Republic v Haron Barasa Wanyonyi alias Baba Lao

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E332 OF 2025** **REPUBLIC……………………………………………………………………………………..DPP** **VERSUS** **HARON BARASA WANYONYI ALIAS BABA LAO……...……………... ACCUSED PERSON** **JUDGMENT** 1. Haron Barasa Wanyonyi alias Baba Lao (‘the Accused Person’) was arraigned on 27th March 2025 to plead to a charge of grievous harm contrary to section 234 of the Penal Code whose particulars were that on the 11th day of March,2025, at Ndengelwa village in Bungoma South Sub-County within Bungoma County, jointly with another not before court unlawfully did grievous harm to Dennis Lokorito Wafula. 2. The Accused Person pleaded not guilty to the charge facing him, prompting the prosecution to call six (6) witnesses to prove their case against the Accused Person beyond reasonable doubt. 3. The summary of the evidence led by the Prosecution and the Defence during the hearing of this matter is set out below. **Prosecution’s Case** 1. **PW1 Dennis Wafula Lukorito** testified that he is a bodaboda rider. He recalled that on 11th March 2025, he went to attend another bodaboda rider’s burial in Ndengelwa. 2. While at the funeral, he addressed the mourners. PW3 also addressed the mourners. He also saw Fred Juma, reportedly under the Accused Person’s instructions, snatching a microphone from Dan Mabuka. The Accused Person was also reportedly directing Fred Juma on whom to attack. 3. He then saw Fred Juma, the Accused Person, and other people advancing to where he was. They then told him: ‘Wewe si wa hapa Bungoma…’ and beat him using fists causing injuries to his mouth. He was rescued by other mourners when he went to report the incident at Ndengelwa Police Post. 4. He was treated at Bungoma County Referral Hospital, where his mouth was stitched. He added that the assault stained the blue-and-white jacket he wore that day with blood. 5. He stated in cross-examination that he did not have any differences with the Accused Person before the incident. He admitted to having served as the bodaboda riders' welfare chair under the Accused Person at some point. He added that this case was not actuated by his removal from bodaboda welfare chair duties. 6. He reiterated that the Accused Person and other people not before the court attacked him on the date of the incident without any lawful cause. He could not tell the sharp object the Accused Person used to injure his mouth. 7. **PW2 Kennedy Wekesa Juma** is a resident of Kabuchai and a bodaboda rider. His testimony was that on 11th March 2025, he went to attend another bodaboda rider’s burial in Ndengelwa, where he saw PW1 addressing the mourners and offering his condolences. 8. He added that the Accused Person attacked PW1 as PW1 went to take his seat after addressing the mourners, causing a cut on PW1’s mouth. 9. In cross-examination, he admitted that he did not state in his police statement that the Accused Person beat PW1. He could not tell the name of the bodaboda rider who was being buried on the date of the incident. 10. He further stated that he saw the Accused Person going to the funeral in a group of three people who included Jairus. He added that the Accused Person once assaulted him, causing him to lose three teeth. He denied testifying against the Accused Person, given their past differences. 11. He could not tell the object used by the Accused Person to injure PW1. He also stated that the Accused Person, not the complainant (PW1), was the one armed with a rungu on the date of the incident 12. **PW3 Stephen Okumu Sifuna** is a bodaboda rider. He recalled that on 13th March 2025 he went to attend a fellow bodaboda rider’s burial in Ndengelwa while in the company of PW1, PW2, and Dan Mabuka. 13. They arrived at the burial ceremony while politicians were making their speeches. He requested time for PW1 to address the mourners. This request was granted. PW1 and Dan thereafter addressed the mourners. He added that by the time PW1 and Dan were addressing the mourners, the Accused Person had left. 14. He further testified that while Dan was still addressing the mourners, he saw the Accused Person walking back to the burial ceremony while in the company of Jairus Simiyu, Fred Juma, and another person. He then saw Fred Juma snatching a microphone from Dan, while the Accused Person and another person went to attack PW1. The attack caused PW1 to sustain injuries to the mouth. 15. He escorted PW1 to the hospital for treatment, where PW1’s mouth was stitched. He also escorted PW1 to Ndengelwa Police Post to report the incident. He added that he recorded a video of the incident, which he handed over to PW5. 16. He added during cross-examination that the Accused Person and two other people attacked PW1 on the date of the incident using blows. He further stated that the video recording he handed over to this case’s investigating officer confirmed his funeral attendance. 17. He denied the Accused Person’s assertion that the charge herein was a trumped-up charge arising from bodaboda riders’ leadership wrangles. 