https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13047

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENTA AT KIBERA** **CRIMINAL APPEAL NO. E069 OF 2026** **VINCENT JOHANNES OPIYO…………………………………...…..APPELLANT** **VERSUS** **REPUBLIC……………..……………………………………….……RESPONDENT** *(Being an appeal against the original conviction and sentence delivered on 14th May 2026 by Hon. Kahuya I.M (S.P.M) at Kibera Chief Magistrate’s Court Criminal Case no. E764 of 2023 Republic vs Vincent Johannes Opiyo)* **JUDGEMENT** 1. The appellant, Vincent Johannes Opiyo, was charged with grievous harm contrary to section 234 of the Penal Code. The particulars were that on 27th July 2025 at about 9.00 a.m., at St. John Baptista Legio Maria Church within Kibera Kianda, Kibra Sub-County, Nairobi County, jointly with others not before the Court, he unlawfully did grievous harm to Maurice Juma Omwanga. He was convicted of assault occasioning actual bodily harm contrary to section 250 as read with section 251 of the Penal Code and sentenced to three years’ imprisonment. 2. Aggrieved by both conviction and sentence, the appellant lodged this appeal. His principal complaint is that the trial court convicted him of an offence different from that with which he was charged without first amending the charge, taking a plea on the substituted offence or affording him an opportunity to defend himself against it. He further contends that the prosecution evidence was insufficient and materially inconsistent. He therefore seeks the quashing of the conviction and setting aside of the sentence. 3. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. In **Okeno v Republic [1972] EA 32**, the Court stated that the first appellate court must subject the evidence to a fresh and exhaustive examination and make its own findings, whilst giving due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. 4. The prosecution called five witnesses. PW1, Maurice Juma, was the complainant. He testified that while conducting a church service, the appellant entered the church accompanied by two other men. The two men grabbed him, dragged him away from the pulpit and restrained him, whereupon the appellant butted his head against the complainant’s right eye. The complainant immediately began bleeding profusely. 5. PW2, Lucy Atieno, and PW3, Elias Onyango, were present at the church and assisted the complainant after the assault. They escorted him to a private medical facility where he received first aid and thereafter to Jamhuri Police Station, where the incident was reported. Their evidence therefore materially corroborated the complainant's account as to the immediate aftermath of the assault. 6. PW5, PC Karori, was the investigating officer. He recorded the statements of PW1, PW2 and PW3 and issued the complainant with a P3 form. PW4, Dr Kamau Mariga, examined the complainant and found a swollen right eyelid and a red eye. He attributed the injuries to the application of force by a blunt object. Although the complainant had sustained an earlier injury to the same eye in 2004, the doctor was clear that the swelling observed at the time of examination was attributable to a recent assault. 7. The evidence must therefore be considered as a whole. The complainant gave a direct account identifying the appellant as the person who assaulted him. His account was corroborated by the evidence of PW2 and PW3 as to the circumstances immediately following the assault and by the medical evidence of PW4 as to the nature and recentness of the injury. The appellant's presence at the scene was not disputed. His own evidence placed him at the scene and admitted physical contact with the complainant, although he characterised that contact as an attempt to restrain him. 8. The defence was that the complainant had entered the church with other persons intending to remove the priest and that, in the ensuing commotion, the appellant merely held him by the waist to restrain him. DW2, Peter Bwire, supported this account. The issue, therefore, is not whether the appellant was present or whether physical contact occurred, but whether the prosecution proved beyond reasonable doubt that the appellant unlawfully assaulted the complainant and occasioned him actual bodily harm. 9. Section 234 of the Penal Code provides: **“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”** 1. Section 4 of the Penal Code defines grievous harm as: **“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.”** 1. A swollen eyelid and a red eye, though undoubtedly actual injuries, did not constitute maim, dangerous harm, permanent disfigurement or permanent or serious injury to an external or internal organ or sense within the meaning of section 4. The evidence consequently fell short of establishing grievous harm. 2. The trial court nevertheless convicted the appellant of the lesser offence of assault occasioning actual bodily harm under section 179 of the Criminal Procedure Code. Section 179(1) provides: **“When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.”