https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/248

Republic v Ochumbo (Criminal Case E230 of 2025) [2026] KEMC 248 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEMC 248 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E230 of 2025 AK Njeru, SRM June 29, 2026 Between Republic Prosecution and Silas Juma Ochumbo Accused Judgment 1.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 12th day of June 2025 at Bumenya village, Wakhungu Sublocation Odiado location in Samia Sub County within Busia County, accused willfully and unlawfully assaulted Sharon Pauline Ndeta thereby occasioning her actual bodily harm. 2.Accused denied the charge and the prosecution presented its evidence as follows: 3.PW1 Loise Barasa a clinical officer working at Port Victoria Sub County Hospital stated that she examined the complainant on 14th June 2025. The said complainant complained of chest pains, (lower)abdominal pains and right breast pain alleging to have been assaulted by her neighbor well known to her on 12th June 2025 at their village. Complainant was pregnant at the time. On examination, complainant had tenderness on her lower abdomen, right breast was reddish brown and warm on touch, she had pain on the posterior side of the neck and tenderness on her left index finger. She had been treated and ultrasound done showing the fetus to be 12 weeks, 5 days old and viable. She produced the complainant’s treatment book and P3form as Pex no. 1 and 2 respectively. The probable type of weapon used was blunt object and degree of injury was harm. The scan was done at Nangina Hospital. 4.PW2 Sharon Pauline Ndeta testified that on the 12/6/2025 at around 3.00pm she was at home when accused, her neighbor requested if they had water. He asked accused to wait until the pipes were repaired to access water but accused went to his home and returned with jerricans, entered their shamba and began fetching water inside the farm destroying maize crops in the process. Her husband emerged and asked accused to leave but instead, accused got angry and began assaulting her husband. She rushed to her husband’s rescue by stoning accused on his head. Accused turned to her and hit her with blows on her neck and chest. She was 3 months pregnant at the time. She fell to the ground and became unconscious. She later gained consciousness and sought treatment at Port Victoria Sub County Hospital where the treatment notes were filled. she later reported the matter at the police station and was issued with a P3 Form which was equally filled. she did not produce the ultra sound scan as her evidence. 5.PW3 Julius Kalusala stated that on 12/6/2025 he witnessed accused assault his wife, PW2 in his presence. The circumstances of the incident are that they had water pipes in his farm used to allow him and the neighbors access water. On the material day they were damaged. Accused insisted on accessing the water by damaging his crops in the farm and his wife went to stop him. He asked accused to stop fetching water but accused ignored him accused hit his wife on her chest and stomach injuring her yet she was pregnant. They reported the matter at Funyula Police station and later escorted PW2 to Nassi Hospital then Port Victoria Hospital. Accused is their immediate neighbor. 6.PW4 75208 CPL Peris Kurui testified as the investigating officer in the matter. she stated to have received the report on 12/6/2025 when complainant reported being assaulted. Complainant had been examined and treated at Nassi Hospital. Her report was that accused forcefully came into their farm and began fetching water against the wishes of the complainant. He then turned to the complainant and hit her on her right breast. She fell and was rushed to the hospital. On 13/6/2025, she was issued with a P3 Form which was later filled at Port Victoria Hospital. She arrested accused and charged him accordingly. Complainant reported being hit on her right breast and chest only. She did not report assault of any other part of her body. 7.At the close of the prosecutions case accused was found with a case to answer and placed on his defence. His evidence was as follows: 8.DW1 Silas Juma Ochimbo in his sworn testimony stated to understand the charges he was facing and acknowledged the complainant as his neighbor. On 12/6/2025, he arrived home from the farm and decided to head to fetch water using his jerricans at the borehole along the complainant’s home. He then stopped along the way and that is when PW3 confronted him why he was fetching his water. PW3 kicked his jerricans. He grabbed him to stop him but PW2 his wife, intervened by hitting him with a stone on his head. He ran off home. On 21/6/2025, he was arrested. he did not commit the offences as charged and the complainant did not produce records from Nassi Hospital to confirm complainant received treatment in the said facility. No scan results were equally produced to prove the injuries sustained by the complainant. Analysis and Determination 9.The accused is charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The prosecution bears the burden of proving the charge beyond reasonable doubt.The ingredients that must be proved are:a.That the assault was committed by the accused person;b.That the complainant sustained actual bodily harm as a result of the assault. See Ndaa vs Republic [1984] KLR 10.On identity of the assailant, there is no dispute that the accused and the complainant are neighbors and that an altercation occurred on 12th June 2025 over access to water from pipes situated within the complainant's farm.PW2 testified that the accused entered their farm with jerricans to fetch water despite being informed that the pipes had been damaged. 11.A confrontation ensued and when she intervened after accused assaulted her husband, the accused turned on her and struck her on the neck and chest causing her to fall unconscious. Her testimony was corroborated by PW3, an eyewitness who witnessed the incident and stated that the accused hit PW2 on the chest and stomach despite knowing she was pregnant. 12.On the second limb, in Rex v Donovan [1934] 2KB 498, Swift J, defined bodily harm to include,“Any hurt or injury calculated to interfere with the health or comfort of the complainant. Such hurt or injury need not be permanent" 13.The medical evidence adduced by PW1 confirms that PW2 sustained injuries. Upon examination two days after the incident, PW1 noted tenderness on the lower abdomen, tenderness on the left index finger, pain on the posterior side of the neck and a reddish-brown, warm right breast. The P3 Form assessed the degree of injury as harm. The medical findings are consistent with PW2's account that she was assaulted. 14.PW4, the investigating officer, confirmed receiving the report shortly after the incident and stated that the complainant reported having been assaulted by the accused. The officer subsequently arrested and charged the accused. 15.The defence admitted being at the scene and acknowledged the existence of a confrontation. The accused however denied assaulting the complainant and instead claimed that PW2 struck him with a stone on the head after PW3 confronted him about fetching water. He further challenged the prosecution case on the basis that treatment records from Nassi Hospital and the ultrasound scan report were not produced. 16.The court has carefully considered the defence. The failure to produce treatment records from Nassi Hospital or the ultrasound report is not fatal to the prosecution case. The complainant's injuries were independently confirmed by PW1 through examination and production of the treatment booklet and P3 Form. The prosecution was not required to prove grievous injury or loss of pregnancy. The charge is one of assault causing actual bodily harm and proof of harm was sufficiently established by the medical evidence. 17.The court finds PW2 to have been a truthful witness. Her testimony was materially corroborated by PW3, albeit being her husband who witnessed the incident and by the medical evidence of PW1. The defence did not dislodge the prosecution evidence nor provide any plausible explanation for the injuries sustained by PW2. The accused's admission that he was present at the scene further places him at the locus in quo when the incident occurred. 18.Although PW4 stated that the complainant reported injuries to the right breast and chest only, while PW1 observed additional injuries on examination, the court considers these to be minor discrepancies that do not go to the root of the prosecution case. Such discrepancies are expected from different witnesses recounting the same event and do not affect the credibility of the evidence.In Joseph Maina Mwangi versus Republic Criminal Appeal No.73 of 1993 as cited with approval in the case of Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR) it was held inter alia that:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.” 19.Having considered the totality of the evidence, the court is satisfied that the prosecution has proved beyond reasonable doubt that the accused unlawfully assaulted the complainant and thereby occasioned her actual bodily harm. Disposition 20.The court finds the accused, Silas Juma Ochimbo, guilty of the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code and hereby convicts him accordingly under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 29TH JUNE 2026HON. ANNE NJERU- SRM