https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8880

Karanja v Republic (Criminal Appeal E063 of 2025) [2026] KEHC 8880 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8880 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E063 of 2025 GL Nzioka, J June 18, 2026 Between Paul Gitau Karanja Appellant and Republic Respondent (Being an appeal against the judgment of Honorable M. K. Mutegi, PM, delivered on 4th June 2025, vide Criminal Case No. E281 of 2024, at the Senior Principal Magistrate's Court at Kangema) Judgment 1.The background facts of the matter are that, the appellant was arraigned before the trial court, charged in two counts with the offence of causing grievous bodily harm, contrary to section 234 of the Penal Code, (cap 63) Laws of Kenya. 2.The particulars of the charges are that, on the 20th day of April 2024, at around 0900 hours, at Nyakahura sub-location, Gacharaigu location of Kangema sub-county, within Murang’a County, he unlawfully did grievous harm to James Kitonga Gichuhi, the complainant in the first count, and John Kimani Kanyaru, the complainant in the second count. 3.The charges were read to the appellant, and he pleaded not guilty thereto and the case proceeded to full hearing, with the prosecution calling a total of eight (8) witnesses, and the appellant defending himself through a sworn statement without calling any witnesses. 4.He was subsequently found guilty on both counts and sentenced to serve ten (10) years imprisonment on each count and the sentence ordered to run concurrently. 5.However, he is aggrieved by the judgment of the trial court and has appealed against it on six (6) grounds as stated in the memorandum of appeal dated 11th June 2026. The summary of those grounds are that; the prosecution did not prove the ingredients of the offences and the mens rea was not established. 6.Further, that the court failed to appreciate that the appellant acted in self-defence. Furthermore, the trial court failed to consider the evidence that he was suffering from a mental problem and/or acted in a state of automatism being a recognized mental condition. 7.Finally, that he was sentenced to a long custodial sentence instead of the court ordering for his hospitalization. That the sentence meted out is harsh and inappropriate for reasons stated at paragraph 6 of the memorandum. 8.The appeal was disposed of vide filing of submissions considered herein. 9.In a nutshell, the trial court was informed by the prosecution that, (PW1) No. 54289, Corporal James Gitonga Gichuhi, was in his house when he was informed by his wife that there was someone who wanted to see him. That he got out of his house and found the appellant who informed him that he wanted to write a report about a boundary dispute. That PW1 told the appellant they go to the scene which they did. PW1 then advised the appellant to go to the Sub-Chief to deal with the matter. 10.That on the material day, the appellant demanded that PW1 Gichuhi record his report in the occurrence book but PW1 hesitated. However, the appellant insisted that PW1 record the report and when PW1 refused to record the report, the appellant lifted a panga he was carrying and aimed it at PW1’s head. In response PW1 raised his hands to protect his head and the appellant chopped off PW1’s middle finger on his left hand cut and the thumb finger on his right hand. PW1 lost consciousness, was rushed to Kikuyu General Hospital where he was admitted for five (5) days and discharged. 11.The prosecution produced PW1’s discharge summary dated 23rd April 2024 as evidence and the panga which the appellant used to cut PW1 as prosecution exhibits. 12.In the meantime, upon learning of the assault of PW1, (PW3) No. 91811 PC John Kimathi Kanyaru and the Area Chief decided to seek the appellant and caught up with him at Nyakahura shopping centre. However, when he was requested to surrender he declined and instead removed a kitchen knife and stabbed PW3 on his right hand and chest. 13.(PW3) Kanyaru was also taken to the hospital, admitted for a number of days and discharged. A P3 form, the knife and victim’s blood stained clothes were produced as prosecution exhibits. 14.In the meantime, Chief Inspector Mwathe managed to disarm the appellant who was arrested and charged after the conclusion of investigations. 15.The appellant was placed on his defence and stated that, he was not taking his medicine because the doctors had gone on strike. That the following Saturday as he was going to his Shamba he met a neighbour who distracted him and swore he would see a casket in their home. That he had even reported the matter to the police. 16.That he lost his job at H. Young Company because of attending clinics in Mathari hospital and returned back home from Nairobi in 2016. That he planted Napier grass but the neighbour reported to the Sub Chief and complained that he had planted in her Shamba and they quarrelled over the land. Further the neighbour’s son dug a furrow in his Shamba, uprooted his napier grass and threatened him. 17.That he went to report the matter to the police and Corporal Gitonga told him to take the case to the Chief, which he did and the Chief then sent him to a village elder. The village elder told him to look for Kenya shilling 7,000 for survey. He paid 3,500 but the other party did not pay his share. 18.That on the material day, he went to make the report at the Police station and Corporal Gitonga started beating him up and chasing him away. That he had a panga when Corporal Gitonga attempted to strike him and, he lifted the panga to cover his head and Officer’s hand got stuck and he was injured. That he did not have the intention to harm anything or anyone. 