https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/537

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E244 OF 2025** **REPUBLIC…………………………………………………………………………………...DPP** **VERSUS** **PETER KHISA MASIKA……………………………………………..…ACCUSED PERSON** **JUDGMENT** 1. Peter Khisa Masika (“the Accused Person”) was on 08th October 2025 called upon to plead to a charge of grievous harm contrary to section 234 of the Penal Code, whose particulars were that: *On the 25th day of February 2024 at around 2000hrs at Muyekhe village, Sikusi Sub-location, Sikusi location, Bungoma Central Sub-County within Bungoma County, the Accused Person did grievous harm to Chrisostine Litukayi.* 1. The Accused Person denied the charge facing him, thereby necessitating the hearing of this case for the prosecution to prove their case against the Accused Person beyond reasonable doubt. 2. The evidence led by the prosecution and the defence before this court is summarized below. **EVIDENCE** **Prosecution’s Case** 1. **PW1 Chrisostine Litukayi** recalled that on 25th February at around 2000hrs while walking from Namilama headed to his home, he found a lorry parked along the road. He saw the Accused Person, Andrew, and two other people near the lorry. He could identify the Accused Person and Andrew, as they were brothers well known to him. 2. The Accused Person and Andrew questioned him why he never gives them work to ferry goods in their lorry. While still standing in front of the lorry, the Accused Person and Andrew boarded the lorry, then flashed its lights in his eyes. He complained about the lights then began crossing the road when the Accused Person alighted from the lorry and hit him on the head using a wheel spanner until he fell down. 3. He added that Benson Juma (PW2), who was coming from Chwele at the time of the incident the Accused Person at the scene and questioned the Accused Person about the incident. 4. He added that he sought treatment from Chwele Hospital, Lifecare Hospital, and Moi Teaching and Referral Hospital Eldoret (MTRH) for the injuries he sustained as a result of the incident. He also stated that after the Accused Person’s arrest, the Accused Person’s family promised to compensate him Kshs. 411,000/= for the injuries he sustained but failed to do so. 5. In cross-examination, he stated that this case was reported to the police station while he was still in hospital in Eldoret. He added that whoever hit him that day hit him from behind. He added that the degree of injury stated in his initial P3 form was erroneous, given the nature of the head injury he sustained as a result of the incident and the contents of his treatment notes from MTRH. 6. He reiterated in re-examination that he saw and spoke to the Accused Person and Andrew at the scene of the incident before the Accused Person assaulted him. 7. **PW2 Benson Juma** recalled that he was riding his motorbike headed home from Chwele on the date of the incident when he saw a stationary lorry along the road in Muyekhe area. He added that he saw the Accused Person hitting PW1 on the head using a metal. He screamed when PW1’s relatives responded to the scene since the scene was near PW1’s home. 8. He stated in cross-examination that the Accused Person hit PW1 on the head using a sizeable metal while PW1 was crossing the road. He further stated that he could clearly see the Accused Person and PW1 since his motorcycle’s lights were on at the time of the incident. 9. **PW3 Dr. Claudia Wafula Wenwa** of Bungoma County Referral Hospital (BCRH) recalled that the complainant was admitted at the facility for treatment while unconscious on 27th February 2024 after referral from Chwele Sub-County Hospital. 10. He added that the complainant’s injuries necessitated a CT scan, which was conducted at Lifecare Hospital. The CT scan revealed that the complainant had severe bleeding in the brain, thereby leading to the complainant’s referral to a neurosurgeon in MTRH for removal of the brain clot. 11. He produced the complainant’s medical report dated 25th September 2025 from BCRH as an exhibit. 12. **PW4 Dr. Irine Simiyu** of MTRH testified that he examined PW1 at the facility on 28th February 2024 when PW1 visited the facility with a history of having been assaulted on 25th February 2024 by a person well known to him. 13. She testified that the injuries sustained by PW1 on the date of the incident led to bleeding in PW1’s brain, which necessitated PW1’s skull operation and admission to the neuro ward and ICU. She assessed the injuries sustained by PW1 as grievous harm. 14. She produced PW1’s P3 form dated 30th October 2025, brain CT scan report dated 29th February 2024, and the discharge summary dated 19th March 2024 from MTRH as exhibits. 15. In cross-examination, she stated that PW1 told her that he had been assaulted by Peter Khisa. 