https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10672

# REPUBLIC OF KENYA # IN THE HIGH COURT OF KENYA AT MACHAKOS # CRIMINAL APPEAL NO. E096 OF 2025 MARTIN MAINA MBUGUA ........................................APPELLANT -VERSUS REPUBLIC .............................................................RESPONDENT (Being an appeal on conviction and sentence in Chief Magistrate 's Court at Machakos in Criminal Case No. 6 of 2019 delivered on 27th May 2025) # **JUDGEMENT** 1. The Appellant Martin Maina Mbugua was charged with Grievous Harm contrary to Section 234 of the Penal Code. The particulars are that on the 29th July 2013 at Thome Bar in Katangi within Machakos County, he unlawfully did grievous harm to Simon Chokera Itirithia by hitting him on his jaw with a stool. 2. The Appellant pleaded not guilty and the matter was set down for hearing. The prosecution called 5 witnesses in support of its case. The Appellant gave sworn defence evidence and did not call any witness. The trial court after considering the evidence tendered before it, found that the prosecution proved its case beyond reasonable doubt and convicted the Appellant and sentenced him to serve six (6) years imprisonment on 10th June 2025. 3. Being dissatisfied by the trial court’s judgement and conviction, the Appellant filed the instant appeal before this Court dated 13th October 2025 raising the following grounds: 4. *THAT, the trial magistrate violated the appellant's right to fair trial under Article 50 of the Constitution when the trial proceeded without allowing the Appellant's witness to testify as required.* 5. *THAT, the learned magistrate erred in both point of law and in fact by failing to note the inconsistencies and contradiction hence created doubt in the prosecution's case.* 6. *THAT, the learned magistrate erred in law and in fact by dismissing the appellants' defence despite the same being cogent.* 7. *THAT, the learned magistrate erred in both point of law and fact by failing to note that the incident happened way back in September, 2013 restarted the case in 2019 when both the complainant and the Appellant were charged under the Police Disciplinary Law Act and the Appellant's salary for one (1) month was slashed and extra duties were added to both of them.* 8. *THAT, learned magistrate erred in law and in fact by finding that the prosecution had proved its case beyond reasonable doubt.* 9. The appeal was directed to be canvassed by way of written submissions. Both parties filed and exchanged their respective submissions which I have considered. **Prosecution’s Case** 1. **PW1-**the complainant Simon Chokera Hirithia testified that on 29/7/2013 him and APC Hilary Kipkulei went to eat in a hotel at Katangi market and while leaving the hotel, their colleague Martin Maina (Appellant) beckoned them and PW1 told his colleague Hilary that the Appellant could be drunk since he was standing outside the club but Hilary insisted that they should heed to his call. The Appellant and PW1 had a conversation in their tribe and PW1 suggested that the issue could be discussed elsewhere. PW1 bought the Appellant one cup of Keg and 2 cigarettes for himself then he left. PW1 realized that he had left Kshs.10.00 at the club and went back for it. As he was talking to the lady operating the club, he felt someone holding his shoulder from behind. He turned and saw it was the Appellant. The Appellant swept him upon which he fell, the Appellant then took a stool with the intent of hitting PW1 but PW1 blocked the stool with his hand but it still hit PW1 on the head and he lost consciousness. He however heard the lady attendant calling his boss who was a Senior Sergeant telling him that a fellow officer was unconscious at the club after being hit. The lady also indicated that she wanted to close business. 2. On cross examination, PW1 stated that he did not write 2 statements. He confirmed that the statement dated 17/9/2013 was not his, he did record a statement at the police station in 2013. 3. On re-examination PW1 stated that he did not buy the Appellant any other drink apart from the cup of Keg and the Appellant bought himself a Guinness. PW1 reported the incident at Katangi police post on 30/7/2013 in the morning. He denied reporting on 30/7/2013 at 1640hrs. He could not recall his OB number. He was assaulted on 29th. His jaw could not move but he could communicate. PW1 denied that he was pushed by the Appellant leading to his fall. He maintained that he was assaulted by the Appellant. He denied assaulting the Appellant. He denied wanting to hit /punch the Appellant on the nose. He denied that he wanted to assault the Appellant with a stool at Thome bar nor is it true that he slid and fell hurting himself in the process. He stated that the Appellant was among those who took him to the dispensary together with Senior Sergeant Maigwa. PW1 confirmed being charged with the offence of affray under the Kenya Police standing Orders after he left hospital and he was penalized by reduction of 2 days salary. He also confirmed that the Appellant too was charged in the same way but could tell whether he too was penalized. he stated that he did not appeal the decision of the Police Standing Orders because the decision was forwarded to the high authorities. 