Republic v Imong (Criminal Case E129 of 2025) [2026] KEMC 318 (KLR) (16 July 2026) (Judgment)

Republic v Imong (Criminal Case E129 of 2025) [2026] KEMC 318 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEMC 318 (KLR) Republic of Kenya In the Malaba Law Courts Criminal Case E129 of 2025 AZ Ogange, RM July 16, 2026 Between Republic Prosecutor and Joronimo Imong Accused Judgment Introduction and Evidence 1.The accused person took plea on 3rd March 2025 on the charge of the charge of assault causing actual bodily harm contrary to section 251 of the Penal Code. 2.The particulars are that the accused person on the 22nd day of February 2025 at Malaba township in Teso North sub-county within Busia county, willfully and unlawfully assaulted Sylvia Nekesa thereby occasioning her actual bodily harm. 3.The accused person was charged with a second count of malicious damage to property contrary to section 339 (1) of the Penal Code. 4.The particulars are that on the 22nd day of February 2025 at Malaba Township in Teso North Sub-County within Busia County willfully and unlawfully damaged one mobile phone make neon valued at Kshs. 11,000/= the property of Sylvia Nekesa. 5.The accused person pleaded not guilty to both counts and was admitted to Cash Bail of Kshs. 5,000/=. The matter was set down for hearing and the prosecution called a total of five witnesses. 6.PW1 was the complainant one Sylvia Nekesa who testified that on 22nd February 2025 her ex-husband the accused person went to pick their child but did not return her. This prompted her to call the wife of the accused person one Aurelia and she went to collect her child and went back home with her. At around 2100hours, the accused person entered their house without knocking and enquired why she had gone to collect the child. He started slapping her and hit her using fists on her back. She fell. The accused person bit her thrice on the back and punched her nose. There was one Florence who was present and who called her mother. That the accused person also damaged her phone. The accused person then left while insulting them She was treated for the injuries at Malaba Dispensary 7.On cross-examination she testified that the accused person beat and bit her. That they did not fight with the accused person’s wife. That he went to the accused person’s house at 1700hours and the accused person came to her house at 2100hours. 8.In re-examination she testified that the case was filed in court not to settle personal scored but to seek justice. 9.PW2 was one Nanteza Bridget who testified that on 22nd February 2025 she was at home when she heard noise of items falling and children crying in her neighbor’s house. She found the complainant being pulled by her husband and being assaulted using kicks and blows to her back. That the accused person started biting her and they started insulting each other. 10.On cross-examination she testified that she saw the accused person assault and bite the complainant. 11.There was no re-examination for this witness. 12.PW3 was one Juliet Otwane a clinical officer at Malaba Health Centre who testified that she examined a patient on 24th February 2025 who complained of headache, neck pain, scratch marks on neck shoulders, back, thighs and upper lip. She said that she had been assaulted at 2100hours on 22nd February 2025. She made a diagnosis of Soft Tissue Injury Secondary to Assault and administered medication. The scratch injuries had cleared and she concluded that the probable type of weapon was a blunt object namely kicks and blows. 13.On cross-examination she testified that the complainant was treated on 24th February 2025 despite being assaulted on 22nd February 2025. That she did not know who bit the complainant but she had scratch marks. 14.There was no re-examination for this witness. 15.PW4 was one Leah Akwenye who testified that on 22nd February 2025 she was at home when she heard children crying at her neighbor’s house and she found the accused person fighting with the complainant with the accused person using kicks and blows to assault the complainant. That he took the complainant’s phone threw it to the ground and broke it. That neighbors intervened and she went back to her house. That the accused person bit her back. That the complainant showed them the bite marks after the neighbors had left. 16.On cross-examination she testified that she did not ask the complainant what the cause of the fight was but she was later informed that they were fighting over a child. That he damaged the phone which was make neon ray. 17.There was no re-examination for this witness. 18.PW5 was the Investigating Officer one CPL Erick Omboga Nyaragi who testified on behalf of Sgt Charity Muturi about the incident of 22nd February 2025 where the complainant and the accused person disagreed over a child and at about 2100hours, the accused person went to the complainant’s house and assaulted the complainant using kicks and blows wherein she sustained injuries. She also damaged the complainant’s phone by throwing it to the ground. Neighbors intervened and stopped the fight and the matter was reported at Malaba Police Station. The accused person was subsequently arrested and charged with the offences before court. That he was not able to find the damaged phone. 19.On cross-examination he testified that they were not informed of any fight between the accused person’s wife and the complainant. 20.There was no re-examination for this witness and this marked close of the prosecution’s case. 21.Pursuant to a ruling delivered on 23rd February 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. 22.He elected to give sworn evidence and call three witnesses but during defense hearing he testified on his own behalf and called one Aurelia Akiteng as a witness. 23.He testified as DW1 and told the court that he did not assault the complainant but it is the complainant who went to pick their child and started fighting with his wife. A quarrel ensued, insults were hurled and the complainant fought his wife together with her mother. He was later called by the brother to the complainant to Alpriza where another fight ensued. 24.On cross-examination she testified that the complainant’s brother tried to beat him using a rungu. That they had a dispute over a child but he did not go to their home. That it is the complainant who bit his hand and was armed with a knife when she went to his home. That it was he who bought the neon phone for the complainant. 25.DW2 was one Aurelia Akiteng who testified that on 22nd February 2025 at 2100hours she with her husband when she heard noise and someone’s voice threatening to kill another. She saw the complainant with her mother and brother who were armed and ready for a fight. Sister to her husband, neighbors and the accused person’s mother came to the scene and tried to push the complainant out and who was injured in the process. 