https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/229

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATES COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E168 OF 2025** **REPUBLIC VERSUS JAMES WANDERA OKONGA** **JUDGEMENT** 1. Accused has been charged with the offence of grievous harm contrary to section 234 of the Penal Code. Particulars are that on the 20th day of October 2024 at Bumina area in Bunyala Sub County within Busia County, accused wilfully and unlawfully did grevious harm to Rose Nabwire Okonga. 2. Accused denied the charge and the prosecution presented evidence as follows: 3. PW1 Rose Nabwire Okonga in her sworn testimony stated that on 20/10/2024 at around 8.00pm she was alone in the house, ate dinner and went to bed as it had rained heavily an hour earlier. She then heard a knock on the door and went from her bedroom to the sitting room. She saw, using her very bright security light at the door and inside her sitting room, at the same door her two step children namely James and Kennedy. They demanded for money which they believed she had been paid after selling part of her land. she informed them that no sale had taken place. Accused hit her first with his fist on her left side of the face causing swelling to the area and the left eye. Accused’s mother, Everlyne Osinya and his sister Sharon Okonga came and escorted accused into their house. Kennedy hit her with a rod on the left knee result of which she fell on the ground. Kennedy kept asking James to hand him a panga to finish her off. She crawled outside behind her house with her phone in her hand and managed to call Raphael Juma her in law to come to her rescue and that his children were hurting her and requested him to call the police on her behalf as the said accused and is brother were armed with pangas. Raphael came and in the company of a good Samaritan they escorted her to the police station. she sustained a facture of her leg with the bone sticking out. Police officers ordered Raphael to escort her to the hospital. The following day she returned to the police station and recorded her statement and sought further treatment at Nangina Hospital. An XRAY was done and a metal plate was to be inserted at a cost of Kshs 150,000 which she could not afford at the time. She was escorted to Busia where she was admitted at Egesa Hospital where she stayed receiving treatment for a month from 3 fractures. She produced treatment notes from Port Victoria Hospital as Pex no. 1, referred to a referral note from Holy Family Nangina Hospital dated 21/10/24, XRAY films from Nangina Hospital and a further one from Busia and a P3 Form. accused persons broke into her door. Police took photographs of the said door. Accused’s family knew she intended to sell her portion of their family property when a surveyor came to view the same hence imagine she had sold already and was in possession of money. Accused and his brother had pangas, sticks and rungus which they used to inflict the injuries on her body. 4. PW2 Collins Oscar Wesebebe, a clinical officer working at Port Victoria Hospital testified that complainant herein visited the hospital on 24/10/2024 complaining of knee joint pains arising from assault by a person well known to her. On examination, she had pain, swelling and obvious deformity and loss of function on her right leg. He made an impression of a right distal femur fracture and ordered an XRAY. He then referred the patient for orthopedic treatment at Busia Referral Hospital. He assessed the injury as grievous harm and later filled complainant’s P3 Form which he produced as Pex no. 5. The complainant needed urgent surgical treatment and hence the referral to Busia. He did not note any injuries of swelling on her face or mouth. 5. Pw3 Raphael Juma Okonga testified on oath that on 20/10/2024 at around 8.00pm, he received a call from the complainant informing him that she needed assistance getting to a hospital after being injured. He found her inside a cassava plantation and ferried her to Port Victoria Hospital. She informed him that it was James (referring to accused) and his brother Kennedy his nephews who had attacked her and injured her on her legs. He resides in the same homestead as accused and the complainant and accused’s family and complainant’s family have a dispute which does not allow them to live peacefully. 