18. **PW4 Dan Mabuka Lubusi** is the chair of Bungoma South bodaboda riders. His testimony was that on 11th March 2025 at around 1300hrs, he went to attend David’s burial when PW3 was invited to address the mourners as the chair of Khalaba bodaboda riders. PW3 thereafter invited PW1 to address the mourners, and PW1 invited him to address the mourners. 19. While he was addressing the mourners, Juma advanced to where he was and snatched him the microphone. He then saw the Accused Person and others advancing toward PW1. He could hear the Accused Person saying: ‘Nitakuua, nitakuua…’ He then saw the Accused Person, Jairus, Juma, and other people assaulting PW1. He also saw PW1 bleeding from the mouth as a result of the assault. 20. They withdrew from the scene and reported the incident at Ndengelwa Police Station, and thereafter escorted PW1 to Bungoma County Referral Hospital for medical attention. 21. In cross-examination, he maintained that PW1 was attacked on the date of the incident by a group of people, including the Accused Person. He added that the Accused Person attacked PW1 with a blunt object, which the Accused Person had. 22. He disputed the Accused Person’s allegations that the charges facing him were motivated by bodaboda riders' leadership wrangles. 23. **PW5 No. 74716 PC Geoffrey Ino** of Bungoma Police Station investigated this case. He recalled that on 11th March 2025 at around 1355hrs, while he was working at Ndengelwa Police Post, PW1 reported this case in the company of some of the prosecution witnesses. He saw PW1 bleeding from the mouth. He booked PW1’s report and referred him to the hospital for treatment. 24. He also issued PW1 with a P3 form, and the same was duly filled. He added that he recorded the witnesses' statements and preferred the charge herein against the Accused Person. 25. He further stated that the Accused Person fled after the incident, only to be arrested on 27th March 2025 within this court’s precincts after attending court in another case facing him. 26. He produced the photos given to him by PW1 as exhibits (Pexh. 3(a) & (b)). The photos showed the injuries sustained by PW1 and PW1’s blood-stained clothes. He also produced an exhibit memo dated 24th August 2025 (Pexh.5) showing the above photos’ chain of custody. 27. In cross-examination, he stated that the evidence he gathered during the investigations informed his decision to charge the Accused Person with the offence herein. He could not tell where the photos he received from PW1 had been taken. 28. He denied meeting the Accused Person in Ndengelwa to discuss this case. 29. **PW6 Elias Adoka** is a Clinical Officer at Bungoma County Referral Hospital. He testified that PW1 visited the facility on 11th March 2025, where he was treated for head pains, an injury on the upper lip, and pain in the jaw. He took the view that the injuries sustained by PW1 had been inflicted by both a blunt object and a sharp object. 30. He assessed the injuries sustained by PW1 as harm and filled PW1’s P3 form (Pexh.2). 31. He admitted in cross-examination that he did not treat PW1 but only filled PW1’s P3 form by relying on PW1’s treatment notes, history, and physically examining him. **Defence Case** 1. Upon the prosecution closing its case, this court found and held that the Accused Person had a case to answer. The Accused Person elected to give sworn testimony and called three witnesses. 2. The Accused Person (DW1)testified that on 11th March 2025 at around 1100hrs, he went to attend a funeral at Ndengelwa while in the company of five people. He further stated that he addressed the mourners and thereafter left at around noon to attend another funeral in Bumula. 3. He added that later in the evening, he was told that a fight broke out at Ndengelwa after he had left, leading to PW1 sustaining injuries. 4. He attributed the charge facing him to bodaboda riders’ leadership wrangles. He denied assaulting PW1. 5. His counsel also referred him to a 41-second video showing PW1 holding a stick while bleeding from the mouth. 6. In cross-examination, the prosecution referred him to another video, which was reportedly a longer video of what the defence had relied on, showing the Accused Person and a group of people attacking PW1. 7. The Accused Person admitted that he did not see PW1 attacking anyone in the videos played before this court. He admitted that the video played by the prosecution showed that PW1 was attacked by several people on the date of the incident, and that PW1 was leaning on the rungu/fimbo he had. 8. The prosecution produced the video as an exhibit (Pexh.3) per the provisions of section 212 of the Criminal Procedure Code. 9. **DW2 Robin Munika**, a bodaboda rider, recalled that on 11th March 2025, he accompanied their chair (Accused Person) and Josyline (DW3) to attend one of their colleague’s burial in Ndengelwa. They arrived at the funeral at around 1100hrs. 10. He further stated that they left the funeral after the Accused Person had addressed the mourners and proceeded to their office, only for the Accused Person to be arrested three months later over this offence. He reiterated that they left the funeral before the fight broke out. 11. He added that PW1 and the Accused Person were leading different bodaboda riders’ factions after PW1 left the Accused Person’s faction, on being accused of embezzling the riders’ funds. He blamed the charge facing the Accused Person on the bodaboda leadership wrangles between PW1 and the Accused Person. 