Republic v Twahir (Criminal Case E209 of 2025) [2026] KEMC 124 (KLR) (21 May 2026) (Judgment)

Republic v Twahir (Criminal Case E209 of 2025) [2026] KEMC 124 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEMC 124 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E209 of 2025 FM Mulama, RM May 21, 2026 Between Republic Prosecutor and Twahir Mahmud Twahir Accused Judgment A. Background. 1.The accused was initially charged with 5 counts of threatening to kill, assault, resisting arrest by police officers and being in possession of narcotic drugs and refusing to permit finger prints to be taken however the counts for threatening and refusing to permit finger prints to be taken were withdrawn on 11/11/2025 and 30/10/2025 respectively. 2.The accused now faces 3 counts to wit assaulting a police officer contrary to section 103(a) of the National Police Service Act, resisting arrest by police officers contrary to section 103(A)of the National Police Service Act and being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the narcotic drugs and psychotropic substances control Act. 3.The facts in support were that on 12/10/2025 at around 2000hours while the police officers were arresting the accused, he assaulted 2 police officers by punching one on the lips and kicking the other thereby occasioning them injuries and that while at it resisted arrest by refusing to be handcuffed and be escorted to police station and finally that upon arrest, a search was conducted on him and 4 sachets of substances suspected to be bhang were recovered from him. 4.3 witnesses testified in favour of the prosecution case and upon being place on defence, the accused gave sworn testimony and called 3 witnesses. 5.I have considered the offence, the respective cases and the case law relating to these 3 offences facing the accused. The Prosecution’s case. 6.It is the evidence of Pw 1 PC Fifary Nyachio that on the material date while in the company of PC Kazungu, Iftin(Pw2) and Katana while at KPA Jetty saw 2 men and upon realizing they were police officers, they escaped but one was arrested and upon conducting a search on him from his right pocket he recovered substance he suspected to be bhang and upon that discovery he became violent and refused to be handcuffed and in the process he hit PC Iftin(Pw 2) on his lips using his fist and later hit him on his left hand using his leg and PC Katana on seeing this came to their rescue and they managed to finally arrest him. 7.It was his testimony that despite handcuffing him, he refused to be escorted to the station but they finally managed to take him to the station and that while escorting him to the station the brother who had earlier escaped followed them while insulting them with unprinted insults. 8.Pw 2 PC Iftin Abdile in corroborating the evidence of Pw 1 confirmed that as a result of the struggle the accused hit him on the lips and he started bleeding. 9.Pw 3 Dr. Kombo confirmed that the complainants sustained injuries that were assessed as harm and produced p3 forms and treatment notes for the complainants. Defence case 10.In his sworn testimony the accused admitted that on the material date and time they were at KPA jetty with Dw 2 after they had left Riadha mosque and had come to use the public wifi in that area. That while they were walking someone grabbed him from behind and on looking it was Pw1 and who was with 2 other officers and he was handcuffed immediately and upon being asked why he was being arrested, he was not told by any of the officers. He pleaded with them to let him be as he had a court case the following day in court where Pw 1 is the IO and would attend court but his call was not heeded to. He stated that he did not injure any of the officers and was not found with the substances alleged and that he cooperated with the police when he was being arrested and that to the contrary it is him who was injured and he produced treatment notes and an ultra sound report and a P3 form as exhibits. 11.It was his testimony that he does not use or consume bhang and he has never smoked bhang and there is no chance that he could have bhang yet he does not use it and that the case has been framed on him due to a grudge that the police have not only with him but his entire family. He was not cross examined. 12.Dw 2 Samir Mohamud a security guard stated that he was aware the accused was injured by police on the 12/10/2025 an accident he witnessed as he was walking past the scene on the material day when he saw 3 officers surround the accused and Pw 1 pushed the accused to the ground and he fell and then placed his knee on the accused chest as he grabbed his private parts and he could hear the accused crying and/or scream in pain until people started gathering around the area and that is when he was lifted of the ground and escorted to the police station. Similarly, he was not cross examined. 