19.That he went home and changed to go for dowry ceremony for his niece and while at the shopping center to wait for the vehicle, the chief and Sergeant Kimathi went started beating him up with a forked jembe sticks. He then ran into a hotel and picked a knife to scare them way but unfortunately the officer got stabbed in the chest. He fell down, was arrested, taken to the Police Station. That he was taken for medical checkup and the doctor wrote a letter, which he had in court. He prayed for his release. 20.At the conclusion of the trial the appeal is considered in recognition of the role of the first appellant court being to review the evidence afresh and arrive at its own conclusion guarding against lack of demeanour as stated in the case of; Okeno Vs Republic (1972) EA 32. 21.In that matter, the court stated as follows: -“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that, the trial court has had the advantage of hearing and seeing the witnesses” 22.Pursuant to the aforesaid and considering the material before the court, I note that on the first ground of mental instability, the appellant submitted that he has availed medical documents annexed affidavit dated 16th June 2025 to prove he has been on medical treatment for mental instability since 1998. 23.Further that the doctors were on strike and therefore could not produce any medical documents to support his mental state at the material time of the offence. Furthermore, that he was undergoing stress at the time of the offence which was aggravated by boundary dispute as confirmed by Dr. Leonard Njeru Njiru, thus impairing his sense of judgment. 24.However, the respondent argues that, Section 11 of Penal Code, creates presumption of sanity unless otherwise proved, whereas Section 12 thereof creates the defence of insanity albeit with a proviso. 25.Furthermore, that the facts herein reveal that the appellant knew he had a dispute, where to report it and indeed went to the police station. That he only reacted when PW1 declined to receive the report and book it into the Occurrence Book. That he even ran away as he knew what he had done and later while armed with a knife, he attacked PW3 after declining to surrender. 26.The respondent submits that from the afore chronology of events the appellant had the mens rea and although he suffers from Shizophrenia, it did not affect his state of mind so as not to understand his action. 27.In determining the issue of insanity herein, it suffices to note thatSection 11 of the Penal Code establishes the presumption of sanity. It states that every person is presumed to be of sound mind, and to have been of sound mind at any point in question, until the contrary is proved. 28.However, section 12 of the Penal Code provides as follows: -“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.” 29.Similarly, the Court of Appeal in the case of; Leonard Mwangemi Munyasia v Republic [2015] eKLR stated that:“Under the rule insanity is a defence if at the time of the commission of the act, the accused person was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. In such circumstances, the accused person will not be entitled to an acquittal but under section 167 (1) (b) of the Criminal Procedure Code he would be convicted and ordered to be detained during the President’s pleasure because insanity is an illness (mental illness) requiring treatment rather than punishment. Such people when so detained are considered patients and not prisoners.Both section 12 aforesaid and the McNaughten Rules recognize that insanity will only be a defence if it is proved that at the time of the commission of the offence charged, the accused person, by reason of unsoundness of mind, was either incapable of knowing the nature of the act he is charged with or was incapable of knowing that it was wrong or contrary to law. The test is strictly on the time when the offence was committed and no other.” 30.However, it is noteworthy that the accused person bears the burden to prove insanity on a balance of probability. In that regard the Court of Appeal in the case of; Hirbo v Republic (Criminal Appeal 27 of 2021) [2023] KECA 249 (KLR) (3 March 2023) (Judgment) stated that:“With regard to the burden of proof, the law is that the burden of proof lies on the defence to show that the accused person suffered mental challenges at the time of committing the offence. This principle of law was stated by this Court in C N M vs. Republic [1985] eKLR thus:“…where an accused raises the defence of insanity, the burden of proving insanity rests with the accused, because a man is presumed to be sane and accountable for his actions until the contrary is shown. But while this burden rests with him, it is not such a heavy one as rests on the prosecution, and indeed after considering the evidence it is to be decided on the balance of probability, whether it seems more likely that due to mental disease the accused did not know what he was doing at the material time, or that what he was doing was wrong, and so could not have formed the intent to kill the deceased.” 31.The law is settled pursuant to Section 107, 108, and 109 of Evidence Act (cap 80) Laws of Kenya that he who alleges proves the allegations. In the instant case, the appellant did not produce any medical documents to prove that he was suffering from any disease of the mind. The documents he is referring to herein are medical reports attached to an affidavit in support of a notice of motion application dated 16th June 2025 seeking for bail pending hearing of the appeal. As such they were not available for consideration by the trial court. 32.Even then, those documents do not prove that the appellant was so suffering from a disease of the mind at the time of the offence. Notably the medical document by Dr Leonard Njeru Njiru is dated 19th March 2025, whereas the offence was committed on 20th day of April 2024. It suffices to take judicial notice of the fact that even people who suffer from a mental disease of the mind, may have lucid moments. It does not follow that, they are always unable to make a sound judgment all the time. 33.Moreover, the issue of mental incapacity was raised by the appellant during the defence and therefore did not accord the prosecution an opportunity to investigate the allegation. 