https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/261

Republic v Chacha & 2 others (Criminal Case E122 of 2026) [2026] KEMC 261 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEMC 261 (KLR) Republic of Kenya In the Kehancha Law Courts Criminal Case E122 of 2026 JP Nandi, SPM July 7, 2026 Between Republic Prosecutor and Johnson Chacha 1st Accused Marwa Mwita 2nd Accused Joseph Muniko 3rd Accused Judgment 1.The accused persons have been charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars are that the accused on the 7th March, 2026 at around 1900 hours in Nyankongo village in Siabai Location, in Ntimaru Sub County within Migori County, with others not before court jointly assaulted Wambura Joseph Mwita using pangas and clubs thereby occasioning him actual bodily harm. The Prosecution Case 2.The prosecution called four witnesses namely:1)Wambura Joseph Mwita (complainant) (PW1)2)Tobias Rioba (PW2)3)No. Pc Jackson Nanok (PW3)4)Omahe James Zachary (clinical officer) (PW4) 3.The prosecution case was that PW1 on 7/3/2026 at 1900 hours he was at the home of Chacha Wambura and they went to the home of Mwita Nchagwa and entered into the sitting room. They found Murimi Machesi, Mugoni Chacha, John Kichwa and Mwita Nchagwa. After a few minutes Chacha Wambura left and the door was closed. PW1 said he attacked without any reason. He was hit on the forehead by Marwa Mwita and on the head using a rungu which had a nut. Murimi cut him on the left shoulder with a panga. Mugoni Chacha stabbed him with a knife on the neck below the left jaw and on the back. John Kichwa cut him on the left hand with a panga near the wrist. The attackers took his Kshs. 13,000/= which was in his right front trouser pocket. 4.PW1 continued to state that when he was attacked he lost consciousness. The owner of the home screamed and the attackers left. He was woken up by the witness and jumped into the bedroom for safety. He was woken by one Tobias. He was taken to Ntimaru Su County Hospital where he was treated vide treatment notes marked PMFI-1. 5.After treatment he went and reported the case at Ntimaru Police Station who issued him a P3 Form which was duly filled and marked as PMFI-2. PW1 identified Murimi MachesI as the third accused, Mwita Marwa as the 2nd accused and Chacha Mogani as the 1st accused. 6.PW2 evidence was that on 7/3/2026 he was at the home of Mwita Nchagwa around 7-8pm when he heard noise. He rushed to the house where the noise was emanating from and found the door locked from inside. He demanded for the door to be opened and it was opened. The complainant was in the bedroom while in the sitting room he found Mogani the 1st accused who had a knife, Marwa Mwita 2nd accused had a metal rod and Murimi the 3rd accused had a panga and Mwita Wanchagwa had a panga who is not in court. John Mwita was also present who had a rungu fixed a nails and Marwa had a nut but they are not in court. 7.PW2 told them not to kill the boy. He also heard Mwita’s wife one Marita saying do not kill Wambura. He talked to the complainant who opened the bedroom door. He was bleeding from the face as he was injured on the head. The complainant asked why he had been cut and 3rd accused said he not been cut yet. PW2 took complainant to Ntimaru Sub County Hospital where he was treated and reported the matter at Ntimaru Police Station. The accused persons were later arrested. 8.PW4 examined and treated the complainant. He said on examination on 8/3/2026 the complainant had a deep cut at the left shoulder, scalp, and neck and left upper limb. The deep cut wound at the shoulder was measured as indicated in the treatment notes. A soft tissue injuries diagnosis was made. He produced the treatment notes as exhibit-1 and P3 Form as exhibit-2 which he filled on 10/3/2026. The age of injuries was 2 days old caused by a sharp object. He classified the degree of injuries as harm. 9.PW3 investigated the case and charged the accused persons. The prosecution then closed its case. The Accused Persons Defence Case 10.DW1 Johnson Chacha the 1st accused gave unsworn defence and denied the charges. He said that on the material date he left work and went home. He then went to a ceremony in their village where people came and closed the door and others stood outside. They were attacked by people who armed with pangas. He does not know who cut the complainant. The attackers were disarmed and others ran away. The complainant remained behind and he was assaulted. DW1 told the people who came around to leave the complainant alone and DW1 escaped and went home. 11.DW2 Marwa Mwita the 2nd accused gave unsworn defence and denied the charges and said that on the material date he went to a ceremony at Mwita Nchagwa’s home. While celebrating and giving presents to the child people came closed the door. Mwita Nchagwa asked the people what is wrong. Chacha Wambura was with Joseph Mwita and others. Chacha Wambura tolfd Joseph to do what had brought them there. Chacha Wambura hit the bulb and there was darkness in the house. They started struggling to get out. He said he does not know how Joseph Mwita was cut. They opened the door and he went home. 12.In the morning he learnt that Joseph Mwita had been injured. DW2 went to the market where he was arrested by police and taken to the station where he found the complainant who alleged that they assaulted him. He was then charged with this offence. 