https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/382

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **CRIMINAL CASE NO. E013 OF 2026** **REPUBLIC** **VERSUS** **CHACHA SAMUEL alias BLACK…………………………………..ACCUSED** **JUDGMENT** 1. The accused persons have been charged with the offence of Grievous harm contrary to section 234 of the Penal Code. The particulars are that the accused on the 5th January, 2026 at Kobinto, Kangumubar,Kuria West Sub County within Migori County, with another not before court unlawfully and intentionally did grievous harm to DAVID MAGIGE MAROA by cutting his head using a panga. **The Prosecution Case** 1. The prosecution called nine (9) witnesses namely: 2. **DAVID MAGIGE MARWA (complainant) (PW1)** 3. **ROSEMARY WANKURU (PW2)** 4. **VERONICA MWAJUMA (PW3)** 5. **JOSEPH KESAMBA (PW4)** 6. **ANTHONY CHACHA (PW5)** 7. **ELIJAH MWITA (clinical officer) (PW5)** 8. **PENELOPE ODINGO (PW7)** 9. **MARWA JOSEPH PETER (PW8)** 10. **NO. 58563 SGT. FRANCIS BUNDI (PW90** 11. The prosecution case was that PW1 testified that on 5/1/2026 at 5/1/2026 at around 10:00am he was going home at Kobinto from a mining site. He called Kisamba who came with a motorcycle and when they reached Kaa ngumu bar, Kisambe stopped and told him to wait. Kisamba took too long before coming about 5 minutes. PW1 went to check on him and found him taking beer. 12. PW1 then went out and a motorcycle came and indicated it was branching to the bar direction. The rider entered and packet the motorcycle, he alighted as well as his passenger. PW1 stretched his hand to greet the rider who he knew as “Black”. He was able to see him using the security light. He said the rider then slapped him on both cheeks. PW1 was shocked when he was slapped. The said Black then slapped him on the left shoulder with a sword. He tried to run into the bar and when he reached near the bar Blackie raised up the sword wanting to cut him but PW1 blocked the same and was cut on the left hand. PW1 entered into the bar and the counter lady closed the counter door and ran away. PW1 followed her to where the customers were sitting. 13. Kisamba asked who had cut him. The waiters ran away as he followed them, they entered into the kitchen and locked the door but he pushed the door and entered inside. The ladies ran away and he locked himself inside. He then came out of the kitchen and went outside. He passed Blackie and Kisamabe struggling as Blackie wanted to go away with his motorcycle. 14. PW1 said he ran towards the home of his sister but he fell down and lost consciousness. On regaining consciousness he found himself at Makongo’s hospital in Kehancha. He was cut on the head when he blocked the sword with his hand. He was in the hospital for two days and taken to ladopharma where he was admitted for 7 days. He the Makongo’s hospital is called Mother and Child hospital. He identified the discharge summary from the said hospital as PMFI-1, discharge summary from Ladopharma as PMFI-2. He continued with the treatment as an outpatient. The matter was reported at Masangora police post, he recorded his statement and went to Kehancha Sub County Hospital where an X-Ray was done and he was examined. He identified treatment notes from Kehancha Sub County Hospital as PMFI-3, and P3 Form as PMFI-4. He said the said “Blackie” is the accused in the dock. That the security lights were the solar street lights and there was also electricity light at the bar outside. 15. PW2 evidence was that she works at Sammy Kaangumu bar at the counter situate at Kobinto. On 5/1/2026 at 10:00pm she was at the counter when PW1 came and bought County drink. He drunk and paid for the same and left the bar. That the counter is in front and where customers sit is at the rear. She went to serve customers and on coming back she saw some blood stains and she alerted the manager VERONICA MWAJUMA. 16. They followed the blood stains and found PW1 near the ladies room. Immediately the attackers, one who had a maasai shuka and the other had a black and white jacket came while armed with pangas as they entered through the front door. The said attackers started fighting Gichaine and Chacha. PW1 said they locked themselves in rooms until the commotion cooled down. When they left the room they did not find the person who had been injured. 17. PW2 further stated that PW1 said he was tipsy and paid for his drink and went away. PW1 was in the ladies room leaning on the wall. PW2 said she did not see the person who cut the complainant. She did not identify the attackers in court. 18. PW3 evidence was that on 5/1/2026 at 10:00pm she was at the bar serving customers. PW1 had come to look for Gichaine, he talked to him and went outside. After 20 minutes she heard commotion of people screaming outside the bar. PW2 called her and told her that she had seen some blood stains. They followed the blood stains up to the ladies room where they found PW1 who had been cut on the head and left hand. PW3 went and called Gichaine who had gone for a short call. That is when two people entered inside the bar. One had a Maasai shuka and the other had a white black stripped sweater. They were armed with pangas. Gichaine went and asked them what was wrong and they started struggling, that is when the two men escaped and went away. She did not identify the attackers nor saw their faces. 