6. PW4 87880PC Abraham Naro the investigating officer stated to have been assigned the case on 21/10/2024 after the same was reported at Port Victoria Police station. Complainant reported being assaulted by on 20/10/24 at around 8.00pmby her step sons Kennedy Okonga and James Andera. The two came into her house as she slept demanding a share of the money, they believed she had been paid after selling land. When she told them she had no money, the two began assaulting her. She managed to flee and hide in the bushes nearby and called PW3 who escorted her to the hospital. He issued her with a P3 Form which was filled and the nature of injuries assessed as grievous harm. Complainant sought further treatment. he managed to arrest accused but his accomplice fled and is still at large. He recorded the witness statements and also visited the scene. He took no photographs of the scene. The TV belonged to complainant’s daughter so he did not charge him with damage of the same as well. 7. The prosecution cited difficulties tracing one Praxides Juma of Holy family Hospital Nangina to testify despite issuance of summons and proceeded to close its case. Accused was found with a case to answer and placed on his defence. His evidence was as follows: 8. DW1 James Wandera Okonga in a sworn statement stated to understand the charges he was facing and that complainant herein was well known to him as his step mother. On 20/10/24 at around 2.00pm, he and his brother Kennedy attended a family memorial service meeting and thereafter went into a bar. They then headed home and on arrival, Ken informed him that complainant had attempted to illegally sell their family land. complainant who was outside heard them and began hurling insults at them their mother called them into the house. ken went and hit the complainant who began screaming and ran off into their neighbor- Ajiambo’s home. He returned to Port Victoria the following day then travelled to Nairobi. Police went looking for them at their home. Complainant demanded for Kshs 200,000 as compensation which he refused to pay hence the arrest. he did not inflict the injuries as alleged. 9. DW2 Ajiambo Scovia Bwire in her sworn statement stated that complainant and accused are her neighbors and they both lived in the same homestead. On 20/10/24 at around 8.00pm she was cooking when she heard complainant in a heated exchange with Ken and James. She asked complainant to leave the boys alone and complainant entered into her house. Ken followed her and began hitting her door violently. Complainant fled from her house and ran into the neighbor’s house. That there was a hole next to the neighbor’s door where complainant slipped and fell fracturing her leg. Complainants legs had injuries prior to the incident. in the morning, she saw complainant with a cast on her leg. Accused did not assault the complainant. She did not have evidence that complainant’s legs had injuries prior to this incident. That for a long time, complainant walked differently from everyone else. 10. DW3 Immaculate Awuor Juma in her sworn testimony stated that accused and complainants were both her neighbors hence well known to her. That on 20/11/2024 around 8.00pm, she heard complainant insulting accused who was with Kennedy. Complainant came into her house and locked herself inside and then left with a lantern. in her compound, there are trenches all over. She did not see accused assault the complainant. The incident took place in the month of November and could not tell what transpired in the month of October. At no time did accused ever request her to record a statement regarding the incident to the police. 11. In his submissions, accused submitted that the prosecution had failed to establish the charges beyond reasonable doubt for reasons that there were material contradictions by the prosecution witnesses as to where complainant was treated. That there was no eye witness to the incident nor evidence of a broken door or television, that the complainant’s evidence of injuries on her face and mouth were unsubstantiated by medical evidence. That the prosecution failed to call The Nangina Hospital doctor who filled the treatment notes. That his evidence in defence remained unchallenged hence in his favor. He prayed for an acquittal of the charges. 12. Section 234 of the Penal Code under which the accused is was provided: “Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life 1. Based on the evidence summarized above, the key issues for determination are: 2. Whether the complainant sustained grievous harm. 3. Whether it was the accused who unlawfully inflicted the injuries. ***Analysis and Determination*** 1. Section 4 of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1948/81) defines grievous harm as follows: ***-“grievous harm” means 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 any permanent or serious injury to any external or internal organ, membrane or sense;*** 2. There is no dispute that the complainant suffered serious injuries. PW2, the clinical officer, examined her and found pain, swelling, deformity and loss of function of the right leg. He diagnosed a distal femur fracture and assessed the degree of injury as grievous harm. The P3 Form produced as Pexh. 5 supports that finding. The defence did not challenge the existence of the fracture. Accordingly, the element of grievous harm was proved. 3. This brings me to the issue is the identity and participation of the accused. 