https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8843

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E085 OF 2025** **ABDUL RAHIM YUSUF.…………………………………..……APPELLANT** **VERSUS** **REPUBLIC………………………………………………………RESPONDENT** *(Being an appeal against the original conviction and sentence delivered by Hon. Kahuya I. M (SPM) on 19th May 2025 at Kibera Chief Magistrate’s Court Criminal case no. E1780 of 2023 Republic vs Abdul Rahim Yusuf)* **JUDGEMENT** 1. The appellant was charged with assault causing actual bodily harm contrary to contrary to section 251 of the Penal Code. The particulars of the offence are that on the 13th Day of October at Mvuli apartments in Parklands within Nairobi County wilfully and unlawfully assaulted M.K.Y a juvenile aged 10 months thereby occasioning him actual bodily harm. He was placed on 2 years’ probation. 2. Being aggrieved, the appellant challenged his conviction and sentence. In his appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3. As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (**Okeno v Republic [1973] EA 32**). 4. The prosecution called four (4) witnesses in support of its case. PW2, Fosca Kimberly, the mother of the complainant, a child aged ten (10) months, testified that she had visited the appellant when she received a telephone call from a woman known as Anne alleging that the appellant had defrauded her of money. Upon confronting the appellant, an altercation arose. According to PW2, the appellant became enraged and assaulted her. Fearing for the safety of the child, she picked up the minor. The appellant allegedly grabbed the child and threw her onto the floor, causing her to lose consciousness. 5. PW2 further testified that as the altercation continued, she screamed for help, prompting the appellant to break a bottle and scratch her stomach. During the incident, the child regained consciousness and began crying, whereupon the appellant allegedly placed a pillow over the child and pressed it down using his leg, thereby suffocating her. PW2 raised further alarm, attracting the attention of neighbouring women who came to her rescue. The appellant was subsequently arrested by officers from Parklands Police Station. She added that the appellant had previously been violent towards her. 6. During cross-examination, PW2 acknowledged that she and the appellant had engaged in prior fights. She denied allegations that she was intoxicated on the material day or that the dispute arose after she discovered flirtatious messages on the appellant’s phone. She maintained that she had only seen a message from the DCI. She further stated that the child underwent scans at Mbagathi Hospital and Kenyatta National Hospital, which yielded differing findings. 7. Upon re-examination, PW2 stated that she had decided to end the cycle of violence in her relationship with the appellant and had taken the child for therapy in the previous year. 8. PW1, Dr. Kanjama of Mbagathi Hospital, testified that the minor was brought to hospital by her mother with a history of suffocation using a pillow. The history given indicated that the child had thereafter lost consciousness on three occasions and had experienced nose bleeding twice. Upon examination, no visible injuries were observed. During re-examination, he stated that, based on the history provided, there was a likelihood of internal injuries. 9. PW3, Dr Mulama, a Radiologist at Kenyatta National Hospital, produced the minor’s treatment records. He testified that the child was attended to on 6th October 2022 and that a CT scan was conducted on 10th October 2022. The history recorded indicated that the child had been assaulted and was experiencing vomiting. 10. PW4, CPL Wairimu, the investigating officer attached to Parklands Police Station, testified that PW2 reported that the appellant had assaulted the minor and narrated the circumstances surrounding the incident. After recording statements and conducting investigations, she preferred the present charge against the appellant. During cross-examination, she stated that she was unaware of allegations that PW2 had been intoxicated and had mishandled the child. 11. In his defence, DW1 testified that the case was fabricated as a consequence of the strained relationship between him and PW2. He stated that on the material day they collected the child from his mother’s residence, spent the night at a club, and returned home while still intoxicated. A quarrel subsequently arose, during which the child fell as they fought. He maintained that PW2 thereafter reported the matter to the police. He further testified that they had since reconciled, as evidenced by the birth of their third child the previous month, and alleged that PW2 was using the case to blackmail him. During cross-examination, he stated that he did not report the incident to the police because disagreements between couples were commonplace. 12. After considering the grounds of appeal, submissions thereon, and evidence adduced in the trial Court, I find that the main issue is whether the appellant was rightly convicted of the offence of assault causing actual bodily harm. 13. According to **Section 251 of the Penal Code: -** **“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”** 1. The essential elements of the offence of assault causing actual bodily harm are; 2. **Assaulting the complainant or victim** 3. **Occasioning actual bodily harm** 4. I have re-evaluated the evidence adduced by the prosecution witnesses. The evidence of PW2 was direct and detailed. She testified that during a domestic altercation, the appellant forcefully grabbed the minor, threw her onto the floor causing her to lose consciousness, and later placed a pillow over her face and pressed it down using his leg while the child was crying. Her account remained consistent on the material aspects of the incident despite extensive cross-examination. She had no apparent reason to falsely implicate the appellant in the assault of their child. 5. PW2’s evidence was corroborated by the medical evidence. PW1, a medical practitioner from Mbagathi Hospital, testified that the child was presented with a history of suffocation using a pillow and episodes of loss of consciousness and nose bleeding. Although no visible external injuries were observed, he opined that the history given pointed to the likelihood of internal injuries. The law does not require proof of visible injuries for a finding of actual bodily harm. It is sufficient if the evidence demonstrates bodily injury or interference with the health or comfort of the victim. 6. Further corroboration was provided by PW3, a radiologist from Kenyatta National Hospital, who produced treatment records showing that the minor had been examined and subjected to a CT scan following a reported assault. The recorded history indicated that the child had been vomiting after the incident, a factor consistent with the injuries described by PW2. 7. The defence advanced by the appellant was that the child accidentally fell during a quarrel between himself and PW2 and that the case was fabricated because of their strained relationship. The trial court considered that defence and rejected it. Upon my own evaluation of the record, I find that the defence amounted to a mere denial and did not sufficiently displace the cogent and consistent evidence presented by the prosecution witnesses. 8. Taken as a whole, the evidence established that the appellant unlawfully assaulted the minor and that the assault occasioned actual bodily harm. The prosecution discharged its burden of proof beyond reasonable doubt. I therefore find that the conviction entered by the trial court was safe, sound and supported by the evidence on record. There is consequently no basis for interfering with the finding of the trial court. 9. The appellant was sentenced to serve two years on probation. During sentencing, the court considered the appellant’s mitigation, the fact that he was a first offender and exercised discretion. The sentence imposed was also lawful and I see no reason to interfere. 10. The upshot of the above analysis is that the appeal is found to be lacking in merit and is dismissed. Orders accordingly. **Judgement dated and delivered virtually this 24th day of June 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Appellant Absent Ms. Otiya for the Respondent Karimi Court Assistant.