https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/377

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E409 OF 2024** **REPUBLIC VERSUS SIMON DIFFU WANYAMA** **JUDGMENT** 1. The accused has been charged with the offence of grievous harm contrary to section 234 of the Penal Code. Particulars are that on the 1st day of November 2024 at about 1900hrs at Lugale in Bunyala Sub-County within Busia County, the accused unlawfully did grievous harm to Oliver Sango. 2. Accused faced a second count of handling stolen property contrary to section 322(1)(2) of the Penal Code. In particular, on the 2nd day of November 2024 at around 1200hrs in the Lugale area of Bunyala Sub-County within Busia County, the accused was found in possession of one black smartphone, make Itel, with reason or knowledge to believe it to be stolen property. 3. The accused denied the charges. ***Prosecution’s case*** 1. PW1 Oliver Sango testified to having been walking home around 7.00pm on 1/11/2024, lighting his path with his mobile phone, when suddenly someone grabbed his phone and, using a metal rod, hit him with the same at the back of his neck. The attacker then spoke after standing in front of him and called him a fool. That is when he realized the voice was that of the accused, he had differed with over arrears on his wages earned from their work together at a construction site. The accused attacked him for not paying him his money. He sought treatment at Port Victoria Hospital, where treatment notes were issued. An X-Ray was also done. He reported the incident at Port Victoria Police Station and was issued with a P3 Form, which was filled. accused was later arrested. He did not see the accused at the time of the night but recognized him by the sound of his voice and even called him by his village name, Progan. After the attack, his daughter Faith Anyango found him and his wife and Uncle escorted him to the hospital. He had no grudge with the accused. 2. PW2 Faith Anyano Makhulo stated that she was heading home from the shops at around 7.00pm on 1/11/2024 when she saw people gathered at a culvert with people surrounding someone who seemed to have been asking for help. She drew nearer, found the person to be her father, and saw the accused, whom she knew as Progan, walking away with a rod in his hand. Her father was profusely bleeding from an injury on his neck. She went and called her mother from home, who rescued the complainant. The scene was a culvert at the school entrance. That is where she found her father bleeding from the injury on his neck. There was no watchman near the gate at the time and no one else present. She did not see the accused assault her father, but saw him walking away with a rod in his hand. 3. PW3 Celestine Akinyi, complainant’s wife, stated to have been at home at around 7.00pm cooking when her daughter, PW2, informed her that complainant had been hurt and was lying at the culvert near Lugale School. She rushed there and found complainant sitting, bleeding from his mouth. He informed her that Progan had assaulted him for failing to give him his wages, which he stated to have given her to settle a debt and refused to refund accused later. Accused went by the name Progan in their village. She called their uncle, who assisted in escorting the complainant to the hospital. They have known the accused since 2017, and the complainant recognised him in the dark from his voice. The complainant had also reported to her that the accused took his phone away for failing to pay his money after the assault. There was no security officer at the school gate. 4. PW4 Colins Orima Apadet, a clinical officer working at Port Victoria Sub County Hospital, testified that on 1/11/2024 at around 9.50 p.m., the complainant herein was presented to the hospital with a history of being assaulted by someone well known to him the same day at around 8.00pm. He examined the complainant and found him with a swollen left cheek which was painful, a cut wound on the lip and a loose tooth which was bleeding. The complainant wore a yellow checked shirt with bloodstains, and the trousers appeared dusty. He found the complainant had a swelling on his left jaw with a loose incisor and canine which were both tender and bleeding; the left side of the complainant’s neck was stiff and swollen, and the lower lip was both bruised and swollen. An X-ray of the neck was performed on 4/11/2024. It showed fractures on the. 2,3 and 4 cervical vertebrae resulting from the assault. He filled the treatment notes as well as the P3 Form, which he produced as Pex no. 1 and 2, respectively. he produced the X-Ray film as Pex no. 3. He classified the injuries as grievous harm, and the probable weapon used was a blunt object. He tamped the treatment book the following day, as the stamp was only available during the day hours. The orthopaedic trauma surgeon treated him the following day after the X-Ray was done and the film was presented to him. he used his expertise to determine the nature of the injuries even before the X-Ray was done. 5. PW5 David Apolo Okhalo stated that on 1/11/2024 at around 9.00pm, he received a call from complainant’s wife informing him that complainant had been assaulted and was bleeding from his mouth. He went to the complainant and found him at the culvert next to Lugale School, bleeding. The complainant reported to him that the accused had assaulted him with a metal rod and taken away his phone. They escorted the complainant to the hospital, where he was treated. The complainant had loose teeth and a swollen left jaw. The matter was reported to the police. The following day, an X-Ray was conducted, and later, police arrested the accused. The accused assaulted the complainant over a debt of Kshs 500/=. He did not frame accused at all. 6. PW6 87880 PC Abraham Naro, the investigating officer, testified to having been assigned