16. **PW5 Bramwel Wafula** a Clinical Officer at Chwele Sub-County Hospital, testified that he examined PW1 on 15th January 2025 and filled his P3 form on the same date. He assessed the injuries sustained by PW1 as grievous harm. He produced PW1’s treatment notes from the facility and the P3 form dated 15th January 2025 as exhibits. 17. He added during cross-examination that PW1 told him that he had been assaulted by two individuals known to him after a social disagreement. He further stated that at the time he examined PW1, PW1’s head and scalp were normal. He clarified that based on the CT scan report and the medical report from MTRH, PW1 sustained a severe head injury. 18. He also clarified in re-examination that he assessed PW1’s degree of injury at the time of examination as harm since PW1 appeared normal at that time. He added that PW1’s further treatment at MTRH informed his opinion that PW1 sustained a severe head injury as a result of the incident. 19. **PW4 No. 241144 IP Everline Kemunto** of Chwele Police Station investigated this case. She clarified in cross-examination that the lorry lights briefly blinded PW1, but PW1 could easily identify his assailants since he had interacted with them briefly before the attack. She conceded that the P3 forms from Chwele Sub-County Hospital and MTRH had different degrees of harm regarding the injuries sustained by PW1 as a result of the incident. **Defence Case** 1. This court placed the Accused Person on his defence after the close of the prosecution’s case. The Accused Person elected to give sworn testimony. He did not call witnesses. 2. The Accused Person recalled that on 25th February 2024, at around 2200hrs in Chwele area, while offloading luggage from the lorry he drives, he heard someone screaming while crossing the road. He handed over the luggage he was offloading to his customer and left. 3. He also stated that PW1 was his cousin. He attributed the charges herein to family issues between him and PW1. 4. He admitted in cross-examination that a family gathering had been held at the complainant’s home, where it was resolved that he pays PW1 Kshs. 450,000/= after the OCS Chwele had directed them to settle this matter, given that PW1 had reported to the police station an assault case against him. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the evidence on record as well as the written submissions filed by the defence. It is this court’s humble view that the only issue for determination is whether the prosecution proved its case against the Accused Person beyond reasonable doubt. 2. Section 234 of the Penal Code defines the offence of grievous harm facing the Accused Person 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 Penal Code 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 **Kangogo v Republic (Criminal Appeal E030 of 2024) [2025] KEHC 5742 (KLR),** the court set out the ingredients of the offence of grievous harm that the prosecution is obligated to prove the offence herein beyond reasonable doubt as follows: - *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. 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. PW1 testified that the attack meted on him on the date of the incident caused him to sustain a head injury that caused him to lose consciousness, leading to his hospitalization at Chwele Sub-County Hospital, Bungoma County Referral Hospital, and later Moi Teaching and Referral Hospital, where he underwent a head operation for brain edema. 2. PW1’s treatment notes from Chwele Sub-County Hospital, Bungoma County Referral Hospital, Lifecare Hospital Bungoma, and Moi Teaching and Referral Hospital on record corroborated PW1’s oral testimony on the injuries he sustained and the treatment he sought after the incident. 3. This court has earlier in this judgment reproduced section 4 of the Penal Code, which defines grievous harm. The said definition of what constitutes grievous harm shows 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. This legal position can be gleaned from the Court of Appeal’s holding in **John Oketch Abongo v Republic [2000] eKLR**, where the court stated thus: *“…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. This begs the question whether the evidence led by the prosecution proved beyond reasonable doubt that the injuries sustained by PW1 on the date of the incident met any of the definitions of grievous harm in section 4 of the Penal Code. 2. The Accused Person’s counsel took issue with the difference in the assessment of the degree of injury in PW1’s P3 forms on record from Chwele Sub-County Hospital and MTRH. Counsel submitted that whereas the P3 form dated 15th January 2025 shows that the degree of injury was harm; PW1’s scalp was normal; no head injury indicated; age of injury was one year; and a wooden rod was the weapon used to inflict the injury, the P3 form dated 30th September 2025 from MTRH assessed the degree of PW1’s injury as grievous harm; indicated that PW1’s scalp had a swelling, and the weapon used as a metallic object; and did not indicate the age injury. 