https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7656

Oyugi v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 7656 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7656 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E060 of 2024 JN Njagi, J May 22, 2026 Between Tyson Otieno Oyugi Appellant and Republic Respondent (Appeal from original conviction and sentence by Hon. F.M. Mulama, Resident Magistrate, in Lamu Principal Magistrate’s Court Criminal Case No. E168 of 2024 delivered on 17/9/2024) Judgment 1.The Appellant was convicted of the offence of occasioning a person grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on the 15th day of June, 2024 at around 0900 hrs at Kijitoni area in Langoni location, in Lamu Central Sub- County within Lamu County he intentionally and unlawfully caused grievous harm to Aboud Badi (herein referred to as the complainant) using a sword. 2.The appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:1.That the learned trial magistrate erred in law and facts by not finding that the credibility of the complainant was questionable and could not be a trustworthy witness.2.That the learned trial magistrate erred in law and facts when he failed to find that the prosecution case was not established against the appellant.3.That the learned trial magistrate erred in law and facts when he failed to appreciate that the defence of the appellant.4.That the learned trial magistrate erred in law and facts by failing to preside over a fair trial hence prejudicing the appellant. 3.The prosecution called 5 witnesses in the case while the Appellant defended himself and did not call any witness. 4.The case for the prosecution was that the complaint was a casual labourer. The Appellant was a barber. That on the material day at around 9am the complainant went to the barber shop of the Appellant to get a hair-cut. He found the Appellant at his barber shop but he did not have a machine for shaving. The Appellant asked him to be shaved by a razor blade but he declined. When he declined the Appellant started to abuse him. He took out a panga from a sack and cut him on the left knee and on the head. The complainant escaped and ran towards the police station. The Appellant chased him upto the police station. He was arrested and placed in custody. The complainant went to hospital. 5.The assault was witnessed by Abdul Mohamed PW4 who told the court that he met both the complainant and the Appellant at the barber shop of the Appellant. He heard the Appellant telling the complainant to buy a razor blade for him to shave him. The complainant declined. The Appellant removed a panga from a sack and hit the complainant with it on the head. The complainant started to bleed and escaped. The Appellant followed him and he did not know where they went. 6.The mother to the complainant PW3 told the court that he received a report of the assault and went to hospital where he found the complainant being dressed of the cuts. 7.The case was investigated by PC Duba Wako PW 5 of Lamu police station who testified that he was on that day at the police station when the complainant went there with injuries on the head and knee. He booked his report. The Appellant was taken to him by other police officers. He interrogated both the complainant and the Appellant. He found that the Appellant had unlawfully assaulted the complainant with a panga. He issued a P3 form to the complainant and sent him to hospital where his P3 form was completed. He charged the Appellant. 8.The complainant`s P3 form was produced in court by Dr. Amir Abdalla PW1 of King Fahad Hospital whose evidence was that the same was filled by a doctor colleague at the hospital who had observed that the complaint had cut wounds on the head and knee. He was dressed of the injuries. The doctor who completed the P3 form assessed the degree of injury as harm. PW4 produced the treatment notes and the P3 form in court as exhibits, P.Exh.1 and 2 respectively. Defence case 9.When placed to his defence the Appellant stated in a sworn statement that he was operating a barber shop. That on 15/6/2024 he was at the shop when the complainant went there while drunk and started to threaten him and told him that he is a non-local and he should go back to his county. That he started to force him to shave him but he told him that the machine did not have a charger and that he could only shave him with a razor if he bought one. That he continued to harass him and he refused to shave him. That the complainant got agitated and went and came back with a panga. He threatened to attack him and he blocked his attempts. He struggled with him and he injured himself with his own panga. 10.The appeal was canvassed by way of written submissions. Submissions 11.The Appellant submitted that the case against him was not proved beyond reasonable doubt. That the charges were not supported by direct evidence and the weapon said to have been used was not recovered. That there was contradictory evidence from the prosecution witnesses thus rendering their evidence not credible. That witnesses who were at the scene were not called to testify in the case. 12.It was submitted that the trial court shifted the burden of proof to the Appellant. That the prosecution evidence fell short of the legal threshold required for safe conviction. The Appellant urged the court to quash the conviction and the sentence. 13.The Respondent on the other hand relied on the definition of the term grievous harm as set out in section 4 of the Penal Code and submitted that the injuries amounted to grievous harm. That the sentence imposed by the trial court was proper due to the nature of injuries inflicted on the complainant. Analysis and determination 14.This is a first appeal and it behooves this court to exhaustively examine all the evidence tendered before the trial court, analyze it and arrive at its own conclusions but bear in mind that it neither saw nor heard the witnesses testify – see Okeno vs Republic (1972) EA 32. 