wounding

WOUNDINGQ U I N C Y K I P T O O

K A V O S A A S S AVAC Y R U S K Y E N G O

WA M B U I WA I R I M UM I R I A M M A I N A

It is slightly serious than actual bodily harm but slightly lower than causing grievous bodily harm. Most jurisdictions actually categorize wounding and Grievous bodily harm as the same but according to the Kenyan penal code at section 237 Any person who -(a) unlawfully wounds another; or (b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or taken by, any person, is guilty of a misdemeanour and is liable to imprisonment for five years.

Poisoning is beyond the scope of this paper; our focus is wounding. Wounding is an injury that takes the form of an incision or puncture which divides or pierces any exterior membrane of the body.Criminal Law ,Judge Musyoka Law Africa Publishers

Concise Oxford Dictionary, 8th Edition, : Omar Kamanza v Republic [1999] eKLR

ACTUS REUSThe Actus Reus for unlawful wounding is any break in the continuity of the skin. Even a minor external cut which draws blood can be enough to meet the Actus Reus requirements, although Moriarty v Brookes (1834) 6 C&P 684internal bleeding does not count as a wound, neither do broken bones, where the skin is not brokennor a rapture of internal blood vessels Thus the elements are;

Unlawful

Wounding

On another person

JCC v Eisenhower (1984) 78 Cr App Rep 48

R v Wood (1830) 1 Mood CC 278

C (a minor) v Eisenhower [1984] QB 331

MENS REAThe Mens Rea for this offence is Intention or Recklessness. The attacker only has to intend or foresee the risk of some bodily harm not necessarily wounding or to an extreme grievous bodily harm. Only has to foresee some harm not a significant risk of harm.

Criminal Law and Criminal Justice, N. Cross Sage Publications (2010)

R v. Mowatt [1968] 1 Q.B. 421 : (R v Brady [2007] Crim. LR 564)

LOCAL DECISIONSIn the decision of Charles Murathi Njeru v the Republic, Judge Ongudi held that a cut on the head and a bruise to the Peri –orbital region would constitute wounding and not attempted murder.

Judge Ouko in the case of Ibrahim Kanyau v The Republic where the appellant, a police corporal got into a fight with another man over 2 ladies and drew his gun and shot the victim on the thigh, according to the evidence submitted, the judge dismissed the appeal citing that it was not meritorious and thus he was rightly charged with the offence of wounding.

Criminal Appeal 52 of 2012, Embu H.C

Criminal Appeal 845 of 2007 (2010 eKLR)

CONT:In the seminal case of Joseph Serem Keitany v The Republic, a group of about five policemen were having drinks at a bar in high rise. After having drinks the appellant did not pay his bill. An argument ensued and they promised the lady to pay the next day. They left in a government car and one of the passengers, one Evans Orende shouted at the appellant that it was shameful to drink and not have money to pay. The appellant slapped Orende, Orende returned a punch. When the car stopped to alight a passenger, appellant jumped out and drew his gun and cocked it and removed the safety and pointed it towards Orende, the driver Sgt. Mecha intervened tried to disarm the appellant and the gun went off and injured one Nelson, it entered his pelvis and damaged his bladder. Criminal Appeal 992 OF 2002 (2003)

CONT:The Appellant admitted that his conduct was unlawful. Judge Onyancha further held that since wounding is a misdemeanor section 237 does not require express intent or malice it only requires the Actus Reus. Soon after the shooting the appellants and the witnesses ran away and left the victim to drive himself to hospital. Judge held that the drawing and cocking of the weapon and pointing it at a fellow officer amounted to criminal negligence or recklessness. Lord Onyancha dismissed the appeal and confirmed the conviction of unlawful wounding.

Appellate Judge Ole Keiwua (the late) alongside other lords held that when one unlawfully shoots another but doesn’t kill him this constitutes unlawful wounding which is contrary to the law.

Mohammed Wekesa Wanyonyi v The Republic Criminal Appeal no.53 of 1995 (C.A)

In Rahim Rajan v R [1958] the Court considered the definition of wounding and held that although the medical evidence was not clear on the nature of the injury sustained by the complainant, there was ample evidence to sustain a holding that there was a wound as the whole skin had been punctured or divided.

The offence of threatening to injure with intent to intimidate or annoy, created in section 237 of the penal code, was not established in Opar v Republic [1967]. The appellant stood by whilst another person, who was not before the court, made a hole in the outside wall of the complainant’s house and put two pieces of wood from

A bottle into the hole. The complainant took the act to be one of witchcraft. When the complainant remonstrated, the appellant tried to cut with a panga. He was convicted of threatening to injur contrary to the Ugandan equivalent of Section 237 of the Penal Code. On appeal, the conviction was quashed, on the grounds that the act of the complainant did not disclose the offence charged, but the lesser offence of common assault.