3. Given the differences in the contents of the P3 forms on record, the Accused Person’s counsel submitted that the said differences gave room for the possibility of the injuries sustained by the PW1 to have been caused by other intervening causes, and not the incident herein. 4. Whereas the Accused Person's counsel’s argument above may sound attractive on the face of it, it should be remembered that PW1’s P3 form from Chwele Sub-County Hospital, produced by PW5, was filled on 15th January 2025 after PW1 had been treated at the various facilities stated earlier. Therefore, at the time of PW1’s medical examination at Chwele Sub-County Hospital, almost a year after the incident, there is no way PW1 would have presented a swollen scalp. 5. On the degree of injury entered in the P3 form from Chwele Sub-County Hospital, PW5 admitted that due to pressure of work, he indicated the degree of injury sustained by PW1 as harm, but meant to indicate grievous harm given the severe head injury sustained by PW1. PW5 clarification on the degree of injury sustained by PW1 finds support from paragraph 26 of the said P3 form, which shows that the treatment notes from MTRH that PW1 presented to PW5 showed that PW1 had undergone craniotomy treatment at MTRH before the date of the examination. It goes without saying that an injury that causes one to undergo craniotomy cannot be assessed as harm by any stretch of imagination. 6. Be that as it may, the P3 forms on record cannot be read in isolation from the unimpeached PW1’s treatment notes on record. 7. The P3 form dated 30th September 2025 from MTRH, on the other hand, was filled based on the treatment PW1 received from the said facility after the incident herein. A reading of the said P3 form together with PW1’s treatment notes from MTRH leaves no doubt in this court’s mind that the P3 form from MTRH is a true reflection of the injuries PW1 sustained as a result of the incident herein. 8. On the differences in the P3 forms on the identity of the weapon used to inflict injuries on PW1, it is noteworthy that it is not in the province of medics to state the specific weapon used by an assailant to inflict an injury on a victim. The medics’ duty in such instances, given that they never witnessed the incident, is limited to giving an opinion whether the probable weapon used to inflict the injuries revealed during the medical examination was a sharp object or a blunt object. Therefore, the differences of opinion by the medics on the specific object used to inflict the injuries are not of any significance. Of importance is that the two P3 forms on record were in agreement that the injuries sustained by PW1 were probably inflicted by a blunt object. 9. Therefore, going by the analysis above, the defence counsel’s position that the injuries sustained by PW1 could probably have been caused by other intervening factors lacks any basis. It is against this backdrop that this court finds that the differences in the contents of the P3 forms herein do not cast any reasonable doubt on the injuries sustained by PW1 on the date of the incident. 10. The medical evidence on record proved beyond reasonable doubt that PW1 sustained brain edema as a result of the incident, and that the said injury caused PW1 to undergo treatment procedures, including craniotomy and evacuation. 11. Brain edema, in simple language, is brain damage. The brain is an organ. An injury that causes the brain to swell is a serious injury to an internal organ, which constitutes grievous harm within the meaning of section 4 of the Penal Code. 12. The reasons above incline this court to find and hold that the prosecution proved beyond reasonable doubt that the complainant sustained grievous harm injuries on the date of the incident. ***(b)* The harm was caused unlawfully** 1. This ingredient of the offence herein requires proof that the grievous harm injuries occasioned on the complainant were caused unlawfully. That is to say that the injuries occasioned on the complainant must have been occasioned without legal justification or excuse. 2. The law in this jurisdiction is that there are instances where an injury can be occasioned to a person lawfully. Such instances include cases where an injury is inflicted on another person by the assailant in self-defense, to protect another person from harm, to prevent the destruction of property, or to prevent a person from committing a felony. 3. The facts of this case are that PW1 was assaulted by his assailant after some brief non-violent exchange. PW1 was not posing any threat to his assailant or any other person at the time of the incident. The force used against the complainant by his assailant was unreasonable, unjustified, and not proportionate in the circumstances. 