https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/371

Republic v Ali (Criminal Case E009 of 2026) [2026] KEMC 371 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEMC 371 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E009 of 2026 FM Mulama, RM July 28, 2026 Between Republic Prosecutor and Omar Adam Ali Accused Judgment A. Brief Facts. 1.In this case a total of 4 prosecution witnesses testified to prove the case of grevious harm against the accused person. 2.The case by the prosecution is that the accused on the 27th day of February 2026 at Patte area of Lamu East sub county he unlawfully assaulted one Samuel Arimba Odhiambo using a wooden stick thereby occasioning him grevious harm. 3.The accused denied the charge and upon being place on his defence gave sworn testimony and never called any witness. 4.I have considered the testimonies of the accused and the state as well as the exhibits produced. Prosecution’s Case. 5.It is the prosecution’s case through the complainant that on 27/2/2026 at around 9am he was supervising construction where the accused also works as a driver of a water bowser and when he went to his place of work he inspected the vehicle and noted it had parts that required replacement to which he took note for action and he left. 6.While supervising other sections, he received a call from Jacob (Pw 2) who informed him that the accused was siphoning fuel. He hastened to add it was an issue that had earlier involved the accused and a meeting over the same held and he was pardoned. So, he rushed to the scene and upon arrival, he asked the accused to open the door of the lorry but he refused. He then went to the passenger’s side and opened the door and therein he saw fuel that had been siphoned into a container and all this while according to him the accused pretended to be a long call. 7.He then took photos and left and while he was leaving the accused hanged up and followed him and demanded to have the photos deleted or else he will destroy the phone. He was not bothered by the demands and that is when the accused rushed back to his car and took out a wooden stick and came and violently attacked him by hitting him on the left side of his rib cage and took away his phone and he struggled to take back his phone and a scuffle ensued and in the process the phone fell down he picked it and went to report the matter to the police. 8.As he was leaving the accused continued to hit his car with stones and one of the fragments hit his forehead. After reporting the matter, he was referred to hospital for treatment where he was treated and discharged. 9.Pw 2 Jacobson Mwandogo an eye witness stated that on the material date and time and who operates the water pump saw Pw 1 conduct his usual site visits. It was his testimony that he saw the accused siphon fuel and he informed Pw 1 who came and when the accused was questioned why he was siphoning fuel, the accused removed a wooden stick from the lorry and used it to attack Pw 1 as he snatched his phone with a view of deleting the photos Pw 1 had taken of the siphoned fuel. He remembers seeing Pw 1 defending himself from the wooden stick attacks from the accused and soon afterwards Pw 1 left and later he was called to record his statement. 10.Pw 4 Athman Aboud Athman a registered medical officer vide registration number A12386 produced the P3 and the treatment notes and it was his testimony that the complainant was treated for soft tissue injuries and allowed to go home. It was his testimony that he was in general fair condition with no major concerns and he was basically given pain killers. Defence Case 11.In defence the accused stated that on the material day and time the complainant came with a probox and parked infront of his car and alighted with a 5 litre jerican that had diesel in it and at the time he was on a call but sitted on the driver’s seat. That the complainant then came and placed the jerican through the window of the passenger’s side. 12.It was his testimony that he then alighted and went to the passenger’s side and pulled Pw 1 down from the lorry and sought to know why he was doing that and that Pw 1 then slapped him and in pain he retaliated and returned the favour and that is when the complainant pushed him to the ground and sat on him and in the process and in defence grabbed a wooden stick and hit him on the head and that is when the complainant came off him and he left the scene. B. Issue for Determination. 13.Whether the prosecution have proved the charge of grievous harm against the accused person. C. Analysis and Determination. 14.For the accused to be convicted of the offence of doing grievous harm contrary to section 234 of The Penal Code, the prosecution has to prove each of the following essential ingredients beyond reasonable doubt;a.The victim sustained grievous harm.b.The harm was caused unlawfully.c.The accused caused or participated in causing the grievous harm. 15.In John Oketch Abongo vs Republic (2000) eKLR, the Court of Appeal held that:-“Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.” 16.The accused is charged with the offence of causing grievous harm. Section 234 of the Penal Code provides for the offence of grievous harm as follows:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life. 17.Section 4 of the Penal Code defines grievous harm in the following terms:“Grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal 18.From the totality of the evidence both from the prosecution and the defence there is consensus that the accused attacked the complainant with a wooden stick. The assault was witnessed by Jacobson Pw2. The complainant was thereafter treated for soft tissue injuries at Faza subcounty hospital. This therefore proves the assault of the complainant. 