https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/135

Republic v Odhiambo (Criminal Case E608 of 2026) [2026] KEMC 135 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEMC 135 (KLR) Republic of Kenya In the Mombasa Law Courts Criminal Case E608 of 2026 JM Mwenda, CM June 18, 2026 Between Republic Prosecution and Michael reuben Odhiambo Accused Judgment A. Introduction. 1.In every criminal trial, two narratives often emerge from a single incident, each firm in its own telling, each seeking acceptance as truth. This is neither unusual nor unexpected. Indeed, it is the ordinary burden of justice. The court is, however, not called upon to decide cases by the number of versions presented, nor by the confidence with which they are advanced, but by a careful and dispassionate evaluation of the evidence, measured against the standard of proof required by the law. 2.In criminal cases such as this, that burden is proof beyond reasonable doubt, and it rests wholly upon the Prosecution except on few limited exceptions. It is a burden that never shifts to the accused person. There is a long line of judicial authority to this effect, spanning centuries, but perhaps the most frequently cited is Woolmington v DPP (1935) AC 462, whose facts I need not reproduce in this judgment. 3.In this matter, what began as a demand for repayment of a debt allegedly owed by the accused, escalated with unsettling speed into a confrontation between the parties. The prosecution contends that this encounter departed from a simple disagreement and entered the terrain of criminal conduct, resulting in injury to the complainant on his nose and chest. The accused, however, offers a completely different account denying that he ever assaulted the complainant and maintaining his innocence throughout. His argument is that it is the complainant who attacked him. 4.In the case before court, the accused person is charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars of the offence are that on the 7th day of April, 2026, at about 1400 hours at Majengo King'orani area in Mvita Sub-County within Mombasa County, he willfully and unlawfully assaulted Ahmed Joseph Edward, thereby occasioning him actual bodily harm. 5.The accused pleaded not guilty to the charge, necessitating a full trial. The prosecution called four witnesses in support of its case. 6.PW1, the complainant, testified that on 7th April, 2026 at about 2.30 p.m., he was at Total Petrol Station along Lumumba Road where he had taken his vehicle for servicing. While there, he encountered the accused, whom he knew as a customer who had allegedly obtained eggs from him on credit and failed to pay. He testified that he had previously reported the matter at Makupa Police Station and upon seeing the accused, requested him to accompany him to the station. According to PW1, the accused attempted to flee and, when he tried to restrain him, he punched him on the nose and chest. He stated that he had recently undergone heart surgery and the assault caused him considerable pain. He further testified that he fell to the ground and was assisted by members of the public. He later proceeded to Makupa Police Station and thereafter sought medical treatment. He identified the treatment notes and P3 Form which were later produced by PW3 in evidence. 7.PW2, Mohamed Ali Swaleh, testified that he was passing through King'orani area on the material day when he heard commotion. He further testified that he saw the accused punch the complainant who fell on the ground, crying out that he was unwell. He further stated that he did not know the complainant before that day. He assisted him from the ground and advised him to report the matter to the police. He testified that they exchanged contacts with the complainant just in case he would need his assistance later, he was later called at Makupa police station where he recorded his statement concerning the incident. His testimony remained firm and unshaken during cross-examination. 8.PW3, a Medical Officer from Coast General Hospital by the name Ms. Aisha Ali, testified on behalf of her colleague Zainab Mohammed who was away undertaking her master’s degree. The medical evidence showed that the complainant was treated on 7th April, 2026 after reporting an assault by a person known to him. The doctor relied on the P3 form whereby she testified that on examining the complainant, it revealed a cut wound on the nose and complaints of chest pain. The degree of injury was assessed and documented in the P3 Form as harm and the probable mechanism of injury as blunt object. The P3 form was dated 8th April,2026 and was produced as Prosecution exhibit 2 and the treatment notes were produced as exhibit 1. 9.PW4, the Investigating Officer, testified that the complainant reported the assault at Makupa Police Station on 7th April, 2026. She recorded witness statements, carried out investigations, and subsequently caused the accused to be charged before this Court. When she was put to task during cross-examination as to why the date of arrest indicated 8th of April, 2026 on the charge sheet, she stated that the accused had earlier been booked for the offence of obtaining goods under false pretense on 7th April,2026 and she only took action on the assault case on 8th of April, 2026. 10.The prosecution closed their case at that juncture, a ruling was delivered on a case to answer and the accused was placed on his defence. 11.Upon being placed on his defence, the accused gave sworn testimony. He denied assaulting the complainant and instead alleged that it was the complainant who grabbed him by the neck and accused him of being a thief. He maintained that members of the public intervened and advised both parties to proceed to the police station. He called no witnesses in support of his defence. B. Issues For Determination. 12.Having considered the evidence on record, the Court finds that the following issues arise for determination:a.Whether the offence of assault causing actual bodily harm was proved;b.Whether the inconsistencies regarding the date of the offence and the contents of the complainant's statement are fatal to the prosecution's case. C. Analysis And Determination. 