** 1. Section 179(2) further provides: **“When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”** 1. The application of section 179 is, however, subject to the safeguards developed by the courts. In **Robert Mutungi Muumbi v Republic [2015] KECA 584 (KLR),** the Court of Appeal held: “*To sustain such a conviction, the court must be satisfied on two things. First, that the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by the charge, constitute the minor offence. Secondly, that the major charge has given the accused person notice of all the circumstances constituting the minor offence of which he is to be convicted.”* 1. The Court further emphasised that the purpose of the requirement is to ensure that the accused is not prejudiced and has sufficient notice of the elements of the minor offence. 2. In the present case, the charge of grievous harm alleged that the appellant unlawfully inflicted physical harm upon the complainant. The particulars set out the date, place, victim and manner in which the offence was allegedly committed. The substituted offence of assault occasioning actual bodily harm required proof of an assault and actual bodily harm. Those matters were contained within, and were necessarily subsumed by, the particulars of the grievous harm charge. 3. I therefore find that the substituted offence was a minor and cognate offence arising from the same transaction and the same factual allegations. The appellant was put on notice that the prosecution case was that he had unlawfully assaulted and injured the complainant. The fact that the injury ultimately proved was less serious than grievous harm did not introduce a new factual allegation or a different transaction requiring a different defence. 4. I have considered the appellant's complaint that he was neither called upon to plead to the substituted offence nor afforded a further opportunity to defend himself. While it would have been preferable for the trial court to expressly address the substitution and its implications before proceeding to conviction, section 179 does not require a fresh plea before a conviction for a minor offence can properly be entered. What is material is whether the requirements of the section were satisfied and whether the appellant was prejudiced in the conduct of his defence. 5. In the present case, PW1 gave direct evidence that the appellant butted his head against his right eye. That evidence was supported by the surrounding circumstances and, importantly, by the medical evidence. PW4 found a swollen right eyelid and a red eye and concluded that the injuries were recent and had been caused by blunt force. The previous injury to the same eye did not undermine the prosecution case because the doctor distinguished the old injury from the fresh swelling observed upon examination. 6. The appellant's defence that he merely restrained the complainant does not reasonably explain the fresh injuries documented by PW4. Nor does it displace the direct evidence of PW1 identifying the appellant as the person who struck him. I therefore find that the prosecution proved, beyond reasonable doubt, that the appellant assaulted the complainant and occasioned him actual bodily harm. 7. I accordingly find that the conviction under section 179 of the Criminal Procedure Code was lawful and was supported by the evidence. The appellant's complaint that the substitution occasioned him prejudice is not borne out by the record. The conviction for assault occasioning actual bodily harm is therefore affirmed. 8. On sentence, Section 251 of the Penal Code prescribes a maximum sentence of five years' imprisonment for assault occasioning actual bodily harm. The imposition of three years' imprisonment was therefore within the statutory maximum. 9. Nevertheless, the sentence must be considered in light of the offence actually proved and the circumstances in which it was committed. The injury established by the medical evidence was a swollen eyelid and a red eye. There was no evidence of permanent disability, permanent disfigurement or lasting impairment of the complainant's sight. The conviction for grievous harm having failed because the injury did not meet the statutory threshold, the sentence should correspond to the lesser offence ultimately proved. 10. In my view, the trial court did not sufficiently distinguish the seriousness of grievous harm from the actual injury proved. The circumstances disclosed a physical assault resulting in a swollen eyelid and a red eye, but no permanent or serious injury to the complainant's eye. A custodial sentence of three years, although lawful, is manifestly excessive in those circumstances. 11. Section 28(1) of the Penal Code permits the court, where an offence is punishable with a fine or imprisonment, to exercise its discretion in choosing between the two forms of punishment. Having considered the nature of the injury, the circumstances of the assault and the sentence imposed by the trial court, I consider a fine to be an appropriate and proportionate punishment. 12. Consequently, the sentence of three (3) years' imprisonment is set aside and substituted with a fine of Kshs. 200,000, and in default of payment, twelve (12) months' imprisonment. Orders accordingly. **Judgement dated and delivered this 18th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**