[2023] KEHC 25375 (KLR)

Wawire v Republic (Criminal Appeal E042 of 2023) [2023] KEHC 25375 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25375 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal E042 of 2023

GL Nzioka, J

November 9, 2023

Between

Jackson Wawire

Appellant

and

Republic

Respondent

(Being an appeal against the decision of; Hon. Y. Baraza (Senior Resident Magistrate) rendered on 7th December, 2021, vide Criminal Case No. 1398 of 2021, at the Chief Magistrate’s Court at Naivasha)

Judgment

1. The appellant was charged with the offence of grievous harm contrary to section 234 of the Penal Code. The particulars of the charge are that, on 6th day of August 2021, at Mirera in Naivasha Sub-County, he unlawfully did grievous harm to Violet Mukhwana (herein “the complainant”).

2. He pleaded not guilty to the charge and the case proceeded to full hearing. The prosecution case was led by the evidence of the complainant who testified that, she has been married to the appellant for a period ofthe last six (6) years. That, on the material date, the appellant sent her ksh 1,300 as fare and she travelled from her rural home in Kakamega to Naivasha where the appellant was residing.

3. That, the appellant picked her and the children from the bus stage to the house. That, he asked her to warm tea for the children and she did. That he called her brother and informed him that she had arrived but he would collect her as a corpse.

4. That, he then locked the door, took a panga and cut her on the hands, head and legs. As a result her fingers were deformed. That she screamed and the neighbours responded and took her to hospital, while bleeding profusely. The matter was then report to the police officers.

5. The prosecution case further states that, the appellant surrendered to the Police and reported that, he had cut his wife, with a panga. He was arrested and after the investigation, charged as herein stated.

6. At the close of the prosecution case, the trial court placed the appellant on his defence. He told the court that, the complainant was indeed his wife for seven (7) years. That, they disagreed after she found him with another woman and she ran away. That, he followed up the matter with the parents with no success.

7. That later in the month of May, he learnt that she was in Naivasha and in July, she returned to her rural home. He continued supporting the children and even bought uniform for them.

8. On 6th while at work, he met a friend and they went and took drinks, and as he was returning home, he met a group of five (5) young men smoking bhang and one accused him of being a killer. He was then attacked by one of them and boda boda riders joined him. He then ran to the police station where he met an officer one Ngetich.

9. That, another officer asked him whether he knew who killed the complainant and he told him he did not know. However, the officer had a grudge with him and planted the charges on him. That despite the absence of the panga allegedly used to cut the complainant and/or dusting the same for fingerprints, he was charged. He denied committing the offence.

10. At the conclusion of the trial, the learned trial magistrate vide a judgment dated 7th December 2021, convicted the appellant and sentenced him to life imprisonment. However, the appellant is aggrieved by the conviction and sentence and appeals based on the following grounds: -a.That the appellant pleaded not guilty in the instant case.b.That the learned trial Magistrate erred in law and facts when she convicted the appellant in a prosecution that was not proved beyond reasonable doubt.c.That the trial Magistrate erred in law and facts by failing to consider the defense.d.That he prays to be present during the hearing of this appeal.

11. However the Respondent opposed the application based on the grounds of opposition dated; 1st December 2022, which states: -a.That, the offence was sufficiently proved as provided under section 234 of the Penal Code. The complainant (PW1) and Doctor PW3 proved the same.b.That, in response to ground 2, the prosecution case was proved to the required standards.c.That, in response to ground 3, appellants defence was duly considered by the trial court.d.That, the trial court found that the prosecution case was proved beyond reasonable doubt and subsequently convicted him in line with section 215 of the Criminal Procedure Code.e.That the Honourable court be pleased to dismiss the appeal and uphold both the conviction and sentence.

12. The appeal was disposed of vide filing of submissions. The appellant submitted that, the charge sheet was fatally defective as he should have been charged under section 231 as read with section 234 of the Code. Instead, he was charged under section 234 of the Code only that provides the sentence for the offence, which prejudiced him as he did not know what the offence he was charged with and therefore could not prepare his defence.

13. He cited section 382 of the Criminal Procedure Code which states that a finding of a court shall not be reversed or altered on appeal on account of an error, omission or irregularity unless it occasioned a failure of justice.

14. He further submitted that, the prosecution failed to prove the ingredients of the offence being that; the victim sustained grievous harm, the harm was caused unlawfully, and the accused caused or participated in causing the grievous harm.

15. That, the prosecution did not link him to the offence as they failed to call the complainant’s children who were in the house as witnesses and who were allegedly also assaulted. Further, the police officers who rushed the complainant to hospital were not called to testify to prove that the complainant was in his house.

16. Furthermore, PW4 who visited the crime scene, never found any evidence that the offence occurred in the respondent’s house as he did not find the complainant’s children nor any blood stains.

17. The appellant argued that the sentence of life sentence meted out by the trial court was manifestly harsh and excessive as it is not a mandatory minimum sentence. That, although the sentence is lawful, the trial Magistrate failed to consider his mitigation and that he is a first offender and therefore had a right to benefit from the least severe sentence as envisaged under Article 50(2)(p) of the Constitution of Kenya, 2010.

18. The appellant relied on the case of; Omondi v Republic [2014] eKLR where the High Court upheld the sentence of twenty (20) years where the appellant used a knife to attack the complainant and the attack was unprovoked.