26.On cross-examination she testified that the accused person later told her that she went to the complainant’s house and after being called by the complainant’s brother but she was not there. 27.This marked close of the defence case and the matter was reserved for judgment. Analysis and Determination Count 1: Assault Causing Actual Bodily Harm 28.Section 251 of the Penal Code provides for the offence of assault causing actual bodily harm 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.” 29.From the evidence of on record, it is not in dispute that the accused person and the complainant were formerly husband and wife and that theirs has been a relationship marked by prior conflict, including incidents of violence as reflected on the record of 3rd March 2025. That background is relevant in placing the events of the material day in context. 30.The complainant and who testified as PW1 testified that on the night of 22nd February 2025, following a disagreement with her former husband concerning their child, the accused person went to her home where he assaulted her by slapping, punching, kicking and biting her on the back. 31.Her evidence was corroborated by PW2, an independent neighbor who responded after hearing a commotion. PW2 testified that she found the accused person pulling the complainant and assaulting her using kicks and blows. She further witnessed the accused bite the complainant on her back. PW4 another independent eyewitness, similarly testified that she was drawn to the scene by cries of the complainant’s child and found the accused person assaulting the complainant using kicks and blows. She too observed a bite mark on the complainant’s back. 32.The medical evidence equally corroborated the prosecution’s case. PW3, the clinical officer who examined the complainant, observed soft tissue injuries consistent with assault, including scratch marks and bite marks. She also noted that the complainant’s clothes had been torn, although she had changed before the examination. She concluded that the injuries were occasioned by assault. 33.PW5 the investigating officer, confirmed receiving the complaint, carrying out investigations and preferring the present charge after being satisfied that sufficient evidence existed. 34.In his defence, the accused denied assaulting the complainant and averred that the altercation was between the complainant and his current wife at his home. However, this defence was materially weakened by the evidence of DW2, his own wife, who admitted during cross-examination that the accused person had informed her that he had gone to the complainant’s house. This admission directly contradicted the accused person’s version that the incident occurred at his own home. Further, the prosecution evidence consistently placed the assault at the complainant’s residence and not at Alpriza area where the accused person alleged to have been lured by the complainant’s family which had planned an attack and which prompted him to run away. The contradictions between the accused’s testimony and that of his own witness render his defence implausible and an afterthought. 35.It is therefore the finding of the court that the evidence of the prosecution witnesses was credible, consistent and uncontroverted and that the prosecution proved its case against the accused person on the offence hereinabove. Malicious Damage to Property 36.Having considered the evidence before this court with respect to the charge of malicious damage to property, the prosecution led evidence to the effect that the complainant’s phone was damaged during the incident. However, no damaged phone was marked for identification or produced as an exhibit before the court. Equally no photographs or any other form of evidence was tendered to demonstrate the nature or extent of the alleged damage. In the absence of such evidence, the allegation that remains a mere assertion incapable of being proven. In so holding I am guided by the case of Timothy Mutuku Kitonyi v Republic [2021] eKLR the court analysed the ingredients of the offence of malicious damage to property as follows: -“ 37.Section 339(1) of the Penal Code states as follows:“Any person who willfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanor, and is liable, if no other punishment is provided, to imprisonment for five years.” 38.I agree with Ngenye Macharia, J’s finding in Wilson Gathungu Chuchu vs. Republic [2018] eKLR that under the above definition, the elements of the offence may be dissected as proof of ownership of the property; proof that the property was destroyed or damaged; proof that the destruction or damage was occasioned by the accused; and proof that the destruction was wilful and unlawful. 39.In Simon Kiama Ndiagui vs. Republic (2017) eKLR, Ngaah J. held that-“In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third that the destruction was willful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful. 40.As regards the first condition, in Simon Kiama Ndiangui vs.Republic (supra) the Learned Judge declined to acceded to the:-“suggestion in this provision that ownership of the destroyed property must be established for liability to attach. My take on this issue is that ownership of the property is a relevant but not the defining factor; it may be taken into account amongst other evidence that tends to establish that the offence was committed. It follows that failure to prove ownership is not fatal to the prosecution case and to this extent I agree with the learned counsel for the state.” 41.Similarly, in Republic vs. Jacob Mutuma & another (2018) eKLR, the rationale for the offence was explained in the following terms –“In my view, it is not difficult to see why the offence is not necessarily tied down to ownership of particular property. It is to prevent wanton destruction of property that may lead to lawlessness and people taking the law into their own hands.” 42.In this case the witnesses including DW2 testified that the Complainant had undertaken developments on the said land. There was evidence that the water pipes were destroyed on that day. Neither the Appellant nor DW2 lay any claims to ownership of the said pipes. Therefore, in light of the evidence on record, it could only be concluded that the pipes belonged to the Complainant.” 37.It is therefore the finding of the court that the prosecution’s evidence in this regard fell short of the required threshold of beyond reasonable doubt. Conclusion 38.The upshot of my findings therefore is that:-a.The accused person is convicted of the offences of assault occasioning actual bodily harm contrary to section 251 of the penal code under Section 215 of the Criminal Procedure Code andb.The accused person is acquitted on malicious damage to property contrary to section 339 (1) of the penal code under section 215 of the Criminal Procedure Code. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 16TH DAY OF JULY, 2026.A.Z. OGANGERESIDENT MAGISTRATEJoronimo Imong- The Accused PersonMr. Rotich Prosecution CounselCourt Assistant: Paul Otieno