https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/402

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E136 OF 2025** **REPUBLIC VERSUS STEPHEN JUMA OBURA** **JUDGMENT** 1. The accused has been charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. Particulars are that on the 30th day of March 2025 at 1130hrs at Dandira village Bukhulungu Sublocation Nangosia Location in Samia Sub-County within Busia County, the accused willfully and unlawfully assaulted Josephine Wesonga, thereby occasioning her actual bodily harm 2. The accused denied the charge and the prosecution presented its evidence as follows: 3. PW1 Josephine Wesonga testified that the accused, who is his relative and with whom they reside in the same homestead, began quarrelling, with her brother in law Domiano. That she asked the accused to stop quarrelling, and when she intervened, that is when, using his fist, he hit her on her chin, causing a cut where she bled, staining her clothes. Accused then rushed into the house, took out a pistol and threatened to shoot her with it, causing her to flee and hide in her house. She reported the incident at Funyula Police Station, was treated, and treatment notes and P3 Forms were issued to her and duly filed. Police later raised the homestead in search for the Pistol but did not find it. The accused hit her intentionally and not accidentally. She denied that accused hit the said Domiano. 4. PW2 Mitchelle Nabwire, a house help in the complainant's homestead, stated that the accused was in an altercation with his father, Damiano and hit him by slapping him on his face. That the accused then entered the house and took out a panga, threatening to cut Domiano with it. The complainant intervened, asking the accused to stop the altercation, and that is when the accused, using his fist, hit the complainant on her chin. Accused then ran into the house, took out a pistol. Complainant ran and hid n her house. The following day, complainant was treated. Accused and Domiano have been having a long-standing dispute over land. it is not true that complainant went to attack accused and accused defended himself. Accused intentionally hit complainant that day. 5. PW3 Faith Obura , complainant’s grandchild, stated that on the material day accused arrived home to find Domiano and accused him of stealing from him. Accused then entered the house, came wielding a panga, asking Domiano to leave. Domiano refused to leave. Complainant intervened to warn accused to stop bothering them, and that’s when accused, using his fist, hit complainant on her chin. He then went back into the house and came back armed with a pistol, forcing complainant to hide. Accused and Domiano were engaged in a physical struggle. 6. PW4 Leonard Barasa Ahenda, a clinical officer, stated to have examined the complainant on 30/3/2025 at around 11.55 a.m., who reported being assaulted. On examination, she had a cut wound on her mouth and her right mid-arm was tender. All other parts of her body were normal. The probable type of weapon used was a blunt object, and he assessed the degree of injury as the same as harm. He produced the treatment notes and P3 Form, which he claimed to have filed as Pex no. 1 and 2, respectively. 7. PW5 94256CPL Peter Muge, the investigating officer stated that the report of assault was made by the complainant on 30/3/2025. The complainant presented herself at the station bleeding from a cut on her lower lip and alleged to have been assaulted by the accused herein. She also alleged to have been kicked in the stomach as well. she was advised to get treatment and later, was issued with a p3 Form which she returned duly signed. Complainant also reported accused a very violent person. On 10/4/2025, in the company of armed police officers, they went into the accused’s home, arrested the accused and escorted him to the police station. Domiano did not record his statement over the issue. They came heavily armed, as they had an intelligence report from the complainant that the accused had possession of a firearm, which they did not find at the time of arrest, upon extensive search. 8. At the close of the prosecution's case, the accused was found with a case to answer and placed on his defence. His evidence in defence was as follows: 9. DW1 Stephen Juma Obura admitted knowing complainant as his stepmother and that on the material day, he was locked in an argument with his uncle Domiano over taking care of their family land. They then got into a scuffle, and complainant moved in to separate them. She approached him from behind and grabbed him. To shield himself from attack, he pushed her away by hitting her with the back of his head, causing injury to her lower lip. Complainant reported the matter to the police and exaggerated that he was armed and dangerous. At the time of arrest, police came armed and in large numbers; they searched for the alleged pistol in Vail and took him into custody. He had no reason to intentionally hit the complainant. 10. DW2 Michael Wanyama Wandera testified as the owner of one of the seized motorcycles in possession of accused at the time of arrest namely KMDW 331Y. he presented the said documents of ownership as Dex no. 1 which is the logbook and stated that he had given accused the same for use. ***Analysis and Determination*** 1. Section 251 of the Penal Code requires proof of an assault occasioning actual bodily harm, and the appellate authorities have stated that the ingredients are assaulting the complainant and occasioning actual bodily harm. ***See Ndaa vs Republic [1985] KLR*** 2. The medical evidence here demonstrates actual bodily harm, while the eyewitness accounts consistently place the accused as the person who struck the complainant during the altercation. 3. I am satisfied that the prosecution witnesses were consistent on the material particulars. They all placed the accused at the centre of the confrontation, all described the complainant intervening to stop the quarrel, and all stated that the accused hit her on the chin or mouth area. The injuries noted by PW4 correspond with that version of events, and the prompt report to police further supports the complainant’s account. 4. The defence explanation is not incapable of belief, but it does not create reasonable doubt on the whole of the evidence. If the accused had merely pushed the complainant away accidentally, it would be difficult to explain the consistent evidence of a direct fist blow from multiple witnesses and the immediate presence of a cut wound to the mouth. The allegation that the accused was armed with a panga may not be essential to the charge, but it lends support to the prosecution narrative that the confrontation was violent and threatening. 5. While accused states in his submissions that the same was unintentional, I find that the prosecution has proved beyond reasonable doubt that the accused unlawfully assaulted the complainant and thereby occasioned her actual bodily harm. The defence has not sufficiently dislodged the prosecution case. 6. I therefore find the accused guilty and convict him of the said offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. He is hereby convicted of the said charge pursuant to section 215 of the Criminal Procedure Code. Dated, signed and delivered at Port Victoria this 22nd July 2026, in the presence of the accused, his advocate Mr Juma J.V, the Prosecutor Mr Githinji and Mr Masiga, the Court Assistant. **Hon. Anne Njeru** **SRM**