https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/408

 **REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATE’S COURT AT LAMU** **CRIMINAL CASE. NO. E043 OF 2026.** **REPUBLIC………………………………….……………………………………..PROSECUTOR** **-VERSUS-** **BAYA EDISON THOYA.…….…………………..………………………..ACCUSED PERSON** **JUDGEMENT.** 1. **BRIEF FACTS.** 2. Baya Edison Thoya is charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal code. The facts in support of the charge are that on 14/2/2026 at around 1700hours at India area of Langoni in Lamu County the accused unlawfully and intentionally assaulted Dennis Baya Thoya thereby occasioning him actual bodily harm. 3. 4 witnesses were called by the prosecution and after their testimonies the accused was found to have a case to answer and after being placed on his defence he gave a sworn statement and called one other witness. I have considered the testimonies and the exhibits produced. **The Prosecution’s case.** 1. Dennis Baya Thoya the complainant, stated that on the material date while at home, the accused came from the house he was sleeping in and violently attacked him with a panga on his right knee and he sustained a cut wound and he was rushed to hospital. He identified the P3 and treatment notes issued to him. 2. Pw 2 the complainant’s mother did not witness the incident but stated that she was called by one Eva and who informed her that the complainant had been rushed to hospital after being injured by the accused. 3. Pw 3 No. 251707 PC Erick the IO in the matter stated that the investigations revealed that on the material date relevant to this case the complainant was at the accused’s home with one Ann and Malaki and the accused was inside the house. The complainant, Anne and Malaki were having a conversation when the accused came out of the house and went straight to the complainant and sought to know why he was at their home and he answered that he oftenly comes to catch up with his friends and they are neighbours. The accused was seemingly not amused with the respond and he went into the house and came back armed with a wooden stick and a panga and violently attacked him using both weapons and as a result he sustained the injuries complained off. The accused was then arrested later that day. 4. Pw 4 Dr. Mohamed Kombo Bwana confirmed that indeed the complainant was seen at their facility and complained of injuries to his left leg having been beaten by a person known to him. He had a cut wound which was cleaned and stitched and a tetanus injection administered. He identified the P3 and the treatment notes and produced them as exhibits. **Defence case** 1. The accused in his defence stated that on the material date and time he was in the house taking a nap after he found the complainant, Anne, his sister, Malaki and Omar. 2. As he was enjoying his sleep he was woken up by his brother who notified him that that sister was in trouble. He rushed out and found his sister being held against the wall by the complainant and he went and sked him why he was doing that and he stepped in to rescue his sister and he pushed him away and by bad luck he fell down a piece of clay roof injured his knee. 3. This altercation caught the attention of the members of the public and who were gathering around and who came and took him away. This testimony was corroborated by Dw 2 Everlyne Neema the sister of the accused. 4. **ISSUE FOR DETERMINATION.** 5. This court has identified one issue for determination to wit; 6. **Whether the accused assaulted Dennis Baya Thoya.** 7. **ANALYSIS AND DETERMINATION.** 8. The essential elements of the offence of assault causing actual bodily harm are; 9. **The accused assaulted the complainant or victim, which** 10. **Occasioned actual bodily harm.** 11. An assault is any act by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence. 12. Of actual bodily harm, or hurt or injury, in **Rex vs Donovan, Swift J, as quoted with approval in the case of Vicky Chelangat v Republic [2022] eKLR** stated:- **"For this purpose, we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the complainant. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."** 1. Section 2 of the Penal Code defines harm as follows: - **“harm” means any bodily hurt, disease or disorder whether permanent or temporary;** 1. I have carefully examined the facts and testimonies of Pw 1 as well as the medical documents produced in evidence. It should be noted that the evidence by all those witnesses was perfectly corroborated and the accused did very little to challenge them in cross examination. Infact in his defence the accused does not deny in principle that he caused the injury to the accused save that he says it was by bad luck as a result of the push he occasioned to the complainant. 2. After carefully analysing the evidence by both the complainant and the accused, I tend to believe the evidence of the accused especially as relates to how the injury was caused. It is not possible that the complainant was attacked with the panga as there is no indication how deep or long the cut wound was and this lends credence to the account of events as narrated by the accused and his witness. 3. However, this does not absolve the accused of the offence he is accused off. He without any lawful cause intervened to a fight that he knew nothing about and as a result caused the injuries complained off. In any event that he felt that he sister’s safety was at risk, he would still have separated them without necessarily injuring any of them but he violently pushed the complainant to the ground causing him injuries. 4. Had he not pushed the complainant to the ground, the complainant would not have been injured and by his actions he caused the injuries complained off. 5. From the above exposition there is no doubt that it is the accused who caused the injuries complained off a fact the accused himself admitted to and that the said injuries were actual bodily harm as evidenced by the testimony of the accused, the medical notes and the P3 form produced in evidence. The count is thus proved beyond any reasonable doubt. 6. **CONCLUSION AND DISPOSITION.** 7. The net effect being that the accused person is found guilty of the offence of assault causing actual bodily harm contrary to section 251 of the Penal code under section 215 of the Criminal Procedure code. 8. Orders accordingly. **DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS..30th …DAY OF…July…2026.** **F.M. MULAMA** **RESIDENT MAGISTRATE** **In the presence of:** Court Assistant:- Abuswaleh. Idris Tomno -DPP Baya Edison Thoya.