[2015] KEHC 2079 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 93 OF 2008

REPUBLIC ………………..………… APPLICANT

VERSUS

D M M………….……….……...... RESPONDENT

(Being an appeal from the conviction and acquittal of Hon. Richard Odenyo Senior Resident Magistrate delivered on 24/04/2008 in Mwingi Senior Resident Magistrate Criminal Case No. 101 of 2008)

************************************

(Before Hon. B. Thuranira Jaden J)

J U D G M E N T

1. The Appellant in this case is the State. The Respondent D M M, was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code.

The particulars of the offence were that on the 12th August 2007in Eastern Province assaulted one K M thereby occasioning him actual bodily harm.

2. When the Respondent was arraigned before the trial court, he pleaded not guilty. After a full trial, the trial court held that the prosecution had failed to prove their case. Consequently, the Respondent was acquitted.

3. The prosecution was aggrieved by the acquittal and appealed to this court on grounds that can be summarized as follows:-

(a) That the prosecution case was proved to the required standard.

(b) That the trial magistrate did not give any reasons or points for determination contrary to section 169 of the Criminal Procedure Code.

(c) That the trial magistrate considered extraneous matters which were not canvassed in the case.

(d) That the trial magistrate erred in holding that the prosecution case was riddled with inconsistencies and contradictions.

4. During the hearing of the appeal, the parties made oral submissions which I have duly considered.

5. This being a first appeal, this court is duty bound to re-evaluate the evidence and the record afresh and come to its own conclusions and inferences – See Okeno –vs- Republic (1972) EA 32.

6. The complainant, PW2 K M testified that he was a standard 6 pupil at [particulars withheld] Primary School. He narrated to the court how on the evening of the material day, he was at home with M M(PW3) when the Respondent who is an uncle to the complainant went to where the complainant was, held him by the neck and dragged him for five (5) metres, fell him down and stepped on his head and ribs then left. The complainant, PW4 A N M took the complainant to hospital and reported the matter to the police. The complainant was treated by a Clinical Officer, PW1 Fredrick Mutua who confirmed that the complainant had sustained injuries. The matter ended up in court.

7. In his defence, the Appellant gave unsworn evidence. The Appellant’s case was that he called the complainant to check on how he was doing in his school work as the Respondent had heard that the complainant was playing truant in school. The Respondent denied having assaulted the complainant and stated that the complainant resisted his intervention and started throwing words at him.

8. DW2 Musyimi Mutemi a teacher at the complainant’s school testified on the complainant’s truancy. DW2 further stated that he was aware of the complainant’s family problems.

9. The complainant’s evidence was that the Appellant assaulted him. The complainant in his evidence stated inter alia as follows:-

“Mcame and held me by the neck and dragged me for about 5 m then he sweeped (sic) my feet. I fell. He stepped on my head and ribs.Mthen went away.Mis sitting there (pointing at accused).”

10. PW3, a standard eight student and a family member who was at the scene testified, inter alia, as follows:-

“Accused then walked to where PW1 was. As PW1 made to greet accused, accused held him by the neck, kicked him till he fell down and then stepped on him in the ribs and head. Accused is my 1st cousin. I have no grudge against him.”

11. The evidence of PW2 and PW3 established without any contradiction that the Appellant assaulted the complainant (PW2). The medical report by the Clinical Officer (PW1) corroborated the evidence on the injuries sustained by the complainant. According to the Clinical Officer, the complainant had bruises on the right outer ear and multiple bruises on the chest.

12. The evidence by the complainant’s mother (PW4) reflected consistency between what the complainant told the mother soon after the assault and the complainant’s evidence in court. The mother (PW4) admitted the existence of a grudge between her and the parents of the Respondent which grudge she attributed to domestic quarrels. The mother (PW4) however denied the existence of a grudge between her and the Respondent.

13. The Respondent on the other hand did not deny having met the complainant (PW2) and M M (PW3) at the material time. However, the Respondent’s evidence that he held the complainant and inquired about his performance in school is not convincing. The injuries sustained by the complainant were real and corroborated by medical evidence. If the Respondent’s family had a dispute with the complainant’s family, it is noted that PW3 M M, who is an independent witness gave the same account of evidence as the complainant (PW2). The land dispute and the question of truancy ought to have been settled within the law. The evidence of DW2 was on truancy and the land dispute and is of no probative value on the question of assault.

14. Having re-evaluated the evidence on record, I am satisfied that the prosecution proved its case beyond reasonable doubts. I therefore set aside the order of acquittal and substitute the same with that of a conviction. Consequently, this court will proceed to deal with the issue of sentence under Section 354(3)(c) of the Criminal Procedure Code.

………………………….

B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 30th day of September 2015

……………………

JUDGE