4. The only logical conclusion to be drawn is that the grievous harm inflicted on the complainant by his assailant on the date of the incident was unlawfully caused. ***(c)The Accused Persons caused or participated in causing the grievous harm*** 1. An analysis of whether the prosecution proved this ingredient of the offence beyond reasonable doubt will also include an analysis of the Accused Person’s defence. 2. PW1’s testimony regarding the identity of his assailant was that he met the Accused Person and three other people on the date of the incident along the road, standing in front of a lorry, when the Accused Person and his brother Andrew questioned him about why he never gives them work to ferry goods in their lorry. He added that the Accused Person and Andrew then boarded the lorry, flashed the lorry’s lights, then the Accused Person alighted and hit him with a wheel spanner on the head while he was crossing the road. He also stated that PW2 went to the scene and questioned the Accused Person why he had assaulted PW1. 3. PW2 sought to corroborate PW1’s testimony on the identity of PW1’s assailant by testifying that on the date of the incident, while riding his motorcycle, he saw the Accused Person hitting PW1 on the head using a metal. 4. The defence on their part disputed the Accused Person’s identification as the perpetrator of the offence herein by submitting that, given that the incident happened at night, the fact that PW1 was blinded by the lorry’s headlight, given that PW1 was hit from behind, and since PW1 never saw his assailant, there was a need for an identification parade to identify PW1’s assailant. 5. In **Faith Muthoni M’ngondu & 3 others v Republic [2018] eKLR**, the Court of Appeal, while addressing itself to the principles applicable where identification of a perpetrator is disputed, stated; *“The guiding principles that the learned Judges took into consideration when addressing the appellants’ challenges to their identification/recognition at the scene of the robbery are the same principles we are enjoined to apply in determining the same issue as now placed before us. These have now been crystallized in a long line of cases. See Cleophas Otieno Wamunga versus Republic [1989] KLR; Paul Etole & Another versus Republic [2001] eKLR; and Francis Kariuki Njuru & 7 Others versus Republic Criminal Appeal No. 6 of 2000 (UR). They may be summarized as follows:-* *(i)Evidence of visual identification in criminal cases can bring about miscarriage of justice. It is for this reason that a court is enjoined to examine such evidence carefully to minimize such danger.* *(ii)Whenever the case against the defendant depends wholly or to a great extent on the correctness of one or more identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of such identification/recognition.* *(iii)The court has an obligation to examine closely, the circumstances in which the identification by each witness come to be made.* *(iv)The court also had a duty to remind itself of any specific weaknesses which may have appeared in such identification evidence.* *(v)It is true that recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knew, the court should remind itself that mistakes in recognition of close relatives and friends are sometimes made.* *(vi)Evidence relating to identification has to be scrutinized carefully and should only be accepted upon if the court is satisfied that the identification was positive and free from any possibility of error.* *(vii)Among the factors surrounding evidence of identification/recognition that a court is required to inquire into is whether the witnesses gave either the description or the names of the attackers to either the police or persons who come to the scene of the attack soon after the attack and at the earliest opportunity”.(Emphasis added)* 1. The principles above can also be gleaned from **R –vs- Turnbull and others (1976) 3 All ER 549**, where Lord Widgery C.J. had this to say:- “First, wherever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and the actual appearance? …………………. Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”(Emphasis added) 1. This court has fully appreciated the principles of identification of a perpetrator set out in the authorities above. This court will now proceed to determine whether the evidence on record on the Accused Persons' identification passes the test in the authorities above. 2. On the circumstances under which the Accused Person’s recognition was made, this court agrees with the defence that the incident happened at night. However, PW1 stated that before the Accused Person attacked him, they engaged in some talk. It is also noteworthy that PW1 and the Accused Person are relatives. This means that they are familiar with each other’s voices. Therefore, these are people who could easily identify each other even in the darkness. 