Elijah Mzee Mwasaru v Republic

7. The complainant was rushed to Wesu Hospital. Doctor Mlamba testified on behalf of Doctor Winnie who examined the complainant. 8. The degree of injury was classified as grievous harm. 9. In defence, the Appellant said he was asleep when he heard his brother crying for help. He went out and found the complainant assaulting the brother. He said he saw the complainant bleeding. He called for help and the complainant was taken to Nyache Dispensary for treatment. 10. The trial court found the Appellant guilty as charged and sentenced him to 30 years imprisonment. 11. The Appellant has appealed to this court against both conviction and sentence on the following grounds:i. That the learned trial Magistrate erred in law and fact by convicting the Appellant yet failed to find that the medical evidence adduced contradicts the evidence adduced by and also by the charge as stated making it devoid of belief. ii. That the learned trial magistrate erred in law and fact by convicting the Appellant yet failed to appreciate that the charge sheet was fatally defective as the evidence adduced in the trial does not reveal the offence stated in the charge. iii. That the learned trial magistrate erred in law and fact by failing to appreciate that it was the Appellant’s brother who was the instigator of the fight and not the Appellant. iv. That the learned trial magistrate erred in law and fact by failing to appreciate that the Appellant’s identification was not positive and as such could not safely sustain a conviction. v. That the learned trial magistrate erred in law and fact by failing to consider the Appellant’s defence yet the same was cogent and believable. vi. That the sentence imposed was both harsh and excessive since it was applied in mandatory terms as provided by the statute and failed to consider the Appellant’s mitigation and the facts and circumstances unique to the case. 12. The parties filed submissions as follows:- the appellant submitted that the offence was not proved to the required standard. The medical evidence that was tendered was riddled with contradictions. PW3 Dr. Timothy Mlamba produced P3 form where the injuries were classified to be that of Harm and not grievous harm a he was charged. 13. Further, that the original charge was defective within the meaning of section 214 of the Criminal Procedure Code. 14. The appellant submitted further that he was not positively identified. PW4 who was an eye witness did not see the appellant beating PW1. His evidence was clear that he went to get rope and on coming back he found PW1 with a fracture and thus could not ascertain who caused the injuries. It was the appellants argument that in regard to recognition there was no cogent evidence that the appellant was positively identified. 15. The appellant further submitted that his defence was not considered by the trial court. It was his defence that he was trying to separate a fight and he went a step further to try and assist PW1 get treatment. This was corroborated by the evidence of PW4 who stated that the appellant was within the homestead when Mwabili and PW1 started fighting. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19651/eng@2025-05-02 2

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16. The appellant submitted further that his sentence was harsh and excessive. He argued that he was a first offender and that the offence of grievous harm attracts a discretionary sentence of between one day and life imprisonment. The appellant thus urged the court considers the circumstances of the case in order to arrive at a more lenient sentence. 17. The prosecution alternatively submitted that it was the testimony of PW1 the complainant of this case that he was beaten by the appellant as a result of which he was admitted in hospital for a month and a metal implant placed in his leg. PW2 the doctor stated that the complainant had compound fracture on the left lower limb and that he was operated on which injuries he suffered after the assault. The P3 form and treatment notes were produced in court as proof of the same. 18. The prosecution argued that the appellant was positively identified by PW1 and PW4 who in their testimony stated that they saw the appellant at the scene of the crime. The appellant was well known to them and thus there was no doubt as to his identity. 19. The prosecution submitted that section 234 which the appellant was charged prescribes life imprisonment to any person found guilty of the offence of grievous harm. It was therefore the prosecutions contention that the sentence of 30 year imposed was not harsh based on the circumstances. 20. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must reexamine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind. 21. The Court of Appeal in Okeno vs Republic [1972] EA 32 held that: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R (1957) EA 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 finding and conclusion; 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, see Peters vs Sunday Post [1958] EA 424.” 22. 23. The issues for determination in this appeal are as follows:i. Whether the Appellant was positively identified. ii. Whether the complainant sustained grievous harm. iii. Whether the charge sheet was defective. iv. Whether the sentence herein is excessive. On the issue of identification of the Appellant, the testimony of the complainant was corroborated by that of P4, James Mghenyi who was an eye witness. PW4 said the complainant was attacked by the Appellant and his brother. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19651/eng@2025-05-02 3

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24. On the issue as to whether the complainant sustained grievous harm, the evidence of PW2 was that the complainant sustained a compound fracture on the lower left limb classified as grievous harm. 25. The appellant contended the medical evidence contradicted the charge since the P3 form classified injuries as "harm" rather than "grievous harm": 26. However, PW3 (Dr. Mlamba) produced a P3 form showing the complainant suffered a compound fracture requiring metal implant surgery and one month hospitalization. 27. Section 234 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." 28. A compound fracture requiring surgical intervention and prolonged hospitalization clearly meets this threshold, regardless of how the P3 form was filled. The medical evidence overwhelmingly supports the charge. 29. The appellant argued the charge was defective under Section 214 Criminal Procedure Code because the medical evidence allegedly contradicted it. 30. However, the particulars clearly stated the offense (grievous harm) and the act causing it – a fractured left leg. 31. As held in Sigilani v Republic [2004] 2 KLR 480, a charge is defective only if it doesn't disclose an offense known in law or fails to give adequate particulars. Neither applies here. 32. The medical evidence actually corroborated rather than contradicted the charge. 33. On the issue of sentence, the trial court did not sentence the appellant to life imprisonment as provided but gave him 30 years imprisonment. 34. However, the trial court failed to consider mitigating factors such as the fact that the appellant was a first offender and his alleged role in the fight. 35. The trial court was obligated to consider the appellant's defense that he was trying to separate a fight and assist the complainant. 36. Comparable cases where 5 years was upheld for grievous harm suggest 30 years may be excessive for a first offender. 37. I dismiss the appeal on conviction. 38. I find that a sentence of 30 years is excessive for a first offender. 39. The Probation Officer to file a presentence report for resentencing. DATED, SIGNED AND DELIVERED THIS 2ND DAY OF MAY 2025 VIRTUALLY VIA MT ATVOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistants: Maina/Millicent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19651/eng@2025-05-02 4

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