13.DW3 Joseph Muniko the 3rd accused gave unsworn defence and denied the charges. His defence was that on the material date, he just come home from Mombasa. At 6:00pm he went to a ceremony and when he wanted to leave Joseph Wambura Mwita with his father Chacha Wambura came into the house while armed with pangas. Chacha Wambura said do what we came to do. At that time they were counting money. The owner of the house asked them what they had come to do at his home yet he had not invited them. 14.Wambura threw the table which damaged the television. He then raised up the panga which damaged the bulb. They started struggling to go out. They managed to go outside and went home. In the morning they went to the market where police came and arrested them and charged with this offence. The accused persons then closed their defence cases. The Law: 15.The offence of Assault Causing Actual Bodily Harm is created under Section 251 of the Penal Code as follows:“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years”. Determination: 16.The essential elements of the offence of assault causing actual bodily harm are;i.Assaulting the Complainant or Victimii.Occasioning actual bodily harmSee the case of Ndaa V Republic [1984] KLR 17.The Prosecution must, therefore, show that the assault has resulted in actual bodily harm. There must be an intention to assault (mens rea) and the assault must have taken place (actus resus). 18.The issue for determination from the evidence on record are as follows;1)Whether the Complainant sustained injuries amounting to harm2)Whether the said injuries if any were caused by Accused unlawfully3)Whether the Accused defence is reasonable 19.On the first issue it is not in dispute that the complainant was assaulted. The complainant’s evidence was that he was injured on the forehead, head, cut on left shoulder, on the neck below the left jaw, back, and cut on the left hand. This evidence was corroborated by the medical evidence which confirmed the injuries. The same were caused by a sharp object and the degree of injuries was classified as harm. I find that this issue has been proved to the required standards. 20.On the second and third issues the evidence of the complainant was that when he entered into the house, one Chacha Wambura left and the door was closed. He was then attacked without any reason. He said Marwa Mwita hit him on the forehead and head with a rungu which had a nut. Murimi cut him on the shoulder with a panga. Mugoni stabbed him with a knife on the neck and back. John Kichwa cut him on the left hand with a panga. The evidence of the complainant placed the accused at the scene which evidence was corroborated by the evidence of PW2 who upon demanding the door to be opened, it was indeed opened and he found the accused persons inside the said house and others who are not in court. The complainant was also inside the said house with injuries. 21.The accused persons did not challenge the evidence of the complainant and PW2 which evidence was direct evidence and consistent. The same points to the accused persons as the ones who attacked and unlawful injured the complainant. Their defence that they were attacked does not hold any water as none told the court where they were injured as a result of the alleged attack. The truth of the matter is that the accused persons are the ones who attacked and injured the complainant. The accused persons were positively identified by the complainant and PW2. I reject their defence which did not challenge the prosecution evidence on record which remains watertight. 22.In conclusion I find that the prosecution has been able to prove its case beyond any reasonable doubt and find the accused persons guilty as charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. In the end I hereby convict them under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 7TH DAY OF JULY, 2026.J.P. NANDISENIOR PRINCIPAL MAGISTRATEIn the presence of:Mr. Kuntai………… Prosecution CounselMr. Kigera/Enock………… Court AssistantAccused …………….. 1, 2 & 3PresentInterpretation ……… English/KiswahiliAccused Language … KiswahiliCourt: 14 days right of appeal explained.