15.The appellant was convicted of the offence of causing grievous harm. Section 234 of the Penal Code provides for the offence of grievous harm as follows:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life. 16.Section 4 of the Penal Code defines grievous harm in the following terms:"Grievous harm” means any harm which amounts to a maim or dangerous harm, 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, membrane or sense. 17.There is no doubt from the evidence adduced before the trial court that the Appellant attacked the complainant with a panga and injured him. The assault was witnessed by Abdul PW4. The complainant was treated of the injuries at King Fahad Hospital. The assault on the complainant was therefore proved. The question was whether the injuries amounted to grievous harm. 18.The doctor who examined the complainant found him with cut wounds on the head and on the knee. He classified the degree of injury as grievous harm. 19.As to what amounts to grievous harm was dealt with by the court in the case of Pius Mutua Mbuvi vs Republic (2021) eKLR where it was held that;“the specifics of grievous harm therefore are; in the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, to amount to bodily harm, the injury to health need not be permanent, secondly, a mental injury may amount to grievous harm but not to bodily harm and lastly, the injury must be ‘of such nature as to cause or likely to cause permanent injury to health." 20.In John Oketch Abongo v Republic (2000) eKLR, the Court of Appeal held that it is for the court to form an opinion from the evidence presented before it on whether or not the particular injuries amount to grievous harm. The Court that stated that:Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.….We are satisfied that the complainant's injury amounted to grievous harm as defined in the Penal Code. The definition contains several ingredients of what constitutes grievous harm. We are of the opinion that the presence of any one of these ingredients would suffice to disclose grievous harm. Here, we are satisfied that the complainant's injury did amount to dangerous or serious injury to health both of which are ingredients contained in the definition. 21.I have examined the nature of injuries occasioned to the complainant. There was no evidence that the injuries had the effect of causing the complainant or likely to cause him serious or permanent injury to his health or permanent disfigurement of any of his organs. The doctor who examined the complainant did not explain why he classified the degree of injury as grievous harm when there was no dangerous threat to the complainant`s health. I therefore do not agree with the finding of the doctor that the injuries amounted to grievous harm. 22.Section 251 of the Penal Code established the offence of assault causing actual bodily harm. The section provides that:Any person who commits an assault causing actual bodily harm is guilty of a misdemeanor and liable to imprisonment for five years. 23.Section 2 of the Penal Code defines the term “harm” to mean –“any bodily hurt, disease or disorder whether permanent or temporary." 24.In view of the fact that the injuries occasioned to the complainant were not permanent, I find that the injuries amounted to bodily harm. Consequently, I find the offence committed by the Appellant to be assault causing actual bodily harm contrary to section 251 of the Penal Code. 25.The complainant gave evidence that the Appellant attacked him with a panga because he refused to be shaved with a razor blade. This evidence was corroborated by Abdul PW4 who in my view was an independent witness in the case. He had no reason of lying against the complainant. 26.The Appellant in his defence alleged that it is the complainant who went to his shop and started to threaten him. That the complainant was cut by his own panga as he tried to cut the Appellant. It is however to be noted that the complainant did not raise such issues when he cross-examined the complainant and Abdul in court. The defence can only have been an afterthought. The trial court rightly dismissed the defence. The assault on the complainant was unlawful. He is accordingly convicted for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. 27.The punishment for the said offence is imprisonment of upto five years imprisonment. I have perused the pre-sentence report that was presented before the trial court. The Appellant was a first offender and a family man. In my view he deserved a more lenient sentence. 28.The Appellant however cut the complainant for no apparent reason. He chased him with a panga all the way to the police station. One wonders what he would have done to him had he caught up with him. This depicts the Appellant as a violent man and of bad temper. A custodial sentence was deserved in the circumstances of the case. A sentence of three years would serve the purpose of reformation. 29.The upshot is that the conviction and sentence on the offence of grievous harm are set aside and substituted with a conviction on the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The Appellant is in respect of the said offence sentenced to serve three years imprisonment commencing from the date of his arrest. DELIVERED, DATED AND SIGNED AT GARSEN THIS 22ND DAY OF MAY, 2026J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – Present virtually at Kamiti Maximum PrisonCourt Assistant – Rahma