https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7564

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL APPEAL NO. E124 OF 2024** **EDWIN MAKUBA MUKOSHI …………………………..………… APPELLANT** **VERSUS** **REPUBLIC ……………………………………………….……………… RESPONDENT** **JUDGMENT** 1. This is an appeal from the conviction and sentence of the Appellant by the Chief Magistrate’s Court at Kakamega in Criminal Case No. 613 of 2020, for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code (Kenya). 2. It was alleged that on 27th April 2020 at Nambacha Trading Centre, Navakholo Sub-County, the Appellant unlawfully assaulted the complainant, Joseph Simiyu, thereby occasioning him actual bodily harm. 3. The prosecution called witnesses who testified that the Appellant, a police officer, assaulted the complainant in the course of enforcing COVID-19 directives at the market. PW1, PW3, and PW4 stated that they recognized the Appellant as the assailant, while PW2 testified that members of the public referred to him as “Makuba” during the incident. PW5 produced medical evidence confirming injuries consistent with assault. 4. The Appellant denied the offence, stating that he was on official duty dispersing a crowd and did not assault the complainant. He Appellant was convicted and sentenced to two (2) years’ probation prompting this appeal. 5. This being a first appeal, the Court is under a duty to reconsider the evidence, evaluate it independently, and draw its own conclusions. This principle was stated in: **Okeno v Republic [1972] EA 32 (CAK)** where it was held that; **‘The first appellate court must reconsider the evidence ,evaluate it itself and draw its own conclusions .** 1. This Court has therefore re-evaluated the entire record afresh. **Issues for Determination** 1. Whether the prosecution proved its case beyond reasonable doubt 2. Whether identification/recognition of the Appellant was safe 3. Whether the conviction was safe 4. Whether the sentence was proper **Analysis and determination.** 1. **Whether the prosecution proved its case beyond reasonable doubt** 2. The burden of proof in criminal cases rests entirely on the prosecution and does not shift to the accused person. in the case of **Woolmington v Director of Public Prosecutions [1935] AC 462 (HL)** where it was held that: **‘*throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…’*** 1. Theprosecution must prove therefore prove assault and actual bodily harm. Bodily harm was defined in **Rex v Donovan [1934] 2 KB 498 (CCA)** where it was held that: ***‘Bodily harm includes any hurt or injury calculated to interefere with the health or comfort of the complainant….and must be more than merely transient or trifling.’*** 1. The medical evidence (P3 form) confirmed injuries, and therefore satisfies this requirement. 2. **Whether identification/recognition of the Appellant was safe** 3. The evidence on record show that the complainant and some of the witnesses knew the Appellant prior to the incident. The case is therefore one of recognition. In **Anjononi & Others v Republic [1980] KLR 59 (CAK)** the court of Appeal held that: **‘recognition of an assailant is more satisfactory, more reliable and more assuring thasn identification of a stranger.’** 1. The court must however exercise caution as stated in **Wamunga v Republic [1989] KLR 424 (CAK)**as evidence of visual identification in criminal cases can bring about miscarriage of justice if not carefully tested. 2. In the current case the incident occurred in daylight, multiple witnesses recognized Appellant and recognition was not single-witness based.Further,PW2 testified that members of the public referred to the assailant as “Makuba” during the incident. 3. Having carefully evaluated the evidence, the court notes that several witnesses consistently placed the Appellant at the scene and identified him as the assailant. The court is satisfied that the conditions obtaining at the time were favorable for proper recognition of the Appellant. 4. **Whether the conviction was safe** 5. The court has considered the Appellant’s contention that there were inconsistencies in the prosecution case, however not all inconsistencies are fatal. In **Sawe v Republic [2003] KLR 364 (CAK)** ‘***suspicion, however strong, cannot provide the basis of guilt…and only material contradictions that go to the root of the case may vitiate a conviction.’*** 1. The court finds that the inconsistencies raised, including those relating to peripheral aspects of the incident, are minor and do not affect the substance of the prosecution case. The court has also considered the evidence advanced by the appellant. While the appellant denied the offence and stated that he was lawfully dispensing a crowd, the court finds that this defence does not raise reasonable doubt when weighed against the consistent and corroborated prosecution evidence. There is evidence that the Appellant assaulted the complainant without any provocation. His reliance on the statement recorded by the officer commanding police station does not assist the Appellant since the said officer never testified, the statement remains mere allegations and it has no probative value. 2. Accordingly, the court is satisfied that the conviction was safe. 3. **Whether the sentence was proper** 4. The appellant was sentenced to two(2) years’ probation. Sentencing is a matter within the discretion of the trial court and the appellate court will not ordinarily interfere unless it is shown that the sentence is illegal, excessive or based on wrong principles. 5. The court of Appeal in **Bernard Kimani Gacheru Versus Republic {2002}Eklr** reiterated that: ***‘It is now settled law that an appellate court will not interfere with the sentence unless it is evident that the trial court acted on a wrong principle, or overlooked some material factor, or the sentence is manifestly excessive in the circumstances of the case.’*** 1. The court has considered the circumstances of the case and notes that the sentence imposed was non-custodial and within the law. The court finds no basis to interfere with it. **Conclusion.** 1. Having considered all the issues, the court finds that the prosecution proved its case beyond reasonable doubt, the appellant was properly identified, the conviction was safe and that the sentence was appropriate.or inconsistencies that do not go to the root of the case do not vitiate a c **Orders** 1. The appeal against conviction is dismissed 2. Appeal against sentence is dismissed 3. Sentence of probation is affirmed. 4. Right of Appeal 30 days explained. **DATED SIGNED, and DELIVERED in OPEN COURT at KAKAMEGA THIS 6TH OF MAY, 2026.** **S.N. MBUNGI** **JUDGE** **In The Presence of;** CA: Angong’a/Velma Ms. Kiu for the ODPP presents online. Ms .Jerono for Mr. Nadwa for the Appellant present online.