R. v. Ramson Mbogo Crim. Rev. 26-M-71; 8/12/71; El-Kindy J.

  

R. v. Ramson Mbogo Crim. Rev. 26-M-71; 8/12/71; El-Kindy J.

The accused was charged with and convicted of grievous harm c/s 225 of the Penal Code. The evidence accepted by the Magistrate was that the accused had bitten off a piece of the complainant’s right ear. The medical report showed that the complainant sustained a cut in a one inch long on the right upper ear lobe and described the wound as amounting to “harm”.

            Held: (1) “The learned magistrate who had the advantage of looking at the relevant ear when the complainant gave evidence saw that in fact a part of the ear was cut off …. He was entitled to come to that conclusion as the duty of resolving facts in dispute is his, and the medical evidence is just there to aid him. There although the medical evidence was unclear, the trial magistrate was entitled to hold as he did and I see no reason to interfere within his reasonable finding of fact.” (2) “Section 5 of the Penal Code defines grievous harm. It reads as follow: - Grievous harm means any harm which amounts to a main or dangerous harm, or seriously or permanently injures health or which is likely to injure health, or which amounts to permanent disfigurement or to an permanent or serious injury to any external or internal organ, member or sense. After citing Regina v. Ali s/o Fakili 2 T.L.R. p. 44; R. v. Msungwe (1968) E.A. p. 203; Russel on Crime, 1958 Ed. 11^th Edition at

pp. 693 and 695 and R. v. Mipaa @ Masanja s/o Mananjimia (1968) H.C.D. No. 265). (3)”In this case the complainant lost a bit of his ear …. Unlike the phrase, ‘dangerous harm’ the phrase ‘permanent disfigurement’ is not defined in the Penal Code and it is left to the common sense of the courts to interpret it. In ordinary language the phrase means affectation of the body to the detriment of the person involved. A figure of a person includes his ear, and if such an organ is affected to the detriment of such a person it is, in my view, a permanent disfigurement, although it was not of a serious nature. In my view, the facts of this case do not fit into any other description except that of permanent disfigurement. I accordingly find no reason to differ with the finding of the learned trial magistrate on the matter.”