https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/143

Republic v Wanjala (Criminal Case E884 of 2022) [2026] KEMC 143 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEMC 143 (KLR) Republic of Kenya In the Bungoma Law Courts Criminal Case E884 of 2022 RN Maloba, SPM June 3, 2026 Between Republic Prosecutor and Samuel Elima Wanjala Accused Judgment 1.This ia a case of assault causing actual bodily harm contrary to Section 251 of the Penal Code. It was alleged by the prosecution thaty accused committed this offence on 27/07/2022 at Kimigui area within Mwibale Location , in Bungoma South Sub-COUNTY. He allegedly used blows and kicks to assault one Beatrice Nasienya thereby causing her actual bodioy harm 2.The accused pleaded not guilty to the offence and so, trial of the case was conducted to ascertain the truth of what transpired in relation to his culpability or otherwise. 3.In the prosecution’s case, those who testified were the complainant Beatrice Nasienya and her daughter Finarence Nelima ( PW1 and PW2 respectively. The others were Daniel Kisiangani Khaemba (PW3), the I.O CPL Kibet Birgen (PW4) and Mr Elias Adoka, the clinician (PW5). 4.The evidence given against the accused person was that on the material day of the incident, at about 5:40 pm, PW2 was selling maize at Duka Moja shopping centre when accused came and started to touch her in an indecent manner while at the same time, hurling abuses at her. Angered by this, she started crying while heading back home to report the same to her mother. She and accused person were related by blood. 5.Upon reaching home, she met the mother to whom, she reported the matter. In response, her mother who is the complainant herein, decided that they should proceed to accused person’s home to find out what was wrong with him. When accused saw them approaching his gate, he became agitated and started to threaten them saying, ‘‘noboby will enter my inside my home.” 6.Afterwards, he confronted the complainant, pushed to her to the ground before he started to kick and punch her on the chest, head and left hand. This led her to suffer injuries including a broken left ring finger. The same resulted into a deformity. The complainant was later rescued by members of the public who were passing by. 7.From there, the complainant and her daughter, PW2, visited the police station and made a report on the incident. The complainant later got treated for her injuries at Mech Meru Dispensary. 8.PW3 confirmed witnessing the incident which occurred on the material day between accused and PW2 at Duka Moja area but not the subsequent one which transpired outside accused person’s home when he allegedly assaulted the complainant on the same day. 9.Mr. Adoka(PW5) of Bungoma CRH, produced a P3 form and treatement notes which showed that the complainant sustained injuries as follows; Pain on the chest. Dislocated 3rd finger of the left hand. 10.Approx. age of these injuries was 4 days. He filled the P3 form on 30/06/2022. He recommended surgery to correct the dislocation. His assessment was that the degree of the injuries aforesaid was main. The same were likely caused by a blunt object. The defence case 11.Accused defended himself over those allegations in his own testimony and also called two witnesses namely, Davis Juma Kasembeli (DW2) and Doreen Wasike(DW3). 12.In his evidence, accused stated that on the material day at about 7:00 pm, he was attacked in his home by the complainant and her three children. They came while armed with a stick and beat him on the right shoulder and slapped him on the right cheek. Because he had previous injuries from a RTA, he was helpless and unable to defend himself so he just screamed for help whereby, his neighbours came to his rescue. Upon the neighbours arriving, the complainant and her children promptly took off. As the complainant was running away, she slid and fell down. As a result, she sustained some injuries. 13.After the incident, he went to the police station and made his report against the complainant. Upon visiting the hospital for treatment, he went back to the police station to procure a P3 from but was denied the same because initially, he could not raise the Kshs. 1,000/= that was being demanded by the police officers and secondly, because, the complainant’s case had already been processed against him. 14.In his evidence, DW2 claimed to have seen the complainant and her children assaulting the accused at his home on the material day but at a different time at about 1:40 pm. 15.On her part, DW3 similarly explained that he witnessed the said incident but at about 7:00- 8:00 pm. Her evidence corroborated that of accused. Issues for determination 16.The accused person has admitted that he and the complainant had an encounter on the material day. However, he accused her of being the aggressor instead. Further still, he gave a different account concerning the time of the occurrence of the alleged incident. 