13.Dw 3 Amal Mahmoud Twahir Abubakar was with Dw1 and who is his brother stated that on the material date and time 3 police officers came and arrested the accused and upon conducting a search on him recovered nothing and upon the accused asking why he was being arrested and yet he had another case the following day he was not answered and they asked to handcuff him and which he cooperated and thereafter PW1 pushed him to the ground and thereafter put his knee on the accused’s chest and grabbed his private parts and the accused was heard crying in pain and when the crowds started moving closer to the area he was lifted up from the ground and escorted to the police station. He further stated that he was at the scene at the time of the arrest and search and no bhang was recovered from him and that he never resisted any arrest. 14.Dw 4 Zeinab Omar was at the scene and witnessed the arrest of the accused and witnessed the accused being pushed to the ground and his private parts grabbed by one officer and the accused cried in pain but was later escorted to the police station. She was also not cross examined. Effectively all defence witnesses were not cross examined. B. Issue For Determination. 15.This court has identified the following issues for determination.a.Whether the accused assaulted 2 police officers.b.Whether the accused resisted the arrest by police officers.c.Whether the accused was in possession of narcotic drug namely 4 sachets of bhang. C. Analysis And Determination. Whether the accused person assaulted police officers. 16.It is the evidence of Pw 1 and 2 that on the material date and place the accused assaulted them as they were arresting him and that the accused hit Pw 1 on the forearm using his leg and hit Pw2 on his lips using his fist. Respective P3 forms and treatment notes were produced as exhibits. 17.The accused and all his witnesses who were not cross examined stated that infact it is the accused who was assaulted by Pw 2 who not only pushed the accused to the ground but placed his knee on his chest and grabbed his private parts and the accused was heard crying and/or screaming in pain. 18.The accused in support of his claim has produced treatment notes and ultra sound report that indicate that he complained of scrotal pain and even a scrotal ultra sound conducted and the impression shown was a bilateral hydrocele. 19.The defence witnesses while perfectly corroborating each other raised critical issues that dented the prosecution’s case and the fact that their testimonies were not tested by cross examination, I am convinced that the defence gave a credible account of events of what really transpired on the material day. 20.Dw 2 and 3 agree that Pw 2 pushed the accused to the ground. Ordinarily when you are pushed to the ground unknowingly and/or unexpectedly, there is no known formular or position one will fall with and more often than not the one pushed would try to avoid being injured even as he falls down. 21.It is now apparent that Pw 2 pushed the accused to the ground as confirmed by all the defence witnesses some of whom were just passers-by and as if that was not enough Pw 2 then placed his knee to the chest of the accused person. At this time according to the accused and Dw3 he had already being handcuffed. To put this into perspective, by the time the accused was being pushed to the ground, he had already been handcuffed and as such it is not possible that in the circumstances he was able to make his fist and injure Pw 1 and in the unlikely event that the pw1 and 2 were injured then it was as a result of a frolic of their own owing to how he handled the accused person. It was totally unnecessary. Having handcuffed the accused there was absolutely no reason to push him to the ground and further more place his knee on his chest. It was totally unnecessary and his actions gives credence to the issue of the grudge alluded to by the accused person. 22.Similarly in the unlikely event that Pw 1 was injured, he can also not blame the accused as since it is not stated that the accused threw the kick at Pw 1 before he was pushed to the ground, it is well possible that as he was pushed to the ground while handcuffed he might have unknowingly kicked Pw 1 and if not at that time then whilst Pw 2 had placed his knee to his chest, the accused in that state might have been throwing kicks especially after his private parts were grabbed and the most natural thing one can do in the circumstances is to throw his legs due to the pain that is associated with such grabbing and in the circumstances again the accused cannot be blamed. Had they not used excessive force to arrest him they would not be complaining of such injuries and the fact that they are not serious speaks to that fact. 23.In the end it is the finding of the court that the accused having been handcuffed before injuring any of the 2 police officers, he did not intentionally injure them and if any injuries were suffered then they were as a result of the excessive force the 2 officers deployed when arresting the accused person as I have illustrated hereinabove. This is further explained by the fact that the other officer was not injured and it leaves a lot to be desired why he never gave his side of the story in evidence. Whether the accused resisted the arrest of police officers. 