12. **DW3 Josyline Simiyu Nakhumicha** introduced herself as the Bungoma CBD bodaboda’s welfare treasurer 13. She recalled that on the date of the incident, she accompanied the Accused Person to a funeral in Ndengelwa where the Accused Person addressed the mourners. She added that they left the funeral at 1300hrs after handing over their contributions to the deceased’s widow, and then proceeded to their office. 14. She also identified PW1 in the video played by the defence before this court. She pointed out PW1 in the video holding a rungu. 15. In cross-examination, she stated that she was the one who took the video played by the defence before this court using her mobile phone, and that she lost the said mobile phone. **Written Submissions** 1. The prosecution chose to rely on the evidence on record. The Defence indicated that they would file their written submissions, but as of 04th March 2026 at 0700hrs, they had not done so. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the evidence on record. It is this court’s humble view that the issues for determination are: 2. *Whether the electronic evidence on record is admissible* 3. *Whether the failure by the prosecution to produce the complainant’s treatment notes was fatal to the prosecution’s case* 4. *Whether the prosecution proved its case against the Accused Person beyond reasonable doubt* ***Whether the electronic evidence on record is admissible*** 1. The prosecution placed before this court photos (Pexh. 3 (a) & (b)) and a video (Pexh.4) in a bid to prove their case against the Accused Person beyond reasonable doubt. 2. The production and admissibility of photographic evidence is governed by section 78 of the Evidence Act, which provides thus: *(1) In criminal proceedings a certificate in the form in the First Schedule to this Act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film submitted to him, shall be admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein.* 1. Section 106B (2) of the Evidence Act, on the other hand, provides that electronic evidence, including video evidence, is only admissible if it is accompanied by a certificate that: *i.Identifies the electronic device involved;* *ii.Describes the manner in which the data was produced;* *iii.States that the device was operating properly; and* *iv.Is signed by a person occupying a responsible official position.* 1. The common thread running through the authorities above is that photographic evidence and video evidence in this jurisdiction are only admissible if such evidence is accompanied by a certificate under sections 78 and 106B of the Evidence Act. 2. Neither the prosecution nor the defence placed before this court the said certificates to authenticate the photos and videos they sought to rely on in support of their respective case. 3. Courts in this jurisdiction have rendered decisions on the consequences of the lack of a certificate under sections 78 and 106B of the Evidence Act on electronic evidence produced in a court. For instance, in **Erick Indimuli Siaya vs. Republic [2016] eKLR**, the court stated as follows on the said provisions: - *‘…In the instant case, unfortunately, the production of the photographs by PW6 was not accompanied by a certificate prepared by him pursuant to Section 78(1) of the Evidence Act. Furthermore, there was no evidence that PW6 was an appointed officer by the Director of Public Prosecutions specified under the said provision. In that respect, we hold that the photographs were not admissible in evidence and that it was an error on the part of the trial magistrate to admit them as evidence. A similar scenario was replicated in John Kibii Langat vs Republic [2005] eKLR in which a court of concurrent jurisdiction allowed the appeal for want of production of a certificate under Section 78 of the Evidence Act.’* 1. In this era of artificial intelligence (AI), this court does not need to belabor the importance of the authentication of photos and videos as prescribed by the law before the same are admitted as exhibits in a court of law. To this end, this court places reliance on **Mtere v Republic (Criminal Appeal E051 of 2024) [2025] KEHC 5144 (KLR) (Crim),** where Muteti J rendered himself thus on this issue: *‘On the failure to prepare a certificate and produce it in here with the provisions of section 78 and 106B of the Evidence Act. This court finds that the omission is fatal. The provisions of the law leave no discretion to the prosecutor or the investigator. It is trite law that where the electronic evidence is not accompanied by a certificate that evidence is not inadmissible. See George Gabriel Kiguru & Another v Republic [2022] eKLR.