[2009] KEHC 394 (KLR)
The court found that the medical evidence, specifically the P3 form, assessed the injuries as 'maim', which falls within the statutory definition of 'grievous harm' under Section 234 of the Penal Code. The judge held that bleeding from the ear could indicate internal injury and, in light of the professional medical...
Source-derived case information.
- Citation
- [2009] KEHC 394 (KLR)
- Parties
- Applicant: Republic; Respondent: Shaban Roman Mwalewa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 13 of 2009
- Procedural Posture
- Criminal Revision / Ruling on Revision of Conviction Before Sentencing
- Outcome
- Conviction upheld; matter remitted for sentencing.
- Judges
- JV Juma
- Legal Topics
- Assault, Grievous Bodily Harm, Sentencing, Medical Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Shaban Roman Mwalewa
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Conviction Before Sentencing
Legal Issues
- 1 Whether the conviction for grievous bodily harm was supported by the medical evidence presented in the P3 form.
- 2 Whether the injuries sustained by the complainant amounted to 'maim' or 'grievous harm' as defined by law.
- 3 Whether the trial magistrate's referral for revision was justified.
Ratio Decidendi
The court found that the medical evidence, specifically the P3 form, assessed the injuries as 'maim', which falls within the statutory definition of 'grievous harm' under Section 234 of the Penal Code. The judge held that bleeding from the ear could indicate internal injury and, in light of the professional medical assessment, there was no basis to dispute the finding of 'maim'. Since 'grievous harm' includes 'maim', the charge was properly framed, and the conviction was proper. The court therefore declined to interfere with the conviction and directed the trial magistrate to proceed to sentence the accused according to law.
Court Disposition
Conviction upheld; matter remitted for sentencing.
Orders
- The conviction for grievous bodily harm is upheld.
- The trial magistrate is directed to proceed to sentence the accused in accordance with the law.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Criminal Revision 13 of 2009
REPUBLIC …………………………..……………………… APPLICANT
VERSUS
SHABAN ROMAN MWALEWA ………..…….………… RESPONDENT
**********************
RULING
This is a revision referred to the High Court by the learned Resident Magistrate Wundanyi Law Courts. The accused had been charged in the subordinate courts with the offence of Assault Causing Grevious Bodily Harm contrary to Section 234 Penal Code. The accused pleaded guilty to the offence and was duly convicted. The trial magistrate before sentence looked at the P3 form and formed the opinion that the conviction for Grevious Harm may not have been supported by the P3 form. She then referred the matter for review of that conviction.
I have perused the P3 form and I note that the complainant is indicated to have suffered a cut on the ear, bruises on the neck and both hands with bleeding from the ear. Without the evidence of a medical doctor it would be difficult to assess how serious these injuries were. The trial magistrate appears to believe that the injuries are minor. I do not concur with this opinion. Bleeding from the ear indicates some kind of internal injury. I note that in the P3 form the degree of injury was assessed by the doctor as “maim”. I have no reason to dispute this assessment since it has been made by a professional. In the same P3 form under “Definitions” the term maim is defined thus –
“Maim” means the destruction or permanent disabling of any external or internal organ, member or sense.”
In view of this definition the bleeding from the ear could well be described as “maim”. Further on the term “Grevious Harm” is described as –
“Grevious Harm” means any harm which amounts to maim, or endangers life, 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.”
Thus it is clear that “Grevious Harm” includes “Maim”. As such I find that the charge was properly framed against the accused. The conviction in my view was proper and I find no reason to interfere with the same. I hereby direct that the learned trial magistrate proceed to sentence the accused in accordance with the law.
Dated and Delivered at Mombasa this 6th Day of November 2009.
M. ODERO
JUDGE