https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/344

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E556 OF 2025** **REPUBLIC……………………………………………………………..………..…..PROSECUTOR** VERSUS **COLLINS ONYAPIDI.….……………………………….…………..……............. ACCUSED** **JUDGMENT.** **Introduction and Evidence** 1. The accused person took plea on 23rd October 2025 on the charge of assault causing actual bodily harm contrary to section 251 of the Penal Code. 2. The particulars are that the accused person on the 15th day of October 2025 at about 1000hours at Kocholia Sub-location in Teso North Sub-County within Busia County assaulted Claudia Okisegere occasioning her actual bodily harm. 3. The accused person pleaded not guilty to the charges and was admitted to Cash Bail of Kshs. 20,000/= and alternative bond terms of Kshs. 60,000/= with surety of similar amount. The matter was set down for hearing and the prosecution called a total of five witnesses. 4. PW1 was the complainant Claudia Okisegere who testified that on 15th October 2025 she was bathing and on getting out of the bathroom she saw someone coming from the behind the said bathroom and asked him what he was doing. She further informed the accused person that there had been incidences of theft which question annoyed the accused person and who started following her and quarrelling her. He assaulted her by slapping her on the right cheek and pushed her making her towel to fall. She ran to her house and the accused person followed her. A neighbor one Mary Amakinat intervened and stopped the accused person from entering her house. She called her husband and informed him of the incident and who advised her to report the matter to the police station. She reported at Kocholia Police Post and proceeded for medical examination at Kocholia Sub-County Hospital. That she saw the accused person for the first time on the date of the incident. 5. On cross-examination she testified that she did not know what the accused person did for a living and she had never contracted him to carry firewood as it was the first time that she was seeing him. That she did not accuse him of being a thief but simply informed him that the area had frequent cases of theft. That on the material date the accused person was wearing a reflector, akala shoes, a marvin, had plaited hair and jeans. That the accused person assaulted her and she did not take a photograph of him assaulting her That the incident occurred at her home where she lives and she ran inside the house rather than screaming. That there were witnesses who saw the accused person assaulting the complainant. 6. There was no re-examination for this witness. 7. PW2 was one Mary Amakinat and a neighbor to the complainant who testified that on 15th October 2025 she was seated outside her house when she saw the accused person and a few minutes later she heard noise from the bathroom area. That the accused person and complainant had an exchange and the accused person slapped the complainant on the right cheek. Her towel fell and she bent to pick it up. She rushed to her house and she assisted the complainant in closing the door. The accused person then left. She did not know him prior to the incident. 8. On cross-examination she testified that the accused person was dressed in akala shoes, jeans, reflector jacket and an earring. She did not take a photograph of the altercation. That the evidence she had tendered in court is what she had seen on the material date. That she did not know what the accused person and complainant were fighting about. That she could not remember the colors of the clothes of the accused person. That she recorded her statement at the police station regarding the matter. 9. In re-examination she testified that she confirmed that her statement at the police station was correct and she signed it. 10. PW3 was one Faith Asikoyo and a neighbor to the complainant at the time of the incident and who testified that on 15th October 2025 at 1000hours she was at home when she heard people shouting. She later realized that it was the complainant and the accused person. That the complainant was pushed by the accused person making her towel to fall. Another neighbor told her to go and get dressed. That she came in late and did not see the accused person assaulting the complainant. 11. On cross-examination she testified that the accused person had plaited hair namely dreadlocks, a marvin, reflector jacket, chain on the neck, akala and blue jeans. That she heard the accused person being referred to as Collins. That she did not see the accused person assault the complainant but it is the shouting between the complainant and the accused person which attracted her to the scene. 12. PW4 was the clinical officer one Protus Okhonga Wafula who testified that on 15th October 2025 he examined the complainant who had a history of having been assaulted. That she appeared at the facility approximately seven hours after the assault and alleged to have been slapped by a person known to her. On examination she had a swollen right cheek which was tender and a headache. He made a diagnosis of soft tissue injury secondary to assault. He administered antibiotics and analgesics for the injury and prepared treatment notes and a P3 form which he produced as exhibits 1 and 2 respectively. 13. On cross-examination he testified that he did not verify who assaulted the complainant but simply examined and treated the patient. That the injuries were consistent with assault and he could not tell how many times the accused person slapped the complainant. 14. There was no re-examination for this witness. 