The Offence of Wounding (Sec 237 Penal Code Chapter 63 Laws of Kenya)

It is slightly serious than actual bodily harm but slightly lower than causing grievous bodily harm[1]. 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[2].
Actus Reus

The Actus Reus for unlawful wounding is any break in the continuity of the skin[3]. Even a minor external cut which draws blood can be enough to meet the Actus Reus requirements, although internal bleeding does not count as a wound[4], neither do broken bones, where the skin is not broken[5]nor a rapture of internal blood vessels[6]  Thus the elements are;

·         Unlawful

·         Wounding

·         On another person

Mens Rea

The 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[7]. Only has to foresee some harm not a significant risk of harm[8].

Local decisions

In the decision of Charles Murathi Njeru v the Republic[9], 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 held in the case of Ibrahim Kanyau v The Republic[10]that the appellant a police corporal got into a fight with another man over 2 ladies, in the fight he drew his gun and shot the victim on the thigh, according to the evidence submitted judge  dismissed the appeal citing that it was not meritorious and thus he was rightly charged with the offence of wounding.

In the seminal case of Joseph Serem Keitany v The Republic[11],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 , 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 gun wen t off and injured one Nelson, it entered his pelvis and damaged his bladder. Appellant admitted that his conduct was unlawful.
Judge Onyancha further held that since wounding is a misdemeanor section 37 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[12].

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.

Bibliography

Books and Treatises

1.      Criminal Law, Law Africa Publishers (2010) Judge Musyoka

2.      Concise Oxford Dictionary, 8th Edition.

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

4.      Criminal Law, Card, Cross and Jones, Oxford Press.

Case law

Local jurisdiction

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

6.      Omar Kamanza v Republic [1999] eKLR

7.      Joseph Serem Keitany v The Republic Criminal Appeal 992 OF 2002 (2003)

8.      Ibrahim Kanyau v The Republic Criminal Appeal 52 of 2012, Embu H.C

9.      Charles Murathi Njeru v the Republic Criminal Appeal 845 of 2007 (2010 eKLR)

Foreign Jurisdiction

10.    Moriarty v Brookes (1834) 6 C&P 684

11.    JCC v Eisenhower (1984) 78 Cr App Rep 48

12.    R v Wood (1830) 1 Mood CC 278

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

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

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[1] Criminal Law ,Judge Musyoka Law Africa Publishers

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

[3] Moriarty v Brookes (1834) 6 C&P 684

[4] JCC v Eisenhower (1984) 78 Cr App Rep 48

[5] R v Wood (1830) 1 Mood CC 278

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

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

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

[9] Criminal Appeal 52 of 2012, Embu H.C

[10]Criminal Appeal 845 of 2007 (2010 eKLR)

[11]Criminal Appeal 992 OF 2002 (2003)

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