https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/137

Republic v Muasa (Criminal Case E805 of 2026) [2026] KEMC 137 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEMC 137 (KLR) Republic of Kenya In the Mombasa Law Courts Criminal Case E805 of 2026 JM Mwenda, RM June 22, 2026 Between Republic Prosecutor and Nichlous Muasa Accused Judgment A. Introduction. 1.The law is often called upon to examine events that occurred in a matter of moments but whose consequences linger long after the dust of the encounter has settled. In such cases, the court's task is neither to favor one narrative over another nor to decide matters on sympathy, but to carefully sift the evidence presented and determine whether the charge before it has been proved to the standard required by law. 2.I say so because in the present case, the court was presented with two irreconcilable narratives. Each party stood firmly upon his own version of events. The complainant portrayed herself as the victim of an unlawful assault, while the accused cast himself as the aggrieved party. The accounts travel in opposite directions and cannot both be true. The court was not a witness to the events of that day. It did not see the confrontation or observe the actions complained of. Yet, despite its absence from the scene, it is called upon to perform the difficult but indispensable task of discerning the truth from competing accounts. It therefore falls upon this court, guided only by the evidence and the law, to determine where the truth lies 3.The accused person herein is charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. 4.The particulars of the charge are that on the 12th day of March,2026 at about 1100 hours, at Mathare area within Changamwe Sub-County in Mombasa County, he unlawfully assaulted one Kasyoka Moki, thereby occasioning her actual bodily harm. 5.The accused was to appear before court on 18th May, 2026 for plea taking but failed to attend court, prompting the issuance of warrants of arrest. He was subsequently arrested and presented before court on 2nd June, 2026 when the charge was read to him. He pleaded not guilty and the matter proceeded to full hearing. The prosecution called five witnesses in support of its case while the accused gave sworn testimony in his defence and called no witnesses. B. Prosecution Case. 6.PW1, Joshua Nandwa, a Clinical Officer attached to Port Reitz Sub-County Hospital, testified that on 12th March, 2026 at approximately 4.34 pm, the complainant attended the hospital alleging that she had been assaulted by a person known to her. Upon examination, he noted tenderness on the complainant's right ear and complaints of headache. He observed no open wound or visible external injury. He formed the opinion that the injury was caused by a blunt object and assessed the degree of injury as harm. He produced the P3 form and treatment notes as exhibits. 7.During cross-examination, PW1 reiterated that the only physical finding was tenderness on the complainant's right ear. 8.PW2, Kasyoka Moki, the complainant, testified that on the material day at about 10.00 am the accused approached her and inquired about money he had contributed to a welfare group. She informed him that the group had resolved to refund his contribution and expel him from membership due to non-compliance with the group's rules. 9.According to her, the accused became agitated, head-butted her, struck her on the right ear with his fist and proceeded to assault her. She stated that when one Juma attempted to intervene, the accused locked him inside a house and returned to continue assaulting her. She further testified that the accused pushed her against a wall causing injury to her head. Her son later arrived and witnessed part of the incident. She reported the matter to Chaani Police Station and thereafter sought treatment at Port Reitz Hospital. 10.In cross-examination, she maintained that it was the accused who assaulted her and confirmed that although she did not bleed, she sustained injuries. 11.PW3, Sammy Moki, testified that on the material day he received a telephone call from a neighbour informing him that there was a person quarrelling with his mother. He rushed to the scene and found the accused holding the complainant and hitting her against a wall. Upon his arrival, the accused released the complainant and left. PW3 subsequently accompanied his mother to Chaani Police Station. 12.PW4, PC Cleophas Mwendwa, the Investigating Officer attached to Chaani Police Station, testified that the complainant reported that she had been assaulted by a member of their self-help group following a dispute over money. He booked the report, referred her for medical examination and later issued her with a P3 form. After conducting investigations, he caused the accused to be charged. 13.PW5, Juma Muthami, testified that on 12th March 2026 at about 10.00 am he encountered the accused holding the complainant by force. When he attempted to intervene, the accused pushed him aside and locked him in a room. He further testified that although he did not witness the commencement of the altercation, he saw the accused push the complainant against a wall. He positively identified the accused as the person involved in the incident. 14.At the close of the prosecution case, the court found that a prima facie case had been established and placed the accused on his defence. C. Defence Case. 15.The accused elected to give sworn testimony. He denied assaulting the complainant. His version was that he had merely gone to demand a refund of his money from the welfare group and that it was the complainant who assaulted him by grabbing him by the neck. He denied causing her any injury. D. Issues for Determination. 16.Having considered all the evidence, the court finds that the following issues arise for determination:a.Whether the complainant sustained actual bodily harm.b.Whether it was the accused who unlawfully assaulted the complainant.c.Whether the prosecution proved its case beyond reasonable doubt. E. Analysis. 17.There is no dispute that an altercation occurred between the complainant and the accused on the material day. The accused himself admits that he met the complainant while seeking a refund of his money from the welfare group. The point of divergence concerns who assaulted whom. 18.On the first issue, the evidence of PW1 establishes that the complainant sustained tenderness on her right ear accompanied by complaints of pain and headache. The Clinical Officer assessed the injuries as amounting to harm. The law does not require grievous or visible injuries for an offence under section 251 of the Penal Code to be established. Pain and tenderness resulting from an unlawful assault are sufficient to constitute actual bodily harm. The court therefore finds that the complainant sustained bodily harm. 19.The next question is whether the accused was responsible for those injuries. The complainant gave a detailed account of the assault and identified the accused as the perpetrator. The accused was not a stranger to her. Their evidence reveals that they had known each other through the welfare group for approximately two years. This was therefore a case of recognition rather than mere visual identification. 20.The complainant's testimony receives material corroboration from PW3 and PW5. PW3 found the accused holding the complainant and hitting her against a wall. PW5 similarly observed the accused forcefully holding the complainant and pushing her against a wall. Both witnesses independently placed the accused at the scene and described conduct consistent with an assault. 21.The defence amounted to a denial coupled with an allegation that the complainant assaulted the accused. Significantly, the accused did not report any injuries to the police, seek medical treatment, or produce any evidence supporting his allegation. His account remains uncorroborated. 22.The court has considered the fact that the medical evidence disclosed no visible injuries apart from tenderness. However, that circumstance does not negate the occurrence of an assault. The medical findings are consistent with the complainant's account that she was struck on the ear and pushed against a wall. Moreover, the evidence of PW3 and PW5 provides independent support to her testimony. 23.Having observed the demeanour of the witnesses and carefully weighed all the evidence, the court finds the prosecution witnesses truthful and consistent on the material aspects of the case. The defence does not raise any reasonable doubt. F. Conclusion. 24.The court is satisfied that the prosecution has proved beyond reasonable doubt that on 12th March 2026, the accused unlawfully assaulted the complainant and thereby occasioned her actual bodily harm. 25.Accordingly, the accused is found guilty of the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code and is convicted under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MOMBASA THIS DAY 22ND DAY OF JUNE, 2026.SIGNED BY/FOR:HON. JAMLICK MURIITHI MWENDAMOMBASA MAGISTRATE COURT