19. PW4 evidence was that on 5/1/2026 at 10:00pm he was at Sammy Kaangumu bar where they came a few minutes past 10:00pm. He was with PW1 who he told to wait for him. PW4 found Chacha Anthony who was drinking Chrome they drunk the same and PW4 ordered for another one. They continued drinking that is when PW1 came and told him that they go home, but he told him to wait and he went outside. 20. After a few minutes PW3 came and told him that PW1 had been cut. He rushed out to see and when he found him at the corridor PW1 told him that it was Blacky who cut him. PW4 went to the verandah and met two people one had a Maasai shuka and the other was Blackie. PW4 asked him why he had cut PW1 and he asked him what he wanted to do. PW4 said there were street lights, security light outside and light inside the bar. He then retreated and held a stool. They exchanged words and the waiters started screaming and Blackie went away leaving his motorcycle behind. 21. PW4 said Anthony Chacha took a motorcycle and took PW1 to hospital as he had been cut on the left hand. He used another Motorcycle to go to Mother and Child Hospital where PW1 was being treated. In the evening PW1 was transferred to Ladopharma Hospital where he was admitted for four days. He identified the accused as the said Blackie who PW4 said used to drink at his bar at Masangora. 22. PW5 evidence was that on 5/1/2026 at 8:00pm he went to Kaangumu bar at Kobinto. At 9:00pm Kesamba came and joined him and continued to drink. PW1 came and told Kesamba they go but Kesamba told him to wait and he went outside. Kesamba bought another drink and later Veronica came and called Kesamba and told him that PW1 had been cut. They went to where he was at the corridor and had been cut on the left hand. PW1 told them that he had been cut by Blacky. They went outside and found Blackie at the door in company of another. Blackie had a panga and his colleague had a sword. Kesamba asked him why he had cut PW1 and he told him what do you want to do. People started coming around and Blackie went away. They found PW1 having collapsed outside the bar. He added that there were security lights at the scene. The said Blackie is the accused in the dock and has a bar at Masangora where he also drunk on that date. 23. PW6 produced treatment notes and P3 Form as exhibits 3 and 4 on behalf of his colleague one DAVID MARWA. He said on examination on 11/1/2026 the complainant had incisor wounds at the left temporal region 8cm long “V” shaped incisor wound at the forearm 30cm long, collection of fluids which caused swelling, discoloration of the skin at the back caused by a blunt object. The degree of injuries was classified as grievous harm. The weapon used was a sharp object as the wounds were even and straight. 24. PW7 evidence was that on 6/1/2026 she was on night shift when PW1 came at their facility at Mother and Child Hospital with a severe cut wound on the left hand. It was a deep cut wound at the elbow. There was also a cut wound on the head. They stitched the wound and did blood transfusion. She prepared a discharge summary marked PMFI-1 which she produced as exhibit-1 25. PW8 produced discharge summary from Ladopharma hospital as exhibit-2. His evidence was that PW1 was referred from Mother and Child Hospital with a deep cut wound on right arm, head and finger which were already stitched. He was discharged. X-Ray was done which showed that the scalp was affected as it had a crack. The right hand was tender and swollen. On admission he had a deep cut wound on left arm, head and tenderness on left hand. The discharge summary was prepared on 11/1/2026 by SILAS CHEPCHENG who is a nursing officer. That the history and examination of the injuries showed that they are consistent with assault. 26. PW9 investigated the case and charged the accused. His evidence was that on 6/1/2026 at 4:00am he was sleeping when he received a call from Samuel Chacha who told him that he had been robbed off his motorcycle. The accused called for a motorcycle and they proceeded to Kobinto about 5 kilometers from Masangora. The accused was with his two brothers and he led them to the scene at Kaa ngumu bar. He interrogated the waiters who told him that the motorcycle had taken a victim to Kehancha hospital. They came to Kehancha and upon reaching Mother and Child Hospital they met people besides the road who identified the accused and started pursuing them. They prevented the said people and they took accused to Kehancha Police Station for his own safety. 