* *The Certificate speaks to the reliability, integrity and originality of the electronic evidence. In this era of digital manipulation through tampering with electronic evidence, courts must exercise great caution whenever the prosecution of any person is predicated upon electronic evidence without an accompanying certificate. A conviction obtained through such evidence cannot be sustained.* *This becomes even more critical in this era of electronic transformation with the use of artificial intelligence. Originality and authenticity of electronic documents become key concerns now more than ever before. The reception of the CCTV footage in this case was therefore improper and irregular without the necessary certificate.’* 1. Guided by the authorities above, this court is inclined to find that the photos and the video placed before this court without compliance with sections 78 and 106B of the Evidence Act are inadmissible; thus, the same will not be relied upon by this court in determining this case. ***Whether the failure by the prosecution to produce the complainant’s treatment notes was fatal to the prosecution’s case*** 1. A perusal of the court proceedings reveals that when PW6 testified before this court, he only produced the complainant’s P3 form (Pexh.2) as an exhibit. He thereafter marked PW1’s treatment notes from Bungoma County Referral Hospital for identification. This was for good measure since PW6 was not the maker of the said treatment notes. 2. This begs the question of whether documents marked for identification form part of the court’s record. This question was answered by the Court of Appeal in **Mwige v Kiguta & 2 others (Civil Appeal 140 of 2008) [2015] KECA 334 (KLR),** where the court held thus: *‘In the instant case, we are of the view that the failure or omission by the respondent to formally produce the documents marked for identification being MFI 1, MFI 2 and MFI 3 is fatal to the respondents’ case. The documents did not become exhibits before the trial court; they had simply been marked for identification and they have no evidential weight. The record shows that the trial court relied on the document “MFI 2” that was marked for identification in its analysis of the evidence and determination of the dispute before the court. We are persuaded by the dicta in the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144 that a document marked for identification is not part of the evidence that a trial court can use in making its decision.’* 1. The authority above leaves no doubt in this court’s mind that PW1’s treatment notes marked for identification by PW6 but not produced as an exhibit cannot be relied upon by this court in determining this case. 2. It is common knowledge that a P3 form is generally filled by medically practitioners upon examining a patient and after perusal of a patient’s initial treatment notes. This means that the contents of initial treatment notes largely support the contents of a P3 form. Therefore, the question which ought to be answered at this stage is whether the failure to produce the said treatment notes as an exhibit was fatal to the prosecution’s case. 3. When confronted with a situation where a complainant’s treatment notes were not produced to support the contents of a P3 form, Wananda J in **Kiptanui & another v Republic (Criminal Appeal E012 & E022 of 2024 (Consolidated)) [2025] KEHC 7200 (KLR),** stated thus: *‘The 1st Appellant’s Counsel contends that the P3 Form was filled 5 days after the alleged incident, and that although the minor was reported to have been treated at Chepkorio Health Centre on 13/7/2023, no treatment notes were produced. According to him, for the Court to be convinced that indeed the injuries alleged in the P3 Form were the same as those noted when he was first attended to at Chepkorio Health Centre 2 hours within the injury being sufferred, it was expected that the Court be provided with the treatment notes from Chepkorio Health Centre. He urged that the exclusion of such earlier medical reports could be by design and points towards deliberate untruth with a view to conceal what exactly happened on the material date. I am not persuaded by this line of argument since no contrary medical evidence was presented, and Counsel is also merely basing his submissions on speculation. In any event, the P3 Form clearly indicates that the injuries were approximately 126 hours (5 days and 6 hours).’* 1. The authority above reveals that even in the absence of initial treatment notes, a P3 form filled some days after the incident, in the absence of medical evidence to the contrary, is still admissible and good evidence on the injuries sustained by a complainant. 