https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8710

Wairimu v Republic (Criminal Appeal 073 of 2025) [2026] KEHC 8710 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8710 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal 073 of 2025 HM Nyaga, J June 18, 2026 Between Ann Wairimu Appellant and Republic Respondent (An Appeal from the Judgment of the Senior Resident Magistrate's Court at Nkubu, Hon. Rose Ongira, delivered on 9th September 2025) Judgment Introduction 1.The Appellant, Ann Wairimu, was charged before the Senior Resident Magistrate's Court at Nkubu with the offence of Grievous Harm contrary to Section 234 of the Penal Code. 2.The accused denied the charges. 3.Upon full trial, she was convicted and sentenced to ten (10) years imprisonment on 9th September 2025. 4.Dissatisfied with the said judgment, conviction and sentence, the Appellant filed a Petition of Appeal dated 6th February 2026 and filed on 18th February 2026, raising five grounds of appeal namely;i.The learned magistrate erred the law and fact by finding the prosecution to have proved its case beyond reasonable doubt the evidence adduced.ii.The learned magistrate erred to consider that the accused lacked the physical ability or strength to commit the alleged offence as testified by the complainant.iii.The learned magistrate erred to properly analyse the credibility and possible bias or personal vendetta of the prosecution witness against the accused.iv.The learned magistrate erred to consider material contradiction between the testimony of PW1 and PW2 particularly regarding the injuries allegedly sustained and the absence of evidence of fracture.V.The learned magistrate erred by failing to consider evidence indicating that another person, namely mawira, and not the accused, assaulted the complainant. 5.The Appellant was represented by Mr. George Murimi Mugo of George Murimi Mugo & Company Advocates. The Respondent was represented by the Office of the Director of Public Prosecution. 6.The prosecution's case was that on the material date, the Appellant, with another person no before court, unlawfully assaulted the complainant at her homestead, thereby occasioning grievous bodily harm. 7.PW1 testified that he went to the Appellant's homestead at around 8:00 pm. He stated that upon his arrival, there was a commotion wherein the Appellant, who claimed that he owed her money for services rendered, began screaming for help. PW1 further testified that during the ensuing confrontation, a young man identified as Lewis Mawira, alleged to be the Appellant's grandson, emerged from the house and struck him with a rod on the head, and also struck him on the left hand and left leg. 8.PW1 was candid in his testimony that the Appellant did not have sufficient strength to have committed the acts of violence that he suffered. PW1 additionally stated in his testimony as captured at Page 18, paragraph 9 of the petition that it was one Mawira who had assaulted him, not the Appellant. 9.PW2 was the assistant chief. He received the report of the alleged assault. He did not witness the incident. 10.PW3, the investigating officer, narrated how he processed the complaint and had the appellant charged in court.PW4, a clinical officer, produced the medical records in respect to the alleged incident. 11.The Appellant, in her defence, denied the charge and testified that on the material night she had retired to bed early and was asleep when the alleged incident occurred. She further stated that she only learnt of the events the following morning when she went to the nearest market to buy sugar. This account remained uncontroverted by the prosecution. Analysis and Determination. 12.This being a first appeal, this Court is clothed with the power to re-evaluate, re-assess and re-analyse the evidence on the record and draw its own conclusions as to whether the findings made by the learned trial magistrate are to stand, providing reasons either way. In Okeno v Republic (1972) EA 32, it was held that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. " 13.The Appellant relies on the authority of Selle v Associated Motor Boat Company Limited [1968] EA 123, for the proposition that this Court must reconsider the evidence, evaluate it itself, and draw its own conclusions, making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses, and that this Court is not bound to follow the trial court's findings of fact if it appears that the trial court clearly failed on some point to take account of particular circumstances or probabilities materially affecting the evidence. Although the latter case was civil in nature the principles are basically the same. 14.The Appellant has raised five grounds of appeal. Grounds 1 has been argued separately, while Grounds 2, 3, 4 and 5 have been argued jointly. The Court will address them thematically. Material Inconsistencies in the Prosecution Evidence 15.The Appellant submits that the learned trial magistrate erred in failing to appreciate the material inconsistencies pervading the prosecution's case. These inconsistencies concerned:(i)the circumstances of the alleged assault;(ii)the cause of the altercation;(iii)the manner in which the injuries were inflicted; and(iv)the identity of the primary assailant. 