15. PW5 was the investigating officer one PC Quinto Papa who testified that on 15th October 2025 the complainant reported that she had been assaulted and he began his investigations. He directed her to proceed for treatment and later on recorded statements of witnesses. He visited the scene and managed to arrest the accused person who was later arraigned in court. 16. On cross-examination he testified that the accused person was not remanded in police custody for four days as he was arrested on 22nd October 2025 and arraigned in court on 23rd October 2025. That he was led to the scene by the complainant and he got to know the accused person upon his arrest. That the incident occurred near Arizona bar which was about 400 metres from Kocholia Police Post and it was possible that the officers did not hear the altercation. That the report that the complainant made at the police station is that she was assaulted by a person she could identify physically before she was directed to first seek treatment. 17. There was no re-examination for this witness and this marked close of the prosecution’s case. Pursuant to a ruling delivered on 14th May 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. 18. The accused person elected to give sworn evidence and call two witnesses. However, on the date of defense hearing, he testified on his own behalf and did not call any witnesses. 19. In defense he testified that he was arrested on 22nd October 2025 and he was not informed of the reason for his arrest. He was later surprised to learn that there was an assault case. That there were material contradictions on the date of the week being that PW1 told the court that the incident occurred on a Wednesday and PW2 said it was a Tuesday. That the complainant gave him work to collect wood and they agreed on a figure of Kshs. 300/= but upon delivering the wood the complainant paid him Kshs. 50/= thus source of the dispute. That the complainant told the court that she did not know him and the police officers simply recorded his name as Collins. 20. On cross-examination she testified that he used to carry firewood for the complainant and had a dispute of Kshs. 300/=. He however conceded that he could not have a dispute with someone he did not know. 21. This marked close of the defense case and the court reserved the matter for judgment on 23rd July 2026. **Analysis and Determination** **Assault Causing Actual Bodily Harm** 1. Section 251 of the Penal Code provides for the offence of assault causing actual bodily harm as follows; ***“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years.”*** 1. PW1, the complainant testified that on the material date she was taking a bath and upon stepping outside, found the accused person standing nearby. Owing to the recent spate of robberies in the area, she enquired what he was doing there. The accused became agitated, slapped her on the right cheek and pushed her causing the towel she had on to fall. She reported the incident to the police. 2. This account was materially corroborated by PW2, who witnessed the commotion and saw the accused person slap the complainant on the right cheek. PW3, a neighbor, also responded to the commotion. Although PW3, did not witness the actual assault, her testimony places the accused person at the scene immediately after the incident and is consistent with the evidence of PW1 and PW2. 3. The medical evidence equally supports the prosecution case. PW4, the clinical officer, examined the complainant approximately seven hours after the incident and observed a swollen and tender right cheek. He assessed the injuries as soft tissue injuries secondary to assault. The medical findings therefore corroborate the evidence of PW1 and PW2. 4. The court also notes that PW1, PW2 and PW3 gave remarkably consistent descriptions of the accused person. They described him as wearing a reflector jacket and akala shoes, with dreadlocks and earrings. Their consistency even in the minute details strengthens the reliability of their identification. Moreover, both the complainant and the eye witnesses testified that they saw the accused person for the first time on the material date, leaving no room for mistaken identity. 5. The defence did not raise any reasonable doubt. The accused person initially alleged that his constitutional rights had been violated because he was not arraigned in court within the prescribed time. However, the investigating officer testified, without contradiction that the accused person was arrested on 22nd October 2025 and arraigned in court on 23rd October 2025. In any even this issue was not raised at the earliest opportunity and is unsupported by evidence. 6. The accused person further alleged that the complainant owed him Kshs. 250/= arising from delivery of firewood for which he had been paid only Kshs. 50/=. This issue was put forth to the complainant during cross-examination. However, in a glaring contradiction, the accused later stated in his defence that he did not know the complainant. During cross-examination by Mr. Rotich Prosecution Counsel, he conceded that one could not have a dispute with a person they did not know. These contradictory positions render his defence internally inconsistent and wholly incredible. 7. It is therefore the finding of the court that the evidence of the prosecution witnesses was credible, consistent and uncontroverted and that the prosecution proved its case against the accused person on the offence hereinabove. 8. The accused person is therefore convicted of the offences of assault occasioning actual bodily harm contrary to section 251 of the penal code under Section 215 of the Criminal Procedure Code. **JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 23RD DAY OF JULY, 2026.** Collins Onyapidi- The Accused Person Mr. Rotich Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 23.07.2026