4. **PW2**- Beatrice Vilita Solo who was the bar attendant on the material day stated that she was in the bar called Thome Bar on 29th July, 2013 at about 11pm when two people came in and the Appellant started arguing with them and then took a stool and hit the complainant on the jaw leaving him lying on the floor unconscious as the Appellant left. There was a hole on his jaw but no bleeding. The Appellant later returned with his boss and they took the complainant (PW1) away. She said that she knew the Appellant as Maina as he was regular customer at the bar. She stated that the Appellant called his boss with whom they picked the complainant and took him to hospital. 5. **PW3-** Dr. Mathew Akama who was a surgeon based in Nairobi testified that he examined the complainant (PW1) and found that he had two fractures of the mandibles, one on the left and the other on the right which were inflicted by a blunt object. He also testified that the complainant had been seen at Kenyatta National Hospital and he later operated on him and he concluded that the complainant had suffered severe injuries which he classified as grievous harm. 6. **PW4** -Abieia Abdullahi Jarso who was investigating officer with IPOA gave evidence that he was assigned a case of assault involving the complainant and a colleague who were both stationed at Katangi police post. He traced the witnesses and recorded statements and learnt that the Appellant alleged that his boss had denied him an off and that the complainant played a role in the denial and that is why he attacked him in a bar called Thome where he hit him with a wooden stool and the complainant lost consciousness. He visited Katangi where he obtained certified copies of the OB entries and he produced its extract as an exhibit. He also tried to get the police file and the original P3 form from the OCS, Masii Police Station but the entire file could not be traced and he produced certified copies of the P3 form. He stated that the investigations in the matter were concluded in 2018. The conclusion of the investigations led to the arrest of the Appellant after a warrant of arrest was issued to be effected by Masii police station. 7. On cross examination, PW4 stated that the incident took place on 30th July 2013 at 1640hrs. That the complainant was assaulted and his jaw was broken in two pieces. He confirmed that there was no record to show that the complainant made a report to Katangi police post. 8. **PW5**- Moses Njoroge, a retired police officer who was the officer in charge at Katangi Police Post between 2005 to 2014. He confirmed in his evidence that the Appellant was his workmate and that on 29th July, 2013 he was asleep when he was woken up by some security personnel at a bar in the nearby market with information that his two officers had fought in the bar and upon rushing there, he found the complainant bleeding from the mouth and a waitress told him that he had fallen from a stool and that the Appellant took a stick and hit him on the head. He together with the Appellant then took the complainant to a nearby clinic where he got first aid and then he booked the incident at Katangi Police Post. He stated that the Appellant was later transferred from the station as the complainant took a sick leave for about 2 to 3 months. The officer who was with the complainant at the time of the incident, Hillary Kipkirui was said to have deserted the police service and could not be traced. 9. On cross examination, PW5 stated that the waitress told him the Appellant hit the complainant after he fell off the stool. He had been drinking. He stated that the bar maid was behind the counter and she did not know whether there was anything else that happened, He did not see the stick although it was just a light stick. **Defence Case** 1. The Appellant when placed on his defence gave sworn evidence but did not call any witness. He stated that he was a police officer and that the complainant was his colleague. They were together on the material date and had had some disagreements with the complainant about their leave off duties. He stated that at around 9.30pm he was called by his wife but since he had run out of airtime, he went out to buy the same from a kiosk and that is when he met the complainant and PC Kipyegon along the way. The complainant then started