17.From evidence on record, the issues for determination are;1.Whether the complainant was assaulted on the material day?2.Whether she suffered any injuries as a result of the same and of what degree?3.Whether the accused was the perpetrator?4.Whether the accused is guilty as charged? Analysis & Determination 18.This case was brought under Section 251 of the Penal Code. Under this section, it is provided that,Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years. “Under the definition in Section 2 of the penal Code, “harm” means any bodily hurt, disease or disorder whether permanent or temporary” 19.From the said provisions, the ingredients of this offence are;i.Assaulted the complainant or victim, whichii.Occasioned actual bodily harm. (See the case of Ndaa -v- Republic [1985] KECA 3 (eKLR) and Vicky Chelagat -v- Republic [2022]KEHC932(eKLR). 20.In addition to that, identity of the perpetrator must also be proved by the prosecution beyond reasonable doubt- see Mutavi & 5 others v Republic (Criminal Appeal E095 of 2024) [2026] KEHC 6557 (KLR) (15 May 2026) (Judgment). In the said case, the court held that;“Identification or recognition of the offender is a crucial element in proof of a criminal offence and it should not be a matter of chance or assumption.” 21.In this case, the treatment notes produced by the prosecution through PW5 showed that the complainant sustained injuries which amounted to maim. Specifically noted by the clinician were injuries in the nature of chest pain and a dislocated 3rd finger of the left hand. The dislocation needed surgery to correct. 22.In the circumstances, I would find that the allegation of physical harm was actually proved. In fact, the nature of those injuries was grievous as opposed to just ordinary assault. Thus, the correct charge should have been brought under Section 234 of the Penal Code instead. All the same, the court is minded to determine the matter on the basis of the charge before it and so, it will proceed to consider the next ingredient of the same. 23.The next ingredient question is about whether the assault was unlawful. On this one, the evidence which was adduced by the complainant was that, she was physically beaten by somebody she knew well. The said assailant, pushed her down and then began punching and kicking her on the chest, head and left hand. The said attack was confirmed by her daughter PW2. Upon the case being reported to the police, it was investigated by PW4 and from his investigations, he was able to verify the same from eye witness accounts. 24.Therefore, it is the court’s finding that the assault was unlawful. It was unjustified and plainly unlawful. There was no evidence of self defence or provocation prior to the attack. 25.Lastly, it is to be determined if accused was the perpetrator or not. 26.According to the complainant, the accused assaulted her outside his gate when she and PW2 went there to inquire why he had molested and abused the latter. Her accounts on who assaulted her and what exactly transpired was duly corroborated by PW2 who was with her throughout. 27.But the accused gave a different account over the matter and played the victim instead. His evidence was that he was attacked by the complainant and her three children on the material day at about 7:00- 8:00pm. According to him, that attack happened in his home that evening. His testimony was corroborated by DW3 but not entirely by DW2. In DW2’s evidence, the attack on accused by the complainant and her children occurred on that day at about 1:30 pm. This contradiction renders the defence evidence unreliable in totality. As a result, it is doubted if accused was indeed attacked at all as alleged or if indeed true, it certainly amounts to a different incident altogether which must be looked at separately in another case. 28.In view of this, his defence is dismissed for being contradictory, unreliable and/ or misplaced. The matters he raised may be related but nonetheless different as they constitute another transaction altogether if true. 29.On the whole, I do find that the prosecution has proved its case against the accused person beyond reasonable doubt. 30.Consequently, the accused person is found guilty and is convicted under section 215 CPC of assault causing actual bodily harm contrary to section 251 of the Penal Code. R.B.N. MALOBA(MS)-SPMDATED & DELIVERED IN OPEN COURT THIS DAY OF 3RD DAY OF JUNE 2026In the presence of;Pros- Ms. AchiengC/Asst- Mr. AggreyAccused- in personInterpretation- English- KiswahiliR.B.N. MALOBA(MS)-SPM