2. The P3 form (Pexh.2) on record was filled on 12th March 2025, barely 24 hours after the incident. There is no medical evidence on record to controvert the contents of the said P3 form. Therefore, guided by the holding in the Kiptanui case (supra), this court finds that the failure by the failure to produce PW1’s treatment notes was not fatal to the prosecution’s case. ***Whether the prosecution proved its case against the Accused Person beyond reasonable doubt*** 1. The Accused Person faces a charge of grievous harm contrary to section 234 of the Penal Code, which provides as follows: ‘Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life’ 1. **Section 4** **of the Act** defines **grievous harm** as; ‘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 organ, membrane or sense’. Further, the same section defines **maim** as ‘the destruction or permanent disabling of any external or internal organ, member or sense’. 1. In **Pius Mutua Mbuvi Vs Republic (2021) eKLR*,*** the court gave the ingredients that the prosecution is obligated to satisfy in proving the charge of grievous harm. These ingredients are: - *a) That the victim sustained grievous harm* *b) The accused caused or participated in causing the grievous harm* *c) The harm was caused unlawfully* 1. The above ingredients of the offence herein were restated in **Kangogo v Republic (Criminal Appeal E030 of 2024) [2025] KEHC 5742 (KLR).** 2. This court will now proceed to determine whether the prosecution proved beyond reasonable doubt the said ingredients of the offence herein sequentially. ***(a) The victim sustained grievous harm*** 1. The nature of grievous harm is defined by **section 4 ofThePenalCode** as 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 a permanent or serious injury to any external or internal organ, membrane or sense. 2. The definition of grievous harm above shows that the Penal Code adopted a disjunctive definition of grievous harm. That is to mean that where an injury meets any of the various definitions of grievous harm under section 4 of the Penal Code, such an injury will constitute an injury assessed as grievous harm. The position taken by this court is fortified by the Court of Appeal’s finding in **John Oketch Abongo v Republic [2000] eKLR**, where the court held as follows: *“…We are satisfied that the complainant's injury amounted to grievous harm as defined in the Penal Code. The definition contains several ingredients of what constitutes grievous harm. We are of the opinion that the presence of any one of these ingredients would suffice to disclose grievous harm. Here, we are satisfied that the complainant's injury did amount to dangerous or serious injury to health both of which are ingredients contained in the definition.”* 1. In this case, PW6, who examined PW1 on 12th March 2025, produced the P3 form (Pexh.2), which indicates that PW1 presented the following injuries on examination: occipital headache, painful upper right cheek, cut wound on the lip, and upper lip cut measuring 3 centimetres longitudinal. 2. Paragraph 30 of the said P3 form shows that PW1’s treatment involved stitching of the cut wound on his mouth. This court takes judicial notice of the fact that a stitched wound leaves behind a scar on healing. A scar causes permanent disfiguration of the skin. 3. Further, PW6 assessed the injuries sustained by PW1 as maim. There is no evidence on record to controvert PW6's assessment of the degree of the injuries sustained by PW1 4. Maim is within the definition of grievous harm set out in section 4 of the Penal Code. Permanent disfiguring of the skin also falls within the definition of grievous harm per section 4 of the Penal Code. 5. It is against this background that this court finds that the prosecution led sufficient evidence to prove that the assault occasioned on PW1 on the date of the incident resulted in grievous bodily harm within the meaning of section 4 ofthe Penal Code. ***(b) The Accused Person caused or participated in causing the grievous harm*** 1. This court will consider this ingredient of the offence alongside the Accused Person’s defence. 2. PW1 – PW4 testified that they attended a fellow bodaboda’s funeral in Ndengelwa only for Fred Juma, Jairus and the Accused Person assault PW1. 3. The Accused Person, DW2, and DW3 on the other hand testified that the fight at Ndengelwa took place when they had already left the funeral hence the Accused Person could not have assaulted PW1 as alleged. The Accused Person was basically relying on the defence of an alibi. 4. The prosecution witnesses admitted that the Accused Person and others left the funeral before PW1 and his team addressed the mourners. They added that the Accused Person and his team later went back to the funeral when PW1 and his team were addressing the mourners leading to the incident which led to PW1 sustaining the injuries herein. 5. The prosecution’s evidence that the Accused Person and his team went back to the funeral as PW1 and his team was addressing the mourners was not dislodged even after intense cross-examination by the Accused Person. 