insulting him claiming that he was blocking his leave. He then got into a bar where the complainant pulled him and punched him on the mouth and took a high stool in the bar and attempted to hit him but moved and the complainant missed and fell on the stool and sustained injuries because he was drunk. He then went and called Snr Sgt. Muigua and with the assistance of another officer they took the complainant to Katangi Health Centre and that he was later transferred to Machakos Level 5 Hospital. He then went to Katangi Police Post where he also reported a case of assault on him in OB/7/07/2013 but which he did not follow up, not even the complainant’s issue. Later, their police seniors took internal police disciplinary measures against him and the complainant where they were both found to be on the wrong for fighting in a bar and were penalized with their salaries being cut and were given extra working hours. Six years later, he was served with a notice by IPOA to record a statement and later charged in court for the offence herein. 2. The Appellant stated that none of the prosecution witnesses spoke the truth, there was only the complainant, the waiter, Kipyegon and the Appellant in the bar at that time. The Appellant stated that he did not see the Investigating Officer give his evidence. He denied assaulting the complainant and maintained that the complainant fell from a stool. He prayed for time to produce documents in support of the police internal disciplinary procedures in court in support of his defence case which documents were admitted as his exhibits on 3/8/2023. **Analysis and Determination** 1. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of **Okeno – vs – Republic (1972) EA 32** where it was stated as follows: - ***“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.*** 1. Also, in **Peter’s vs Sunday Post (1958) E.A. 424** it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 2. In the case of **Republic Vs Edward Kirui (2014) eKLR**, the Court of Appeal quoted the Supreme Court of India Case of **Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688** where the case of **Bhagwan Singh Vs State of M. P. (2002)4 SCC 85** was cited as follows:- ***“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”*** 1. Having considered the trial court’s record, the grounds of appeal and the submissions of the parties, I will determine if the appeal is merited and in so doing I will re-analyse the evidence touching on the occurrence of the alleged offence and whether the charges and disciplinary proceedings for both the complainant and the Appellant under the Police Disciplinary Law Act affects the Charge against the Appellant herein. 2. On my re-analysing of the trial court’s record, I have established that the complainant (PW1), the bar lady (PW2), Hillary Kipkorir Kipkulei (Not called as a witness) and the Appellant (DW1) are the persons who were in the bar at the time of the alleged incident. 3. PW1 testified that on 29/7/2013 him and APC Hilary Kipkulei went to eat in a hotel at Katangi market and while leaving the hotel, their colleague Martin Maina (Appellant) beckoned them. He then told his colleague Hilary that the Appellant could be drunk since he was standing outside the club but Hilary insisted that they should heed to his call. PW1 bought the Appellant one cup of Keg. On re-examination PW1 stated that he did not buy the Appellant any other drink apart from the cup of Keg and the Appellant bought himself a Guinness. **At this point, there is no doubt that the Appellant was somehow intoxicated from the Keg and Guiness he had taken and probably he had been drinking earlier on which the trial court failed to realize**. 4. The evidence also shows that as PW1 was talking to the lady operating the club (PW2), he felt someone holding his shoulder from behind. He turned and saw it was the Appellant. The Appellant swept him upon which he fell, the Appellant then took a stool with the intent of hitting PW1 but PW1 blocked the stool with his hand but it still hit PW1 on the head and he lost consciousness. He however heard the lady bar attendant calling his boss who was a Senior Sergeant telling him that a fellow officer was unconscious at the club after being hit. The lady also indicated that she wanted to close business. This court is finding it heard to believe how PW1 was able hear PW2 talking to Snr. Sergeant about the incident and also saying she wanted to close her business while PW1 was unconscious. 5. Again, whereas PW1 stated that he heard the lady bar attendant calling his boss who was a Senior Sergeant telling him that a fellow officer was unconscious at the club after being hit, PW2 stated that the Appellant called his boss with whom they picked the complainant and took him to hospital. Further, PW5 stated that on 29th July, 2013 he was asleep when he was woken up by some security personnel at a bar in the nearby market with information that his two officers had fought in the bar. **This court finds that there is no clarity on who exactly informed Senior Sergeant of the incident.