13.The offence of assault causing actual bodily harm is created under section 251 of the Penal Code. In Ndaa v Republic, Criminal Appeal No. 46 of 1983, the Court identified the essential ingredients of the offence as:i.Proof that the complainant was assaulted by the accused; andii.Proof that the assault occasioned actual bodily harm. 14.On the first ingredient, the complainant gave a clear account of the events of the material day. His testimony was corroborated by PW2, an independent witness who had no prior relationship with either party. PW2 happened upon the scene by chance and had no discernible reason to fabricate evidence against the accused. The Court found him to be a truthful witness. 15.Truth, has a way of speaking out, it cannot remain hidden forever, sometimes the court might find it difficult to know who the truthful party is especially where there are different narratives as I pointed out herein above when I started this judgement, however, it speaks through the evidence presented and eventually it reveals itself however deep it might be buried, the court must be careful to listen on the consistency of the evidence before it before it makes a determination. In this case, the testimony of PW1 did not stand alone; it found support in the evidence of PW2, whose account flowed in harmony with that of the complainant. 16.On the second ingredient, the prosecution tendered medical evidence through PW3. The treatment notes and the P3 Form confirmed that the complainant sustained a cut wound on the nose and complained of chest pains following the assault. The injuries documented were consistent with the account given by the complainant. The Court therefore finds that actual bodily harm was proved. 17.The Court further finds that the accused was positively identified as the assailant. PW1 knew him well before the incident as they had earlier been involved in some business, the accused person did not contest knowledge of the complainant and therefore, that is not an issue this court intends to delve on however, this court is minded to cite the case of Anjononi & others vs Republic (1980) KLR 59. The court is aware that the principles therein are well settled and may somehow appear cliché to reproduce them but the court is mindful that the accused person who is unrepresented is entitled to fully understand the reasoning of this court and therefore will reproduce a passage therein. In the said decision, the court of appeal held that;recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger…... 18.Further, PW2 witnessed the assault and identified the accused person in Court. The possibility of mistaken identity is therefore completely eliminated. 19.The defence drew the Court's attention to inconsistencies regarding the date of the offence and the contents of the complainant's statement. It is now settled law that a variance regarding the date of an offence is not automatically fatal to a prosecution case. The critical question is whether the discrepancy misled the accused or occasioned a failure of justice. 20.The complainant candidly explained that the reference in his statement to 8th April, 2026 was an error and maintained that the offence occurred on 7th April,2026. This explanation was supported by the treatment notes and P3 Form, both of which showed that he sought treatment on 7th April, 2026. Similarly, the discrepancy regarding the name of the assailant in the statement was explained as a recording error. 21.The Court finds that these inconsistencies were minor and did not prejudice the accused in the preparation or conduct of his defence. They did not occasion any miscarriage of justice. 22.That said, the Court must observe that such discrepancies are entirely avoidable. The prosecution bears a duty to carefully scrutinize witness statements and charge sheets before presenting a matter to Court and serving the same upon the accused persons or the defence counsel. Accuracy in recording witness statements served upon the accused person is a fundamental component of a fair trial that ensures that the accused person understands the charges and evidence before him, it is not a mere procedural ornament; it is one of the pillars upon which the administration of justice rests. 23.For avoidance of doubts, the courts observations on the importance of accuracy in recording witness statements should not be construed to suggest that the accused suffered any prejudice in the present case, the court is satisfied that the trial was conducted fairly and in accordance to the laid down procedure. 24.The Court now turns to the defense. The accused denied the charge but called no witness to support his version of events. His defence amounted to a mere denial and did not dislodge the consistent evidence presented by the prosecution. 25.When the evidence of both sides was put on the scales of justice, the prosecution’s case was so strong that their case remained firm, coherent and unshaken. The defence was frail and unconvincing, it did not expose any material weaknesses on the prosecution’s case. 26.The accused person sought the courts assistance in obtaining CCTV footage of the premises where the incident occurred although belatedly so, which he believed would help in his defence, however, with respect, that invitation was misplaced. The court is an impartial arbiter and its role is to adjudicate based on the evidence presented before it. If the accused considered the said CCTV footage important for his case, the obligation rested upon him to take appropriate steps to present it before court. To descend into the arena of assisting the accused person gather evidence for his case during trial is not the role of the court, the court cannot start swimming in such waters without imperiling the neutrality that justice demands. I think I have said enough on that issue. D. Conclusion. 27.Having considered all the evidence before it, the Court finds that the prosecution proved its case beyond reasonable doubt. The accused person's defense does not raise any reasonable doubt and is hereby dismissed. 28.Accordingly, the accused is found guilty and is hereby convicted under Section 215 of the CPC for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 18TH DAY OF JUNE 2026.SIGNED BY/FOR:THE JUDICIAR Y O F KENYAHON. JAMLICK MURIITHI MWENDAMombasa Magistrate Court