6. Further, it is noteworthy that immediately after the incident, PW1 proceeded to Ndengelwa Police Post, where he made a report at 1355hrs vide OB. No. 06/11/03/2025 to the effect that he had been attacked by the Accused Person, who had used a blunt object to cause an injury to his mouth. This can be gleaned from the crime and incident report attached to the P3 form herein. 7. The prompt reporting of the incident and PW1’s prompt identification of his assailant raises a rebuttable presumption that there was no room for PW1 to concoct the report to his advantage or fabricate a story on the identity of his assailant or frame up the Accused Person as was appreciated in **Tekerali s/o Korongozi & 4 Others vs. Rep (1952) 19 EACA 259**, where the court stated: *“Their importance [of the first report] can scarcely be exaggerated, for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [come] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.”* 1. In addition to the above, it should be remembered that the prosecution witnesses (PW1 – PW4) and the Accused Person are persons well known to each other. The incident occurred during the day, when visibility was clear. Therefore, there was no room for mistaken identity. 2. Nothing on record suggests that the bodaboda riders’ wrangles between the Accused Person’s bodaboda riders’ faction and PW1’s bodaboda riders’ faction informed the prosecution witnesses evidence that the Accused Person and others attacked PW1 on the date of the incident. 3. The long and short of the above is that the prosecution’s cogent evidence dislodged the Accused Person’s alibi. In the circumstances, the defence advanced by PW1 is a spurious alibi which this court hereby dismisses in its entirety. 4. It is given that none of the prosecution witnesses stated before this court that the Accused Person is the one who inflicted the blow that caused PW1 to sustain a cut wound on his mouth. The prosecution witnesses (PW1, PW3, and PW5) agreed that PW1 was attacked by several people, including the Accused Person, leading to PW1 sustaining the injuries assessed as maim. The said evidence was in line with the particulars of the charge that PW1 was attacked by the Accused Person and another person not before this court. 5. The above shows that the prosecution relied on the doctrine of common intention to charge the Accused Person with the offence herein. Section 21 of the Penal Code defines common intention as follows:- *“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purposes an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”.* 1. Section 21 of the Penal Code reproduced above was interpreted in this Court in **Dickson Mwangi Munene & Another v R, CR. NO. 314 OF 2011 [2014] eKLR**as follows: “… where there are two or more parties that intend to pursue or to further an unlawful object or a lawful object by unlawful means and so act or express themselves as to reveal such intention. It implies a pre-arranged plan. Although common intention can develop in the course of the commission of an offence … ” 1. In **R v Tabulayenka S/O Kirya, [1943] EACA 51,** cited in Dickson Mwangi Munene & another case (supra), it was held that: *“The common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.”* 1. Turning to the facts of this case, PW1 was attacked by the Accused Person and other people who inflicted injuries on him. The Accused Person did not dissociate himself from the group that attacked PW1 on the date of the incident. 2. It is against this backdrop that this court finds and holds that the doctrine of common intention is applicable in this case in identifying the Accused Person as the perpetrator of the offence herein. Accordingly, this court finds that the Accused Person and others not before this court inflicted grievous harm on PW1 as set out in the particulars of the offence herein. **(c)The harm was caused unlawfully** 1. This last ingredient of the offence herein required proof that the grievous harm sustained by PW1 was caused unlawfully. This means that the same was without legal justification or excuse. 2. An injury can be inflicted on a person lawfully where such an injury is inflicted by another person in self-defence, during the protection of another person from harm, or to prevent the destruction of property. 3. The circumstances of this case reveal that at the time the Accused Person and others attacked PW1, PW1 was not posing any danger to any person or property. The attack was simply actuated by the bodaboda riders’ leadership wrangles. 4. Given the reasons above, this court finds and holds that the grievous harm inflicted on PW1 by the Accused Person and another not before this court was unlawfully caused. **DETERMINATION** 1. The upshot of the foregoing is that this court convicts the Accused under section 215 of the Criminal Procedure Code of the offence of grievous harm contrary to section 234 of the Penal Code. 2. Judgment accordingly. **Judgment read, signed and delivered in open Court at Bungoma this 04th day of March 2026.** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Sang for ODPP Mr. Nakhurenya for the Accused Person (virtually) Accused Person C/A: Mr. Rioba