** 6. PW1 testified that he felt someone holding his shoulder from behind. He turned and saw it was the Appellant. The Appellant swept him upon which he fell, the Appellant then took a stool with the intent of hitting PW1 but PW1 blocked the stool with his hand but it still hit PW1 on the head and he lost consciousness. According to PW1, he was hit on the head and he lost control. He did not say he was hit on the jaw and he did not attempt to describe the purported stool and where exactly he was while talking to PW2. PW1 denied reporting the incident on 30/7/2013 at 1640hrs contrary to what is contained in PExt.3, OB. No.8/30/7/2013 at 1640hrs. 7. On the other hand, PW2 stated that she was in the bar called Thome Bar on 29th July, 2013 at about 11pm when two people came in and the Appellant started arguing with them and then he took a stool and hit the complainant on the jaw leaving him lying on the floor unconscious as the Appellant left. She stated that there was a hole on his jaw but no bleeding. She however did not describe the stool and say where she was within the bar that enabled her to clearly see what was happening, she did not say what side of the jaw had the alleged hole. To contradict PW2’s evidence, PW5 testified that upon rushing at the scene, he found the complainant bleeding from the mouth and a waitress told him that he had fallen from a stool and that the Appellant took a stick and hit him on the head. This court finds the evidence of PW2 to be doubtful and unbelievable because it is strange that a human jaw can have a hole without it bleeding. 8. PW3, the doctor stated that he examined the complainant (PW1) and found that he had two fractures of the mandibles, one on the left and the other on the right which were inflicted by a blunt object. This court is finding it difficult to figure out how and where the stool could have hit the complainant if it injured both his right and left side without affecting any of his teeth or injuring the complainant’s lips or nose. 9. **PW4** -Abdia Abdullahi Jarso who was Investigating Officer with IPOA stated that the incident took place on 30th July 2013 at 1640hrs. That the complainant was assaulted and his jaw was broken in two pieces. He confirmed that there was no record to show that the complainant made a report to Katangi police post. Again, from the evidence of this witness, it can only be deduced that he failed to conduct proper and thorough investigations. The Charge Sheet herein and all the other witnesses testified that the offence was committed on 29th July 2013 but according to him, the same took place on 30th July 2013 at 1640hrs. This witness too testified that the complainant was assaulted and his jaw was **broken in two pieces**. However, this is contrary to the Doctor’s testimony that he examined the complainant (PW1) and found that he had **two fractures of the mandibles, one on the left and the other on the right** which were inflicted by a blunt object. This witness also stated that he tried to get the police file and the original P3 form from the OCS, Masii Police Station but the entire file could not be traced, he did not state when he sought for the police file and what attempts he did to retrieve it. He cannot just allege that the police file was missing. 10. **DWI**-the Appellant denied assaulting the complainant and maintained that the complainant fell from a stool. It was his evidence that the complainant started insulting him claiming that he was blocking his leave. He then got into a bar where the complainant pulled him and punched him on the mouth and took a high stool in the bar and attempted to hit the Appellant but the Appellant moved and the complainant missed and fell on the stool and sustained injuries because he was drunk. He produced documents in support of the police internal disciplinary procedures that the complainant and him underwent in support of his defence case which documents were admitted as his exhibits on 3/8/2023. This court has perused through the defence documents and has confirmed that indeed internal Administration Police Service Standing Orders and Regulations 2012 disciplinary proceedings were conducted following the unfortunate incidence herein and there is no doubt that the issue under disciplinary hearing was a fight between the Appellant and the complainant likely to cause a breach of peace. Therefore, the issue at hand was not grievous harm. 11. This court takes notice that there can never be a fight between a person and himself/herself and tends to believe the Appellant’s version of what happened that on the material date, the Appellant had had some disagreements with the complainant about their leave off duties. That at around 9.30pm he was called by his wife but since he had run out of airtime, he went out to buy the same from a kiosk and that is when he met the complainant and PC Kipyegon along the way. The complainant then started insulting him claiming that he was blocking his leave. He then got into a bar where the complainant pulled him and punched him on the mouth and took a high stool in the bar and attempted to hit him but moved and the complainant missed and fell on the stool and sustained injuries because he was drunk. 