Isaack Muchiri Wanjohi v Republic  eKLR
Isaack Muchiri Wanjohi v Republic
High Court, at Nyeri March 17, 1993
Criminal Appeal No 15 of 1993
(From Original Conviction and Sentence in Criminal Case
No 312 of 1992 by Njuguna Kimani - RM)
Charge – substitution of – where its found that the facts of the major charge constitute a minor offence – whether accused should be convicted of the minor offence though not charged with it - where there are more than one accused persons – whether charge should be reduced for all accused – whether charge is capable of separation.
Evidence – strength of evidence – where complainant in assult case was intoxicated at the time of the offence - strength of the complainant’s evidence.
The appellant and two others were jointly charged with grievous harm contrary to section 234 of the Penal Code in that on 14.4.1990 at Othaya township jointly with others, did grievous harm to the complainant Lawrence Muchori Gicheru.
The complainant, the appellant, his co-accused and other people were drinking, and between 10 – 11 pm a scuffle ensued whereby complainant was pierced in the eye with an umbrella. According to complainant, it was appellant who had the umbrella and therefore pierced him with it. Accused was convicted, while the co-accused’s charge was reduced to assault.
The defence contented that the complainant was too drunk and therefore he was unable to identify who pierced him in the eye.
1. 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.
2. If the learned trial magistrate found that the facts of the major charge constituted a minor offence he ought to have reduced the graver charge for all the accused and not for some because if the charge is subtracted it follows that it is eliminated and obliterated altogether.
3. The violence alleged in the charge was the same as that alleged and proved against all accused persons and was not capable of separation.
All of them could either be found guilty of graver charge or the minor offence and not some to be indicated separately and selectively.
4. There was ample proof that the complainant had consumed a large quantity of beer and was hopelessly drunk at the time of the attack upon himself. He was not sure of the number of the persons who assaulted him and neither could he recall the weapons used to injure him.
Ali Mohammed Hassani Mapanda v Republic  EA 294
No statutes referred.