3. Further, PW2, who testified on the circumstances under which the incident occurred, stated that the light from his motorbike helped him to see the Accused Person hitting PW1. He added that he even stopped and questioned the Accused Person why he was assaulting PW1. 4. The Accused Person’s counsel sought to impeach PW2’s credibility by submitting that PW2 was not a credible witness whose testimony could be used to identify PW1’s assailant, given that there were material inconsistencies in his testimony on the sequence of events on the date of the incident. 5. This court has had the benefit of going through PW1’s and PW2’s testimonies on the sequence of events on the date of the incident. There are no material differences in those testimonies as submitted by the defence counsel. The differences in the two testimonies are minor, which can be attributed to the fallibility of human recollection. Such minor differences which do not go to the root of this case are inconsequential as was ably restated in **Gatwiri v Republic (Criminal Appeal E012 of 2025) [2026] KEHC 2069 (KLR),** thus: *“I do agree there are minor discrepancies in the witnesses' testimonies, but as was found in the case of Twehangane Alfred –vs- Uganda (2003) UGCA 6, Minor contradictions in the prosecution case which do not affect the main substance of the charge should be ignored unless they point to deliberate untruthfulness.”* 1. The foregoing shows that PW2 was a credible witness whose testimony can be relied upon by this court to corroborate PW1’s testimony on the identity of his assailant. 2. This court further notes that PW1 informed the police and the medics who attended to him after the incident that he had been assaulted by a person well known to me. 3. The importance of a complainant’s first to report to the police on the identity of his assailants was well explained in ***Maitanyi v Republic (1986) KLR 198***, where the Court of Appeal at page 201 held, *“The strange fact is that many witnesses do not properly identify another person even in daylight... It is at least essential to ascertain the nature of light available. What sort of light, its size and its position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are unknown because they were not inquired into.... See Wanjohi & Others -vs- Republic (1989) KLR 415.”…*“There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid or to the police……”(Emphasis added) 1. In **Tekerali s/o Korongozi & 4 Others v Rep (1952) 19 EACA 259**, the court stated thus on the importance of a complainant’s initial report about an incident: *“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.” (Emphasis added)* 1. Guided by the authorities above, and considering the evidence on record that PW1 gave his assailant’s identity to the police immediately after the incident, coupled with the testimony by PW2 and the fact that PW1 and the Accused Person are persons well known to each other, there can be no room for mistaken identity on PW1’s assailant. 2. The analysis above shows that, despite the incident herein having occurred at night, this was a clear case of recognition, which did not require an identification parade to identify PW1’s assailant as submitted by the Accused Person’s counsel. 3. In any event, the Accused Person admitted during his defence that a family meeting was held to resolve this matter, where it was resolved that the Accused Person pays PW1 Kshs. 450,000/= in settlement of this case. This court wonders why such a meeting was held and a compensation resolution passed if the Accused Person was not to blame for the injuries sustained by PW1 on the date of the incident. 4. It is evident that the Accused Person’s failure to abide by the family meeting’s compensation resolution must have informed the Accused Person’s arraignment almost one year after the incident. 5. The foregoing inclines this court to return a finding that the prosecution proved beyond reasonable doubt that the Accused Person caused the complainant grievous harm injuries on the date of the incident. **Accused Person’s Defence** 1. This court has considered the Accused Person’s defence during the analysis of whether the prosecution proved beyond reasonable doubt that the Accused Person was PW1’s assailant. The prosecution’s cogent evidence displaced the Accused Persson’s defence. 2. In the circumstances, the Accused Person’s defence is dismissed for being a mere denial which did not cast any reasonable doubt on the prosecution’s case. **DETERMINATION** 1. The upshot of the foregoing is that the Accused Person is convicted 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 24th day of June 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Maroro for ODPP Ms. Nekesa h/b for Mr. Kapten for the Accused Person C/A: Mr. Rioba