12. This court finds the above re-evaluation of the evidence of PW1, PW2 and PW5 on how the incident occurred to be marred with inconsistencies and contradictions that go to the root of the Prosecution case and therefore this leaves a lot to be desired on what really transpired in as far as the offence herein is concerned. Moreover, the alleged stool and or its photograph was never produced in evidence to give a clear picture of how it could have caused the grievous harm on the complainant. This only leaves the Court imagining and guessing how the offence was committed and who really committed the same in the absence of cogent evidence. 13. Section 234 of the Penal Code states that;- **"*Any person who unlawfully does grievous ham to another is guilty of a felony and is liable*** ***to imprisonment for life."*** 1. It therefore follows from the said provision that for the said offence to be complete, the prosecution need establish beyond reasonable doubt that;- *a. The victim suffered grievous harm.* *b. The harm was caused unlawfully.* *c. The accused is the one who caused the grievous harm.* 1. As to what constitute grievous harm is defined under section 4 of the Penal Code which reads as follows: ***"Grievous harm means any harm which amounts to maim or dangerous harm or seriously******and permanently injures health, or which is likely so to injure health, or which extends to******the permanent disfigurement, or to any permanent or serious injury to any external or******internal organ, membrane or sense."*** 1. From the above provisions and considering my foregoing re-analysis of the evidence, it is this court’s position that although the complainant suffered grievous harm, the prosecution did not prove beyond reasonable doubt that the same was unlawfully caused by the Appellant herein. The gravity of injuries sustained by a complainant does not lessen the burden placed upon the prosecution to establish every ingredient of the offence beyond reasonable doubt. 2. The burden never shifts. The legal maxim remains: *'Ei incumbit probatio qui dicit, non qui negat*” (The burden of proof lies upon the person who alleges and not upon the person who denies.) If there exists any reasonable doubt regarding the circumstances under which the injuries were inflicted, the identity of the assailant, the reliability of witnesses, or the integrity of the investigation, such doubt must benefit the Appellant. 3. In other words, in criminal proceedings, the burden lies squarely upon the prosecution to establish the guilt of an accused person beyond reasonable doubt, and that the burden never shifts. This principle has long been settled. In **Butt v Republic [1957] EA 332** the Court underscored that the duty of proving the charge rests throughout upon the prosecution. Equally, the Court of Appeal in **Sawe v Republic [2003] KLR 364** cautioned that suspicion however strong, cannot form the basis of a conviction and that the prosecution must exclude any reasonable hypothesis consistent with innocence. The standard of proof was further explained in **Miller v Miller of Pensions [1947] 2 ALL ER 372** where Lord Denning observed that proof beyond a shadow of doubt, but it must be such as it leaves the court with no reasonable uncertainty regarding the guilt of the accused. Where such doubt persists, the accused is entitled to the benefit of that doubt, a position reiterated by the Court of Appeal in **Mary Wanjiku Gichira v Republic [1998] eKLR**. 