19. The appellant further stated that, the trial court did not inform him of his right to legal representation under Article 50(2)(g) and (h) of the Constitution and Article 14(3)(d) of the International Convention on Civil and Political Rights despite finding that he was psychiatric and therefore could not defend himself.

20. Furthermore, the offence carries a grave sentence of life imprisonment that he was sentenced to and relied on the case of; Legal Aid Board v The State (363/09) [2010] ZA ZASCA 112. Lastly, the appellant submitted that, the trial court failed to take into consideration his alibi defence that the prosecution did not displace.

21. However, the Respondent on its part submitted that, the prosecution proved its case beyond reasonable doubt and relied on the case of; William Kiprotich Cheruiyot v Republic [2021] eKLR, where the court held that the burden of proof lay with the prosecution.

22. The respondent submitted that the complainant gave evidence of how the appellant attacked her with a panga and she sustained serious injuries, and which evidence was corroborated by (PW3) Preston the clinical officer who produced the P3 form as prosecution exhibit 1. Further, PW2, the appellant’s neighbour and caretaker, found the complainant on floor bleeding. Furthermore, PW4 the investigating officer visited the scene and found the complainant in bad shape.

23. The respondent argued that, the trial court considered all factors of the case and the severity of the offence and imposed the sentence of life imprisonment and thus the same should not be interfered with.

24. Having considered the appeal I find that, the key question is whether the prosecution proved the case beyond reasonable doubt and/or whether the defence advanced was considered.

25. In that regard, the offence the appellant was charged with is provided for under section 234 of the Penal Code which states: -“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

26. Further section 4 of the subject Penal Code defines grievous harm as: -“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;

27. In the same vein, Court of Appeal in the case of; John Oketch Abongo v Republic [2000] eKLR held 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.In this case we have carefully considered the medical evidence and the findings made by the Clinical Officer both in the P3 form and in the evidence in court. We have also carefully considered the definition of grievous harm as contained, not only in the Penal Code already quoted in this judgment, but also in the P3 form to which we were referred by Mr. OnsongoWe 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.”(emphasis added).

28. Further, in the case of Pius Mutua Mbuvi v Republic [2021] eKLR the Court stated that: -16. The specificities of "grievous harm" therefore are; (1) 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 (2) a mental injury may amount to grievous harm but not to bodily harm (3) the injury must be "of such a nature as to cause or be likely to cause" permanent injury to health.”

29. In the instant matter, there is no dispute that the complainant was injured as stated in her evidence and supported by the medical evidence produced vide a P3 form prepared by Preston Otega PW3- which shows that, the complainant sustained the following injury:a.Hyperaemic mark on the left eyeb.Healed scar on the facec.Swelling on the right side of the faced.Stitched cut wounds on the anterior aspect of the facee.Both upper limbs in back stabf.Swollen right wristg.Stitched cut wounds on the left lower thumbh.Swollen lower limbs with stitched cut wounds and hyperaemic mark on left lower limbi.Segmented fracture of the left ulnaj.Distal fracture of the right ulnak.Left 5th intercarpal fracture

30. The key question is, who inflicted the injuries on her. It is the complainant evidence that, the appellant did it. The appellant was her husband. It does appear that the parties had domestic disagreements as stated by the appellant in his defence, therefore a clear confirmation the relationship between them was strained and could provide an opportunity for the appellant to harm her as stated. That fact supports to the complainant’s evidence that, it is the appellant who seriously assaulted her.

31. Even, then, the appellant has not offered any reasonable explanation why the complainant would accuse him of an offence he did not commit. Instead he has turned the blame on the arresting officer, alleging a grudge.

32. I further find that, PW2 Obed Ongera who was residing in the same plot with the complainant and the appellant and worked as a care taker, told the court that when he arrived at their premises, he found the complainant “lying at her door and she was bleeding”

33. That the appellant whom he named as “Jackson” had been living in the house with the complainant, and that when he arrived at the scene, the appellant was not there. The evidence of this witness corroborates the complainant evidence that she was injured at home and by the appellant, who in the house with her.

34. I also note that, PW4 PC Vincent Ngure testified that, the complainant told him that, it was the appellant who assaulted her. However, although he allegedly confessed to the offence, the same was not properly recorded as a confession as required under the law, therefore cannot be used against him.

35. Be that it may, there is sufficient evidence the appellant committed the offence and I uphold the finding of the court on conviction and decline to quash it. All other arguments on defective charge, lack of legal representation are not part of the grounds of appeal and were just introduced in the submissions.

36. As regards the sentence, I find that, the law provides for a maximum sentence of life imprisonment for the offence. In that regard the sentence meted out is lawful, legal, regular. However, taking into account that the appellant is a first offender and surrendered to after the police officers after the crime and considering the period he was in custody and has served so far, I sentence him to serve twenty (20) years imprisonment. The sentence shall take effect from the date he was arraigned in court and remained in custody.

37. It is so ordered.

DATED, DELIVERED, SIGNED THIS 9TH DAY OF NOVEMBER 2023GRACE L. NZIOKAJUDGEIn the presence of:-The appellant present virtuallyMs. Mogoi for the respondentMs. Ogutu court assistant