27. PW9 booked the case at Kehancha and the OCS instructed him to investigate the case. He issued the accused and complainant P3 forms. He visited the complainant in hospital. After the complainant left the hospital he came and recorded his statement. After investigation he found that the complainant had suffered grievous harm while accused had suffered harm and that is why he charged the accused. 28. PW9 said the incident took place on the road as he found blood stains on the road when he visited the scene. The witnesses said it is the accused who assaulted the complainant. The prosecution then closed its case. **The Accused Defence Case** 1. DW1 CHACHA MWITA SAMUEL gave sworn defence and denied the charges. His defence was that on 5/1/2026 at 9:00pm he was at his business place at Masangora seated with customers. One customer started causing fracas. The said customer is called SERE GATI. He wanted to fight with his brother. They stood up and intervened that is when SERE went outside. aAfter a few minutes he came while armed with a panga and started damaging items in the bar. The accused said he called SGT. BUNDI wanting to come at the bar he said he did not have means and enough officers to come at the club. Bundi told him to go to Kehancha police station and report there. 2. The accused used his motorcycle and went to Kehancha where he reached at 10:40PM as he left Masangora at 9:30pm which is a distance of 13 kilometers. He reported vide OB NO 58/05/2026 which he produced as exhibit-D3. The police told him to come in the morning and he went back to Masangora using motorcycle registration KMEJ 983W TVS. When he reached at Annex club one person stopped him, he stopped and he found out that it was Robi Sungura who he gave a lift to Masanggora. They passed Kobinto Centre and after 100 meters he met five people armed with a panga and rungus. They stopped him and before he could stop as the area had some potholes and had reduced speed he was hit on the head and fell down. The said people continued to beat him. He screamed for help as he escaped. Robi was also assaulted. He left his motorcycle at the scene of the attack on the road. He escaped through maize plantation and bushed till he reached Masangora and woke up his brothers who escorted him to Masangora Police Post. He woke up Sgt Bundi who woke up his colleague. Using his brother’s motorcycle they went to Kobinto but they did not find the motorcycle. Sgt. Bundi told him they go Kehancha Police Station. When they reached Mother and Child hospital in Kehancha they found people with motorcycle who wanted to stop them, but they proceeded to Kehancha police station. 3. The accused said he did not know what the said people wanted. When he reached the police station he was placed in the cells as the said people followed them to the station. He produced his 2nd OB NO. 03/06/01/2026 as exhibit-D4. He was in custody till 8/1/2026 when he was arraigned in court. He was not taken to hospital despite having been injured. He denied that he is called “BLACK”. His club is called club 254. After he was released on cash bail he went to hospital. He gave the original P3 form to the investigating officer, which was in the police file and produce a copy as exhibit-D2. He also produced the treatment notes as exhibit-D5. He later received information that his motorcycle from the investigating officer that it was taken to Taranganya police post. He went there but it was not there. He did not assault the complainant as at 10:00PM he was at Kehancha police station. 4. DW2 MWITA SAMUEL JOMO evidence was that on 5/1/2026 at around 10:00pm he was at Kehancha and got a customer who wanted to be taken to Kobinto at Sammy Kaa ngumu bar. He took the said customer there. DW2 entered inside the bar and bought a soda waiting for a customer. While inside the bar three people came from outside chasing one person. The said two people started a commotion and ordered them to sit down. DW2 said he their faces but does not know their names. He managed to escape and went home. He said the accused is his customer and was not at Kaa ngumu bar and he has never known him as “BLACK”. His club is called Club 254. The accused then closed his defence case. **The Law** 1. Section 234 of the Penal Code provides for the offence of Grievous Harm as follows: **“234. Grievous Harm** **Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”** **Determination** ***The first issue for determination is whether the complainant sustained injuries amounting to grievous harm.*** 1. The definition of Grievous harm as found in section 4 of the Penal Code Chapter 63 Laws of Kenya which reads as follows: ***"Grievous harm means any harm which amounts to maim or dangerous harm or seriously and permanently injures health, or which is likely so to injure health, or which extends to the permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense."*** 1. It now remains to consider the evidence on record to see whether that evidence discloses grievous harm as defined or otherwise. Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury. *See* ***(John Oketch Abongo v Republic [2000] eKLR)*** 2. In our instant case the complainant said he slapped on both cheeks. He was slapped on the left shoulder with a sword. He was also cut on the left hand when he blocked the sword. He showed healed scar. PW2 said PW1 was cut on the left hand. PW3 said the complainant was cut on the head and left hand. PW4, PW5 said PW1 was cut on the left hand 3. PW6 produced treatment notes and P3 Form and on examination he said the complainant had an incisor wound at left temporal region 8cm long, “V” shaped incisor wound at forehead 30cm long, collection of fluid which swelling and discoloration of the skin. The injuries were caused by sharp object and he classified the degree of injuries as grievous harm. PW7 who first examined the complainant said he had a deep cut wound at the elbow and a cut on the forehead. He stitched the wound and made a referral for a CT scan and X-Ray. She produced the discharge summary as exhibit-1. PW8 evidence was that the complainant came at Ladopharma from Mother and Child hospital with deep cut wound on the right arm, head and finger which were stitched. He said an X-ray was done which showed that the scalp was affected as it had a crack. The right hand tendon was severed. He produced the discharge summary as exhibit-2 4. In cross examination PW8 said the discharge summary he produced does not show that the tendon was severed. He talked of an X-ray having been done but none was produced even the report or film. The treatment notes produced as exhibit-3 shows that a diagnosis of soft tissue injuries was made. The medics who testified did not justify why the injuries were classified as grievous harm. Given the punishment the offence of grievous attracts, it was incumbent for the medical officer who produced the P3 form to justify his classification, which he did not do. It is my considered opinion that a diagnosis of soft tissue injuries having been made, the degree of injuries should be harm as there was no justification given to qualify the degree of injuries to be grievous harm. ***The second issue for determination is whether the accused was properly identified as the perpetrator.*** 1. This issue is crucial as the alleged offence is alleged to have occurred at night. In determining identification or recognition of a perpetrator at night, it is the duty of the court to test the reliability of the said evidence through an inquiry into or evaluation of the relevant circumstances attending the identification (**Kenneth Josphat Bamu v Republic [2013] eKLR).** 2. See also the case of **John Muriithi Nyagah V Republic [2014] eKLR**, where the Court of Appeal held that: **“In testing the reliability of the evidence of identification at night, it is essential to make an inquiry of the relevant circumstances such as the nature of the light, the strength of the light, its size, its position relative to the suspects etc.”** 1. The kind of inquiry required of the circumstances of identification at night is not a superficial or generalized one, but quite intense into the specific elements constituting identification so as to establish that the identification was free from mistaken identity, error or any form of delusion or illusion. 2. In **R –vs- Turnbull & Others (1973) 3 ALL ER 549,** which is generally accepted in our jurisprudence as an expression of the kind of inquiry intended for purposes of identification in difficult circumstances such as at night, where it was stated that:... ***“The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?*** ***Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”*** 1. Thus, it is trite that evidence of visual identification should always be approached with great care and caution (see **Waithaka Chege v R {1979} KLR 271**). Greater care should be exercised where the conditions for favourable identification are poor. (**Gikonyo Karume & Another v R {1900} KLR 23)**. Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (**See Abdalla bin Wendo & Another v R, {195} 20 EACA 166; Wamunga v R, {1989} KLR 42; and Maitanyi v R, 1986 KLR 198).** 2. The difference in approach between identification and recognition was expressed thus by Madan J.A in **Anjononi and Others v The Republic [1980] KLR;** ***“…………………This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”*** 1. That is not to suggest of course, that cases of misrecognition cannot occur **(See Karanja & Anor vs. Republic [2004] KLR 140)** and courts are still duty-bound to examine such evidence with great care. 2. The Court of Appeal in the case of **Joseph Muchangi Nyaga & another v Republic [2013] eKLR** stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently. 