4. I have read the trial court’s judgment and I tend to strongly disagree with the statement which reproduce hereunder that; “*this was a very unique case involving a police officer assaulting another police officer and leaving him with very serious injuries and that instead of the police taking a proper action as per investigations conducted, the matter is silently swept under the carpet under disguise of treating such a serious offence as a mere disciplinary matter. That it is noteworthy that the police file disappeared without trace within the police circles together with all the documents collected and the exhibits and no police officer ever came forward to take responsibility for the file lost or to explain to the court where it disappeared to and whether intern investigations were ever done to know who caused its disappearance. The clear summary of all this can be said that it was a deliberate attempt to avoid and circumvent justice so that the truth would not be known. There is no doubt therefore that the police did not want this matter brought in the open and that justifies the reason why IPOA had to come in to investigate the same where the police had hidden the evidence involving their own. This is a very unfortunate trend that should not be allowed to happen in a civilised society where the rule of law is supreme and action should always be taken against such officers aiding and abetting crime from within. That the evidence on record clearly shows as admitted by the accused that they were at the said bar on the date in question with the complainant. There is no doubt that the complainant was injured inside the bar and that a wooden stool was involved. There is also undisputed evidence that the complainant lost consciousness and was taken to hospital where there is further corroborated evidence that he suffered fractures of the jaw. The accused himself admitted that the complainant sustained injuries but claimed that the complainant fell on the stool as he aimed at him but fell. There was an eye witness as admitted by both the accused and the complainant and her evidence is very crucial as she was the only witness who was present and who was traced by IPOA after the police file was never availed to the investigating officer deliberately*”. 1. On the above trial court’s statement, this court finds that there was no evidence adduced by IPOA or prosecution to connect the Appellant to the disappearance of the police file, the exhibits and failure to charge him within reasonable time. Just like any other Kenyan citizen, the Appellant was entitled to be subjected to a lawful prosecution process if it warranted him to be charged and within reasonable time from the alleged date of the commission of the offence. The IPOA Investigating Officer did not tell the court when the police file disappeared and what attempts were done to trace it. The Investigating officer had a duty to record fresh witness statements as all the witnesses were available. 2. In addition, the IPOA investigating Officer did not take a step further and applied for Summons to attend court to be issued to the relevant police officer(s) to come forward to take responsibility for the file lost or to explain to the court where it disappeared to and whether intern investigations were ever done to know who caused its disappearance. This court is of the view that there was no plausible reason given by the trial court why it considered that there were officers aiding and abetting crime from within in as far as this case is concerned. The trial court was wrong to use this omission to convict the Appellant in the circumstances. 3. As regards whether this is a case of double jeopardy the Appellant having undergone through the internal Administration Police Service Standing Orders and Regulations 2012 disciplinary proceedings arising from the offence herein, I must say that Double Jeopardy arises when after a person is charged in a criminal case before a competent court or tribunal and is either acquitted or convicted then the same charges cannot be brought against him/her afresh. There is no evidence that the Appellant herein had prior to the case herein been charged before any other competent court or tribunal and was either convicted or acquitted. Police Orderly Room Proceedings cannot be said to be by a competent court or tribunal. Therefore, the doctrine of Double Jeopardy does not apply in the circumstances of this case. 4. On the whole, and upon re-evaluation of the evidence on record, and guided by the settled principle that it is far better that a guilty person be set at liberty than that an innocent person be wrongly convicted, this Court finds that the conviction herein to be unsafe and cannot be allowed to stand, it must be disturbed. The benefit of doubt arising therein must, as a matter of law, be resolved in favour of the Appellant. 5. Accordingly, I find merit in the appeal and the same is allowed. I quash the conviction and set aside the sentence imposed and substitute thereof an order acquitting the Appellant who is forthwith set at liberty unless otherwise lawfully held under a different warrant (s). It is so ordered. JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 7TH JULY 2026. **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 7TH JULY 2026 **In the presence of:** Appellant in person at Machakos GK Prison Ms. Agatha............. for Respondent Millygrace............ Court Assistant