16.This Court finds force in this submission. The evidence of PW1, the complainant himself, is particularly significant. PW1 visited the Appellant's homestead unannounced at night approximately 8:00 pm circumstances that are inherently suspicious and unexplained. More critically, PW1 identified Lewis Mawira, not the Appellant, as the person who struck him. This evidence, emanating from the complainant, fundamentally undermined the prosecution's case against the Appellant. 17.The Appellant correctly notes that the learned trial magistrate failed to address these inconsistencies in a manner consistent with the legal standards applicable to the assessment of evidence. A court that finds an accused guilty must satisfy itself that the prosecution evidence is reliable, consistent and credible. The inconsistencies in this case were material and went to the root of the charge. Identity of the Assailant and the Role of a Third Party 18.The evidence on record points to Lewis Mawira as the person who physically assaulted PW1. PW1 himself confirmed this. Lewis Mawira was never brought before court. The investigating officer told the court that the complainant was assaulted by two people, but he did not explain why he preferred charges against the appellant only. It is thus possible the actual perpetrator of the assault that caused the injuries may have been the third party who was never charged. 19.The out-patient record from Kanyakine sub-county Hospital which was tendered as an exhibit, indicates that the complainant gave history that he had been assaulted by one person known to him. The P3 form also produced as an exhibit, referred to one person known to the complainant. It is thus not clear how that history morphed to include a 2nd person. That contradiction has to be resolved in favour of the appellant. 20.In re-evaluating this evidence, this Court finds that the prosecution failed to discharge its burden of establishing that the Appellant was the person who inflicted the grievous harm suffered by PW1. The testimony of PW1 that it was Mawira who struck him with a metal rod is a matter that the lower court ought to have grappled with squarely, and its failure to do so constitutes a material error of both law and fact. Standard and Burden of Proof 21.The burden of proof in criminal proceedings rests on the prosecution throughout the trial and does not shift to the accused, pursuant to section 107(1) of the Evidence Act (Cap. 80, Laws of Kenya). The standard of proof is proof beyond reasonable doubt. 22.In Woolmington v Director of Public Prosecutions [1935] AC 485, the House of Lords established the foundational principle that the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. This principle was further expounded in Miller v Minister of Pensions [1947] 2 All ER 372, where it was held that the standard of proof beyond reasonable doubt does not mean absolute certainty, but proof that leaves no reasonable doubt in the mind of a reasonable jury or tribunal. 23.These principles were recently affirmed by the High Court of Kenya in Director of Public Prosecutions v Achweya alias Waitemba [2026] KEHC 739 (KLR), where this Court held that where evidence leaves a reasonable doubt as to the accused's participation in the unlawful act, that doubt must be resolved in favour of the accused. 24.In applying these principles to the instant case, this Court finds that the prosecution's evidence was insufficient to prove beyond reasonable doubt that the Appellant was the person who committed the offence of grievous harm against PW1. The evidence of PW1 himself implicating Lewis Mawira, the Appellant's uncontroverted defence that she was asleep at the time, the absence of any evidence of common intention, and the personal animus of PW2 against the Appellant collectively created a reasonable doubt that the trial court ought to have resolved in the Appellant's favour. 25.The ground of appeal that the learned magistrate erred in law and fact by finding that the prosecution had proved its case beyond reasonable doubt therefore succeeds. 26.Having re-evaluated, re-assessed and re-analysed the entire evidence on the record, this Court is satisfied that the prosecution failed to prove beyond reasonable doubt that the Appellant, Ann Wairimu, was the person who inflicted grievous bodily harm upon the complainant, PW1. The conviction entered by the Senior Resident Magistrate's Court at Nkubu was therefore against the weight of the evidence and cannot stand. 27.Accordingly, this Court makes the following orders:(i)The appeal is hereby allowed.(ii)The conviction and sentence of the Senior Resident Magistrate's Court at Nkubu dated 9th September 2025 are hereby quashed and set aside.(iii)The Appellant, Ann Wairimu, is found not guilty of the offence of Grievous Harm contrary to Section 234 of the Penal Code and is acquitted forthwith.(iv)The Appellant shall be released forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF JUNE 2026.H.M. NYAGAJUDGE