19.It is also important at this point to determine whether the assault was unlawful. It was the evidence of Pw 2 that when he saw the accused siphon fuel he informed Pw 1 and who immediately came and found the accused with the siphoned fuel in the car and when he took photos of the same, the accused got agitated and demanded the photos to be deleted as he was so sure that they will be used as evidence against him but when the Pw 1 refused he took the phone by force after attacking Pw 1 with a wooden stick. 20.The accused in his defence gave a different account of events in a manner that seems he was also blaming the complainant but was clear that he attacked the complainant. I do not believe his account of events as his testimony was not corroborated and further he never raised the issues he raised in defence with the complainant when he testified as to how the incident occurred. The testimony by the pw 1 having been perfectly corroborated, I am convinced by his testimony and I dismiss the defence by the accused in so far as it tends to blame the complainant for his own injuries and/or that the complainant equally attacked the accused. In any event, the injuries he asserts were caused by the complainant were not proved as no medical evidence was produced to show that he was actually injured on the material day. I therefore find that the assault was unlawful. 21.The question that remains pending is whether the injuries amounted to grevious harm. Pw 4 a registered medical officer testified that the complainant was treated for soft tissue injuries and basically given pain killers and allowed to go home. 22.At the time of the examination the complainant was in fair general condition and the doctor never saw any major concerns. With this findings and observations, I am at a loss how the P3 assessed the degree of injury as grevious harm. Infact when cross examined by the accused who sort to know what he meant by grevious harm, it was his testimony that they are serious injuries. Upon further cross examination he stated that he saw some marks and tenderness on the complainant. 23.The medical officer in my view was not truthful and genuine and/or sincere with his assessment of the degree of injury. He cannot in court testify that the complainant suffered soft tissue injuries and observe the same in the treatment notes which are used to fill in the P3 form and then as he fills the P3 forms indicate that the injuries were grevious harm. This points to a possibility of interference of his assessment by factors only known to him. 24.As to what amounts to grievous harm was dealt with by the court in the case of Pius Mutua Mbuvi vs Republic (2021) eKLR cited with approval in the case of Oyugi vs Republic (Criminal Appeal E060 of 2024) [2026] KEHC 7656(KLR) (22 May 2026) (judgment) (Garsen) where it was held that;“the specifics of grievous harm therefore are; in the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, to amount to bodily harm, the injury to health need not be permanent, secondly, a mental injury may amount to grievous harm but not to bodily harm and lastly, the injury must be ‘of such nature as to cause or likely to cause permanent injury to health." 25.I have on my part examined the nature of injuries for which the complainant was treated for and I find that they were indeed soft tissue injuries. There is no evidence that the injuries are likely to cause the complainant any serious or permanent injury to his health or permanent disfigurement of any of his organs. 26.It is important to note that the doctor did not in any way explained why he departed from the treatment notes when assessing the degree of injury in the P3. I thus do not agree with his finding in the P3 that the injuries amounted to grevious harm. 27.Section 251 of the Penal Code established the offence of assault causing actual bodily harm. The section provides that:Any person who commits an assault causing actual bodily harm is guilty of a misdemeanor and liable to imprisonment for five years. 28.Section 2 of the Penal Code defines the term “harm” to mean –“any bodily hurt, disease or disorder whether permanent or temporary." 29.In view of the fact that the injuries occasioned to the complainant were not permanent, I find that the injuries amounted to bodily harm. Consequently, I find the offence committed by the accused to be assault causing actual bodily harm contrary to section 251 of the Penal Code. D. Conclusion and Disposition. 30.The upshot of the aforegoing is that the prosecution’s case is watertight and there exists no doubt that it is indeed the accused who did an unlawful harm to the complainant. 31.The net effect being that the prosecution proved the charge of assault causing actual bodily harm contrary to section 251 of the Penal Code and not the offence of grievous harm contrary to section 234 of the Penal code. 32.The accused is consequently convicted for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code under section 215 of the CPC. 33.Those shall be the orders of the court. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS..28TH…DAY OF …JULY…2026F.M. MULAMA.RESIDENT MAGISTRATEIn the presence of:Court Assistant:- AbuswalehIdris Tomno for DPP.Omar Adam Ali.