34.But even if the court were to consider the subject documents, the law does not have provisions for admission of evidence at the appellate stage. The appellate court has no original jurisdiction in a matter as herein. Therefore, as much as the appellant may be suffering from a disease of the mind, the same was not proved during the trial. 35.Consequently, the ground of insanity fails. 36.As regards the ground of self defence, the appellant submitted that in a rural set up people carry farm implements like a panga, jembe and others and having possession thereof is not evidence of intent to harm anyone or anything and/or premeditation to commit an offence. That in addition, he was defending himself from assault by the victims. 37.However, the respondent submitted that the appellant only raised the defence during trial after PW7 testified. Further the defence is not tenable as the officers were not armed, and the appellant has no defence wounds. Furthermore, it is a paradox to plead insecurity at the same time self defence. 38.The defence of self-defence is provided for under section 17 of the Penal Code as follows:“Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.” 39.Furthermore, the Court of Appeal in the case of; Mulewa v Republic (Criminal Appeal 61 of 2020) [2023] KECA 263 (KLR) (17 March 2023) (Judgment) reiterated the principles it set out in Victor Nthiga Kiruthu & another v Republic [2017] eKLR and stated that –“The principles that have emerged from these and other authorities are as follows:i.Self defence, as the term suggests, is defence of self. It is the use of force or threat to use force to defend one self, one’s family or ones property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.ii.The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.iii.It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.iv.The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.v.What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.” 40.Having considered the evidence herein I concur with the submissions of the respondent that having failed to cross examine the complainants on the subject defence and taking into account all eye witnesses testified to the appellant assaulting the victims without provocation, the defence cannot stand. 41.To the contrary it is the appellant who was armed and in fact after cutting PW1 with a panga, he changed clothed and then armed himself with a knife and stabbed PW3. There is no evidence that the officers were armed, and if they were, it is unlikely they would not reiterate upon attack. 42.Moreover, the defence of the appellant and his narration of the events of the day negates anyone whose mental judgement was impaired. 43.The last ground of appeal relates to sentence meted out. The appellant argues that it is harsh taking into account that he is 61 years old and mentally sick and so the court should have ordered for his hospitalization and imprisonment. That in his state it will be hard to be monitored in prison. 44.However, the respondent argues that the ten (10) years meted out took into account reports received and appellants age. That the victims suffered permanent disability and so the sentence is commensurate to the offence. 45.It suffices to note that under Section 234 of the Kenyan Penal Code (Cap 63), unlawfully causing grievous harm to another person is a felony punishable by up to imprisonment for life. 46.In sentencing an accused person, the court must consider inter alia; severity of the crime and assess the harm or damage caused, and if violence or cruel methods were used. The victim impact statements, the court should consider the input from the victim or their family regarding the physical, emotional, and economic harm the crime has caused them. 47.In the instant matter, the appellant injured two police officers seriously. He chopped off the finger of PW1 leaving him with a permanent injury what affects his cosmetic appearance and attracts public inquiry thereby subjecting him to long life trauma. PW3 was stabbed in the chest. Both victims were hospitalized for quite some time. How will they ever receive justice if the appellant is set at liberty to continue with his life as they nurse their permanent wounds. 48.Even then, the argument in submissions that, it will be difficult to manage him in prison due to his mental state does not hold water. The law is clear as to what order to make if a convict is found guilty but insane. Therefore, even if he was found guilty but insane he would be detained at President’s pleasure and in a hospital but not be released to go home as sought herein. 49.In fact, the appellant’s own argument that he committed the offence herein because he had not taken his medicines and therefor was not able to make a sound judgment works to his detriment. He becomes a serious danger to the society. 50.Pursuant to the aforesaid there is no room to interfere with the sentence. In any case, the order that, he serves the sentence meted out concurrently basically reduce the sentence on each count to five (5) years and subject to remission. 51.The upshot of the aforesaid is that the appeal dismissed in its entirety. However, the appellant is at liberty to seek for review of sentence after serving at least half of the sentence meted out which application will be considered on merit. 52.Right of appeal against this judgement in 14 days is explained. DATED, DELIVERED AND SIGNED ON THIS 18TH DAY OF JUNE, 2026GRACE L. NZIOKAJUDGEDelivered in court in the presence of:Ms Ochieng for the appellantNo appearance for RespondentMr. Simon: Court Assistant