this matter after finding the same minuted to him in the occurrence book on 2/11/2024. The complainant presented himself at the station and narrated how he was assaulted on his way home the previous day at around 7.00 pm by the accused herein with a metal rod over a debt which the complainant owed him. The accused had also taken away the complainant’s phone, make Itel, black in colour. The accused had hit the complainant with the metal rod on his right cheek; the complainant fell, and the accused proceeded to hit the complainant on his neck, causing him to lose consciousness. The complainant later woke up and was escorted to the hospital, where he was admitted and discharged the following day. He issued the complainant with a P3 Form, which was filled out, and the nature of the injuries was found to be grievous harm. He arrested the accused and recovered the complainant’s mobile phone from him, which he produced as Pex no. 3. PW3 was arrested for failing to attend court sessions, thereby trying to frustrate the case. The metal rod was never recovered from the accused. The accused led the police to his house after being. arrested at a construction site and handed them the complainant’s phone. ***Defence evidence*** 1. DW1 Simon Diffu Wanyama testified that he understood the charges against him well and that the complainant is his friend and neighbour. That on 11/10/24, the complainant and he worked at a construction site to dig a foundation for a school. It was actually the complainant who asked him to help him execute the works. They were to be both paid Kshs 2,000. The following day, the complainant only gave him Kshs 500 and promised to pay the balance later. On 24/10/24, he demanded his balance from the complainant, which the complainant failed to pay him. On 1/11/24, he was pressed financially and decided to look for the complainant to demand the balance owed to him. he found the complainant on his way home along the road on the phone. He tried to greet complainant, but complainant ignored him. he then demanded money from complainant, who informed him that he would get nothing. He insisted he needed money and that is when complainant offered him his mobile phone to get the money from it. He then left the complainant and left. Complainant then came after him and hit him with his fist on his face, took his phone and broke it. He attempted to throw another punch at him, but in self-defence, he hit the complainant, took his phone and left. The following day, he heard that he had badly injured the complainant with a metal rod, which allegations were not true. He was later arrested, and he handed over the complainant’s phone to them. He hit the complainant in self-defence. 2. DW2 John Ouma Khagono testified that he was the one who had contracted the complainant to dig a foundation at a construction site at a wage. The complainant had brought in the accused to help him with the work. He paid the complainant Kshs 1,500 and the following day paid a further Kshs 1,000, and on 17/10/24, a second further Kshs 1,000 upon conclusion of the work given. On 2/11/24, he received information that the accused had been arrested. The accused informed him that he took away the complainant’s phone after the complainant refused to pay him his wages. He did not witness the incident of the assault. He had no evidence of the payment of Kshs 3,000/- ***Analysis and determination*** 1. Based on the evidence on record, the key issues for determination are: 2. Whether the prosecution proved the offence of grievous harm contrary to section 234 of the Penal Code beyond reasonable doubt. 3. Whether the prosecution proved the offence of handling stolen property contrary to section 322(1)(2) of the Penal Code. ***Count I – Grievous Harm*** 1. S. 234 of the Penal Code provides, “***Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”*** In section 4 of the Penal Code, “grevious harm” is defined to include “maim” and to mean:- “***Any harm which amounts to a main or dangerous harm, or seriously or permanently injuries health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any extend or internal organ, membrane or sense.”*** 1. The offence of grievous harm requires proof that: 2. the complainant sustained grievous harm; 3. the injuries were unlawfully inflicted; and 4. the accused was the person who inflicted them. 5. There is no dispute that the complainant sustained grievous injuries. PW4, the clinical officer, produced the treatment notes, P3 Form and X-ray film showing fractures of the 2nd, 3rd and 4th cervical vertebrae, loose teeth, swelling of the jaw, bruising of the lip and neck injuries. He classified the injuries as grievous harm. His evidence was neither challenged nor contradicted. The principal issue is therefore identification. 6. Although PW1 stated that it was dark and he did not see his attacker, he testified that immediately after striking him, the attacker spoke, calling him a fool. PW1 recognized the voice as that of the accused, whom he had known for several years and with whom he had recently worked. He immediately associated the attack with their disagreement over unpaid wages. Voice identification is admissible provided the witness was sufficiently familiar with the voice and the circumstances permitted reliable recognition. PW1 knew the accused well and even referred to him by his village nickname "Progan." 7. Though the accused, in his evidence, did not dispute meeting the complainant on the material date and time, he disputed inflicting the grievous harm injuries. Could it therefore have been another person who possibly inflicted these injuries upon the complainant? The court notes the dangers of relying on the evidence of a single witness. In ***Abdulla Bin Wendo & Another vs Republic [1953] 20 EACA*** the court held *“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness, but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known the conditions favouring a correct identification were difficult.