24.It is the evidence of Pw 1 and 2 that the accused refused to be handcuffed and even after being handcuffed he refused to be escorted to the police station. 25.This is where the rubber meets the road and where the grudge is getting more and more clear. It is the evidence of Pw 1 that after the accused was handcuffed albeit after a struggle he thereafter sat on the ground and refused to be escorted to the police station but they somehow managed to walk him to the station. Pw 2 on his part states that the accused in refusing to be escorted to the police sat down and the police officers were then forced to carry him to upto the police station. Now was the accused carried to the police station or was he walked to the police station? A doubt already created in the prosecution case and we all know in whose favour such doubts are resolved. 26.Based on the doubt aforementioned, it is not clear in my mind that the accused resisted to be arrested when the uncontroverted evidence by all the defence witnesses is that the accused never resisted any arrest and infact that handcuffs were placed first before even the drama related to his arrest unfolded. 27.Similarly, I do find on that doubt alone, it is not clear to me beyond any doubt that the accused refused to be arrested. Pw 1 and 2 were at the scene and cannot talk about 2 versions of what happened when the accused was arrested. The accused did not in the circumstances resist arrest. Whether the accused was in possession of narcotic drug namely 4 sachets of bhang. 28.It is the evidence of Pw1 that upon conducting a search on the accused he retrieved from his right pocket 4 sachets of substances he suspected was bhang and upon subjecting the same to analysis, it was confirmed that they were indeed bhang. A report from the government analyst was produced in evidence. 29.The accused in defence asserted and strongly so that he does not use and/or smoke bhang and most importantly that upon search being conducted on him no bhang was recovered from any of his pocket. Dw 3 was present when a search was conducted and also confirms that the accused had no such sachets with him. 30.Since I have already made an adverse finding especially as to how the accused was arrested, this is akin to a poisoned chalice. Anything out of it is poisonous. 31.All the evidence as presented by the defence witnesses point to a possible planting of the 4 sachets on the accused person. Dw 3 who was present at the scene and witnessed the search stated that nothing was recovered from the accused. This evidence was not challenged by cross examination. 32.In the end I do find that that the accused was not in possession of 4 sachets bhang. 33.As I conclude this decision, it is clear and this court based on the evidence by the defence, the 2 police officers used excess force when arresting the accused and had no absolute reason to do so as the evidence by the defence witnesses is that the accused even after being handcuffed he was pushed to the ground for no apparent reason and as if that is not enough, a knee was put to his chest and his private parts grabbed a fact confirmed by the ultra sound scan report. 34.In the said report dated 1/11/2025, the radiographer opines that the impression is seen is a bilateral hydrocele. This is a condition where fluid accumulates in the sacs surrounding both testicles and which causes swelling and discomfort on both sides of the scrotum and for men who have in one way or the other experienced this pain know how painful it can be and possible effect it can have on one’s manhood. 35.Going for his balls was unnecessary especially after he had been handcuffed. This is use of excessive force and uncalled for. Even in instances where a suspect is violent, the law requires the police officers to use reasonable force when arresting a suspect. What happened to the accused person herein is no where close to reasonable considering the accused had already been handcuffed and was not a danger to any of the officers or members of the public. I hope this is the last of such treatment to arrested persons. D. Conclusion And Disposition. 36.Considering the evidence and the exhibits in this matter it is my finding and I so hold that the prosecution failed to prove the 3 counts facing the accused beyond reasonable doubt. 37.The net effect being that the accused person is not found guilty of the offence of resisting arrest by police officers contrary to section 103(A) of the National Police Service Act,2011, resisting arrest contrary to section 103(A) of the National Police Service Act,2011 and being in possession of narcotic drugs contrary to section 3(1) as read with Section 3(2)(a) of the Narcotic drugs and psychotropic substances control act and he is accordingly acquitted in each of those counts under section 215 of the CPC. 38.Orders accordingly. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS 21st DAY OF May 2026F.M. MULAMARESIDENT MAGISTRATEIn the presence of:Idris Tomno-DPPCourt Assistant:- Abuswaleh.Twahir Mahmud Twahir.