Republic v Mohamed alias Usubi (Criminal Case E057 of 2026) [2026] KEMC 267 (KLR) (30 June 2026) (Judgment)

Republic v Mohamed alias Usubi (Criminal Case E057 of 2026) [2026] KEMC 267 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEMC 267 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E057 of 2026 FM Mulama, RM June 30, 2026 Between Republic Prosecution and Swabir Abdalla Mohamed alias Usubi Accused Judgment A. Brief Facts. 1)The accused is charged with grievous harm contrary to section 234 of the penal code. The particulars were that on 9/2/2026 at around 0600hours at KPA Jetty in Lamu county and unlawfully did grievous harm to Nasir Ali Mohamed. 2)The prosecution marshalled a total of 3 witnesses to prove the charge against the accused person whereas on the other hand the accused gave sworn evidence and never called any witness. 3)I have considered the testimonies of the accused and the state as well as the exhibits produced. Prosecution’s Case. 4)It is the prosecution’s case through the complainant that on 9/1/2026 at 6am while at work around Langoni hospital waiting and calling for passengers when the accused came while armed with a knife one hand and a panga on the other hand came to him and asked for Kshs.100/= but he could not since he did not have and the accused told him that he will face untold consequences and the complainant told him that he should proceed as he threatens and that is when the accused slapped him on the back using the panga and the complainant in self defence tried to pick a stone but he could not find any and the accused came again and stabbed the complainant on the left arm and the court was able to see the visible marks. 5)The complainant screamed in pain and the accused escaped and the complainant was rushed to King Fahad. The accused then followed him to the hospital and warned him not to step out of hospital because he will kill him and the accused had to be restrained by the security guards at the gate and this made the complainant to be held at the hospital until later in the day before he was released. 6)The injuries sustained by the complainant were confirmed by Pw 1 Dr. Kombo who assessed and classified the injuries as harm and that the probable weapon used was a sharp object corroborating what the complainant spoke about. The treatment notes and P3 were produced as exhibits. Defence Case 7)In defence the accused stated that on the material day he was demanding from the complainant what was rightfully his share after having worked and money paid to the complainant to share with him and in return a stone was thrown at him hitting his head and followed him with blows. 8)He was left with no other option but to defend himself as the complainant removed a knife to stab him and he ended up injuring his elbow with the knife that he intended to stab the him with. B. Issue For Determination. 9)Whether the prosecution have proved the charge of grievous harm against the accused person. C. Analysis And Determination. 10)For the accused to be convicted of the offence of doing grievous harm contrary to section 234 of The Penal Code, the prosecution has to prove each of the following essential ingredients beyond reasonable doubt;a.The victim sustained grievous harm.b.The harm was caused unlawfully.c.The accused caused or participated in causing the grievous harm. 11)In John Oketch Abongo vs Republic (2000) eKLR, the Court of Appeal held that:-“Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.” 12)Concerning the first element, bodily “harm” means any bodily hurt, disease or disorder whether permanent or temporary. The nature of grievous harm is defined by section 4 of The Penal Code 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. 13)The court in the case of Pius Mutua Mbuvi v Republic [2021] eKLR held that;“The specificities of "grievous harm" therefore are; (1) in the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, to amount to bodily harm, the injury to health need not be permanent (2) a mental injury may amount to grievous harm but not to bodily harm (3) the injury must be "of such a nature as to cause or be likely to cause" permanent injury to health.” 14)Pw 2 testified how the accused attacked him with a panga and a knife. It was his testimony that when he did not give the accused Kshs.100/= that he demanded, the accused informed him that he will suffer untold consequences and when dared to by the complainant that is when all hell broke lose and the accused attacked him with both the knife and the panga. 15)The accused in his defence stated that infact it is the complainant who injured himself in the melee when he removed a knife to stab him but the accused in defending himself made the complainant stab himself and prior to that he had thrown a stone at him that hit his head. However, no evidence as to the head injury was availed to court and was never mentioned to the complainant during cross examination. Similar reason applies to the issue of the complainant being armed with the knife at the time of the incident. The complainant was categorical that he did not fight back the accused person and the issue of self defence does not arise as he did not attack the accused. 16)I have reviewed the testimony on this issue and it is true that the issue of the complainant having been armed with a knife and having hit the accused with a stone was raised at the defence and the complainant did not have an opportunity to rebut the allegations. The accused had the opportunity to bring out these issues and cross examine the complainant on them but raising them at defence stage is a gimmick to steal a match against the complainant. I find and hold that the defence as raised by the accused for those reasons amount to a mere denial and the defence of self defence has no merit too. I thus dismiss his defence in toto. 17)From the medical record produced in court, especially the P3 it assessed the degree of harm as grevious harm. The accused did not challenge the finding by the doctor and as such I do find that from the evidence and the exhibits produced, the complainant indeed suffered grievous harm. 18)The second element is that the harm was unlawful. This means that the injury was caused without any lawful justification or excuse. From the evidence on record, the accused had no reason whatsoever to cause the injuries to the complainant. It is the complainant’s case that the accused demanded Kshs.100/= from him without any reason and when he declined that is when he was attacked. 19)The accused in defence stated that they had worked for a client and the complainant was paid and was to give the accused his share. As I have said these are issues raised in defence and not when the complainant testified in court and he was better placed to answer to the allegation and as already found by mere fact that the accused conveniently and/or deliberately ignored to ask those question it demonstrates that it never happened as the accused suggests and I thus dismiss that aspect of defence. 20)This therefore can only demonstrate that the accused had no reason whatsoever to attack the complainant. His quest to rely on self defence cannot hold any water for the same reasons that I have dismissed his defence. The harm was thus unlawful and I find and hold in similar terms. 21)The third element is whether the accused participated in causing the grievous harm. It is not in doubt that the accused was at the scene of the crime and engaged the complainant in a scuffle and when the complainant was at the dock he had no doubt that it is the accused who caused the injuries to him and as though that was not enough he followed him at the hospital and warned him not to step out of the hospital as he will kill him and the security guards had to restrain him. 22)The evidence places the accused at the scene and the complainant confirmed that it is the accused who inflicted the injuries and the accused did very little to challenge the evidence. I do therefore find that indeed it is the accused who caused the injuries to the complainant. 23)The 3 elements having been proved to the required standards and the defence having been dismissed, the case by the prosecution has been proved to the required standards. D. Conclusion And Disposition. 24)The upshot of the aforegoing is that the prosecution’s case is watertight and there exists no doubt that it is indeed the accused who did grievous harm to the complainant. 25)The net effect being that the prosecution proved its case against the accused person and consequently the accused is convicted for the offence of grievous harm contrary to section 234 of the Penal code under section 215 of the CPC. 26)Those shall be the orders of the court. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS 30THDAY OF JUNE 2026F.M. MULAMA.RESIDENT MAGISTRATEIn the presence of:Idris Tomno for DPP.Court Assistant:- Abuswaleh.Swabir Abdalla Mohamed alias Usubi.