* In ***Ruto v Republic [2026] KEHC 1967 (KLR),*** A.K Ndungu, J, held that “*The law does not prohibit reliance on the evidence of a single witness provided the court warns itself and is satisfied that the evidence is credible.”,* 1. Looking at the case before me, it is apparent from the evidence of the complainant and the accused that they knew each other well. In fact, the accused, in his testimony, acknowledges that prior to the incident, the complainant was his friend and neighbour. In my considered view, the evidence that complainant positively recognized accused as his assailant stands unrebutted by any iota of evidence. There was no evidence that another person attacked complainant after accused, who admitted to having hit the complainant in self-defence. This then establishes beyond reasonable doubt that indeed, it was accused and no other person that inflicted the grievous injuries upon the complainant. 2. Further, this evidence is materially corroborated. PW2, the complainant's daughter, arrived moments after the assault. Although she did not witness the actual attack, she saw the accused walking away from the scene carrying a metal rod while her father lay bleeding. She already knew the accused as "Progan." Her evidence places the accused at the scene immediately after the assault. PW3 testified that upon reaching the scene, the complainant immediately named the accused as his assailant and explained that the assault arose from the dispute over unpaid wages. PW5 similarly testified that the complainant identified the accused as the attacker immediately after the incident while still bleeding at the scene. These were spontaneous reports made immediately after the assault, before there was any opportunity for fabrication. 3. The defence itself substantially reinforces the prosecution case. The accused admitted meeting the complainant at the material time over the unpaid wages. He admitted a physical confrontation occurred and admitted striking the complainant before leaving with the complainant's phone. His only defence was that he acted in self-defence. 4. The legal threshold for self-defence was set out in the case of ***Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR***, where the Court of Appeal held that “*the test is whether the accused honestly believed himself to be in imminent danger and whether the force used was reasonable in the circumstances”* 5. The accused alleged that he merely hit the complainant with his hand after being attacked first. However, the injuries documented by PW4 reveal fractured cervical vertebrae, loose teeth, neck swelling and extensive facial injuries. Such severe injuries are wholly inconsistent with the accused's account of a single defensive punch, even if, assumably, the same was thrown at him. 6. Moreover, the accused's version that the complainant voluntarily surrendered his phone as security for the debt is improbable. If indeed the complainant had willingly handed over the phone, there would have been no need for a violent confrontation culminating in the complainant sustaining life-threatening injuries. 7. The prosecution's version is also supported by motive. Both parties agreed that there existed a dispute over unpaid wages. Their disagreement is therefore not in dispute; only the manner in which it culminated differs. 8. Although the alleged metal rod was never recovered, recovery of the weapon in my considered view is not a legal requirement where there is credible direct and circumstantial evidence identifying the assailant and medical evidence establishes the nature of the injuries. 9. I therefore find that the prosecution proved beyond reasonable doubt that the accused unlawfully inflicted grievous harm upon the complainant. ***Count II – Handling Stolen Property*** 1. The accused was charged with handling stolen property under section 322 of the Penal Code. 2. The evidence, however, establishes that the complainant's phone was allegedly stolen during the same transaction in which the complainant was assaulted. 3. The investigating officer recovered the phone from the accused the following day after the accused led police to his house. Section 322 of the Penal Code creates the offence of handling stolen property by a person other than the thief. A person who is alleged to have stolen property in the course of the principal offence cannot simultaneously be convicted of handling that same property. The offence of handling contemplates subsequent dealing with property that has already been stolen by another person. 4. The prosecution's own evidence is that it was the accused who robbed or took the complainant's phone during the assault. If that evidence were accepted, then the accused could only have been charged with the principal stealing offence and not handling.Consequently, I find Count II legally unsustainable. ***Disposition*** 1. The prosecution proved beyond reasonable doubt that the accused unlawfully caused grievous harm to the complainant. The defence of self-defence is inconsistent with the overwhelming medical evidence and the surrounding circumstances and is rejected. 2. The charge of handling stolen property is defective in law because the prosecution alleges that the accused himself was the person who stole the phone. 3. The accused is hereby found guilty of the offence of grievous harm contrary to section 234 of the Penal Code and is convicted accordingly under section 215 of the Criminal Procedure Code. 4. The accused is found not guilty on the second count of handling stolen property contrary to section 322(1)(2) of the Penal Code and is acquitted under section 215 of the Criminal Procedure Code. Dated, signed and delivered at Port Victoria this 29th day of July 2026. **Hon. Anne Njeru** **SRM**