentence of life. No doubt sentencing is in the discretion of the Court. It was not shown that the trial court abused or wrongly exercised its discretion. I decline to disturb the sentence as I find it to be appropriate. 33. Accordingly, I find the appeal to be without merit and I dismiss it and uphold the conviction and sentence. It is so decreed. DATED and DELIVERED at Kisumu this 5th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 10 of 10