3. In our instant case the complainant said that at 10:00am while outside the Kaa ngumu bar a motorcycle came and parked. The rider and his pillion passenger alighted and he stretched his hand to greet the rider who he knew as “Blackie”. He saw him using the security light. The said rider then attacked him by slapping him on both cheeks and he was shocked. He was slapped on the left shoulder with a panga and he tried to run into the bar. When he reached near the bar “Blackie” raised up the sword to cut him, but he blocked with his left hand and was cut. He however managed to enter into the bar. 4. Guided by above cited authorities I find that the complainant did not tell the court the intensity of the security lights outside the bar, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently. 5. Further the evidence of PW2 show that the complainant was in the bar drinking County alcoholic drink. He was drunk and left the bar after paying. This evidence clearly demonstrates that the accused was intoxicated and his vision was blurred. The complainant did not tell the court if he saw the face of the accused to be able to identify him. The complainant in cross examination he said he did not mention the name Samuel Chacha or “Blackie” in his statement. He also said he did not mention in his statement how he had known the accused. 6. The investigating officer in cross examination admitted that PW1, PW2, PW3 & PW4 statements does not have the name of the accused mentioned therein. From the evidence of the investigating he only said the witnesses gave him the nick name of the accused, which of course is not indicated in their statements. The same does not show that the complainant and his witnesses described to him the attacker and how they were able to identify him as the accused person herein. I find that the complainant did not properly identify the accused as the person who attacked him on that night he was attacked. 7. PW2 and PW3 said they did not identify the attackers or the person who injured the complainant. 8. PW4 evidence on identification was that PW1 told him that he had been cut by “Blackie”. PW4 went to the corridor of the bar where he met two people. One had a Maasai shuka and the other was “Blackie”. He asked him why he had cut PW1 and Blackie told him that what he wanted to do. He said there were streetlights and security lights outside the bar and inside the bar there was light. He then retreated and held a stool to defend himself. The waiters started screaming and Blackie went away leaving his motorcycle behind which Anthony Chacha took. 9. From the evidence of PW4 the same does not disclose that there was light in the corridor, its intensity and location to the accused. He did not tell the court that he saw the accused’s face. If indeed the accused left his motorcycle at the scene which one ANTHONY CHACHA took then it would been handed to the police and produced as an exhibit in this case. PW4 evidence also shows that he did not see the accused cutting PW1. In re-examination he said he does not know where the name “Blackie” comes from. It is my considered opinion that PW4 did not properly identify the accused as the person who had attacked the complainant. 10. PW5 evidence was that PW1 told them that he had been cut by “Blackie”. They went outside and found “Blackie” at the door in company of another person. “Blackie” had a panga while the other person had a sword. Waiters started screaming and people started coming that when “Blackie” and the other attacker ran away. From the evidence of PW5 he did not tell the court how he was able to identify the attacker to be the accused herein. He only said that there was security lights and lights at the scene. He never told the court the intensity of the light, the location of the light to the accused and how long the accused was under his observation. Further from the evidence of the investigating officer PW5 did not describe and/or tell him how he knew and identified the accused at the time of the alleged attack. 11. PW5 in cross examination he said he told the police that the person who assaulted the complainant is known as “Blackie” and can identify him, however he did not identify him on the ID parade. I find that the identification of accused by PW5 is not free from error as he did not properly identify him. 12. In conclusion I find that without accused being properly identified by the witnesses, then, there is no evidence connecting him to the offence as charged. Thus, I find the prosecution has not been able to prove its case beyond any reasonable doubt and the accused is not guilty as charged with the offence of grievous harm contrary to section 234 of the Penal Code, and hereby acquit him under section 215 of the Criminal Procedure Code. **Dated, Signed and Delivered in open Court at Kehancha on this 30th day of July, 2026.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Ms. Thyaka………… Prosecution Counsel** **Mr. Kigera/Enock………… Court Assistant** **Accused …………….. 1,2 & 3Present** **Interpretation ……… English/Kiswahili** **Accused Language … Kiswahili** **Advocate for accused….Mr. Abisai present**