4. PW1 testified that at about 8.00 p.m. she heard a knock on her door and, aided by a bright security light and lighting inside the sitting room, recognized her step sons James (the accused) and Kennedy. Being persons well known to her, the possibility of mistaken identity was minimal. She stated that the accused first struck her on the left side of the face while Kennedy later hit her on the knee with a rod causing her to fall. She further testified that both were armed with pangas, sticks and rungus and continued attacking her until she escaped and hid behind the house. 5. Section 231(b) of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1948/81) on acts intended to cause grievous harm refers to the use of a dangerous or offensive weapon. The fact of being armed with the pangas rungus and sticks is evidence of mens rea by the accused person. No one arms himself in my view unless with the intention to use the weapon he wields. In ***Wairimu v Republic [2025] KEHC 500 (KLR)*** , the court held that “*The mens rea may only be taken away in the circumstances described under Section 9 of the*[*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1948/81)*. Mens rea can only be taken away if it can be shown that the appellant was by reason of insanity (Section 12 of the*[*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1948/81)*) or intoxication induced by the complainant (Section 13 of the*[*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1948/81)*) not aware of what he was doing, or that it was unlawful. None of these factors were argued by the appellant.”* I hold similarly in the present case. 1. Complainant’s evidence regarding the presence of the accused is corroborated by the defence itself. DW1 admitted being at the scene with Kennedy and confirmed that a confrontation occurred between the complainant and Kennedy. He further admitted that Kennedy assaulted the complainant. His defence was only that he personally did not participate. 2. PW3 Raphael Juma testified that immediately after the incident the complainant telephoned him seeking help and informed him that James and Kennedy had assaulted her. This was a report made at the earliest opportunity before there was time for fabrication and lends credibility to her account.The investigating officer, PW4, confirmed that upon reporting the matter the complainant named both James and Kennedy as her attackers. The consistency of her account from the time of reporting to her testimony in court strengthens her credibility. 3. The defence witnesses do not materially weaken the prosecution case. DW2 claimed that the complainant fractured her leg after slipping into a hole while fleeing. However, she admitted that Kennedy had followed the complainant and was violently hitting her door. Her evidence therefore confirms the aggressive conduct of the accused's side immediately before the injury occurred. Further, she produced no evidence that the complainant had pre-existing injuries. Her assertion that the complainant previously walked differently remained speculative. 4. DW3's evidence carries little probative value. She stated that the incident occurred in November 2024 whereas the charge relates to October 2024. She candidly admitted she could not tell what transpired in October 2024. Her testimony therefore does not directly address the incident before court. 5. The accused submitted that the prosecution failed to call the doctor from Nangina Hospital and that there were contradictions regarding treatment. However, section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. The grievous injuries were proved by PW2 through medical examination and production of the P3 Form. The failure to call the Nangina Hospital clinician was therefore not fatal. 6. The court also notes that while PW2 did not observe facial swelling described by PW1, the examination occurred four days after the incident. The absence of visible facial injuries at that stage, in my considered view, does not negate the occurrence of the assault, particularly where the principal injury forming the basis of the charge was the fractured leg. 7. The defence that the complainant fell into a trench is not convincing. It was raised by defence witnesses who were neighbours and whose accounts were inconsistent. More importantly, the accused himself admitted that Kennedy assaulted the complainant. The evidence as a whole demonstrates that the accused acted jointly with Kennedy in the attack. Under the doctrine of common intention, each participant is liable for the acts committed in furtherance of their shared unlawful purpose. **Disposition** 1. The court is satisfied that the complainant sustained grievous harm in the form of a fractured femur, that the injuries were sustained during an unlawful assault perpetrated by the accused jointly with Kennedy Okonga and that the prosecution evidence was credible, consistent and proved the charge beyond reasonable doubt. 2. Accordingly, I find the accused James Wandera Okonga guilty of the offence of grievous harm contrary to section 234 of the Penal Code and convict him under section 215 of the Criminal Procedure Code. Dated, signed and delivered at Port Victoria this 29th day of June 2026 Hon. Anne Njeru SRM