Republic v Kwoba (Criminal Case E332 of 2025) [2026] KEMC 570 (KLR)

7. He declined to hand over the bicycle to the Accused Person, leading to a struggle between him and the Accused Person. The Accused Person whistled. Another man joined the Accused Person while armed with a knife and holding a torch. The Accused Person and the other man beat him up. He also noticed that the Accused Person was armed with a knife. 8. His assailants then stabbed him with a knife in his stomach, causing his intestines to protrude. He screamed for help when PW2 responded and chased after his assailants. PW2 managed to arrest the Accused Person and two other assailants in a nearby thicket. He added that PW2 identified the Accused Person, leading to the Accused Person’s arrest. 9. The complainant added that he walked to his home, where he lost consciousness. He regained consciousness at Life Care Hospital Bungoma where he underwent surgery. He reported the matter at Bumula Police Station after being discharged from the hospital, 10. He reiterated that he identified the Accused Person thanks to the light from the flashlight. He also identified the Accused Person at the police station after his arrest. 11. PW2 David Mulongo Simiyu recalled that on 30th January 2025, at around 1930hrs, while headed to his home, he heard someone screaming: “wananiua,wananiua…” He rushed in the direction from which the screams were coming when he found three boys at the scene. The three boys fled from the scene on seeing him. He gave chase but managed to catch up with the complainant, who told him that he had been in the company of the Accused Person. 12. He also noticed that the complainant had stab wounds inflicted by the other boys who had fled. 13. He added in cross-examination that the complainant told him that the Accused Person had attacked him that day. 14. PW3 Peter Wanganya Khadeko is a clinical officer at Bumula Sub-County Hospital. He examined the complainant at the facility on 06th February 2025, when the complainant informed him that he had been attacked on 30 th January 2025 by three persons well known to him who stabbed him with a knife, leading to his admission at Life Care Hospital Bungoma.

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15. He filled the complainant’s P3 form dated 06th February 2025 and produced the same as an exhibit. He also produced the complainant’s treatment notes dated 06 th February 2025 from Bumula Sub-County Hospital as an exhibit. 16. He assessed the injuries sustained by the complainant as grievous. He added that a sharp object was the probable weapon used to inflict the injuries sustained by the Complainant. 17. PW4 Masaba Eric a Clinical Officer at Webuye District Hospital and Life Care Hospital Bungoma was stood down by the prosecution. He was never recalled to complete his testimony. 18. PW5 Dr. Havi Mudaki of Lifecare Hospital, Bungoma, produced the complainant’s treatment notes, discharge summary, and radiology report showing that the complainant was treated at the facility on 31st January 2025 with a history of having been assaulted with a sharp object on the left buttock and left chest. 19. He added that an ultrasound revealed that the complainant had a penetrating abdominal injury, which necessitated surgery. 20. PW6 No. 235494 PC Paul Agutu of Bumula Police Station investigated this case. He stated that the complainant and his father visited the police station on 06 th February 2025 and reported that the complainant had been attacked by three people who wanted to snatch his bicycle. He added that the complainant stated that he could identify his assailants by physical appearance. 21. He also stated that PW2 chased after the complainant’s assailants on the date of the incident and identified the Accused Person. He added that PW1 and PW2 led them to the Accused Person, leading to the Accused Person’s arrest. 22. He further testified that PW2 clearly saw the Accused Person since they were neighbours who were well known to each other. 23. He stated in cross-examination that PW2 told him that he saw the Accused Person. He denied that PW2 was told about the Accused Person’s identity by another person. He reiterated that PW2 was the one who identified the Accused Person. 24. In re-examination, he stated that in the initial report made by the complainant at the police station, the complainant reported to the police station that he could physically identify his assailants. He added that the complainant identified the Accused Person after his discharge from the hospital.

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Defence Case 25.At the close of the prosecution's case, this court found and held that the Accused Person had a case to answer. 26.Directions under section 211 of the Criminal Procedure Code were taken in Kiswahili in the presence of the Accused Person when the Accused Person elected to remain silent per article 50 (2) (i) of the Constitution. 27.It is given that where an Accused Person elects to remain silent, the court is still obligated to determine whether the prosecution proved its case against the Accused Person beyond reasonable doubt. This court draws inspiration from David Ochieng Aketch v Republic [2015] eKLR, where the court observed that; “The Appellant on being put on his defence he opted to keep quiet. The right to keep quiet is a constitution right enshrined in Article 50 (2) (1) of the Constitution of Kenya 2010. It is one of the components of a fair trial neither should failure to testify be taken as an admission of guilty on an accused part. The trial Court is under a duty in such situation to evaluate the prosecution’s evidence and ensure that the prosecution has proved its case beyond any reasonable doubts…” ANALYSIS AND DETERMINATION 28. This court has given due regard to the evidence on record. It is this court’s humble view that the only issue for determination is whether the prosecution proved their case against the Accused Person beyond reasonable doubt. 29. The Accused Person faces a charge of grievous harm contrary to section 234 of the Penal Code, which provides as follows: ‘Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life’

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30. Section 4 of the Act defines grievous harm as; ‘any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense’. Further, the same section defines maim as ‘the destruction or permanent disabling of any external or internal organ, member or sense’. 31. In Pius Mutua Mbuvi Vs Republic (2021) eKLR, the court gave the ingredients that the prosecution is obligated to satisfy in proving the charge of grievous harm. These ingredients are: a) That the victim sustained grievous harm b) The accused caused or participated in causing the grievous harm c) The harm was caused unlawfully 32. The above ingredients of the offence herein were restated in Kangogo v Republic (Criminal Appeal E030 of 2024) [2025] KEHC 5742 (KLR). 33. This court will now proceed to determine whether the prosecution proved beyond reasonable doubt the said ingredients of the offence herein sequentially. (a) The victim sustained grievous harm 34. The nature of grievous harm is defined by section 4 of The Penal Code as any harm which amounts to a maim or dangerous harm or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement or to a permanent or serious injury to any external or internal organ, membrane, or sense. 35. The definition of grievous harm above shows that the Penal Code adopted a disjunctive definition of grievous harm. That is to mean that where an injury meets any of the various definitions of grievous harm under section 4 of the Penal Code, such an injury will constitute an injury assessed as grievous harm. The position taken by this court is fortified by the Court of Appeal’s finding in John Oketch Abongo v Republic [2000] eKLR, where the court held as follows:

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“…We are satisfied that the complainant's injury amounted to grievous harm as defined in the Penal Code. The definition contains several ingredients of what constitutes grievous harm. We are of the opinion that the presence of any one of these ingredients would suffice to disclose grievous harm. Here, we are satisfied that the complainant's injury did amount to dangerous or serious injury to health both of which are ingredients contained in the definition.” 36. In this case, PW3 and PW5 produced the complainant’s treatment notes, discharge summary, and a radiology report all dated 30th January 2025 as well as the complainant’s P3 form and an outpatient card from Bumula Sub – County Hospital, all dated 06 th February 2025 sustained stab wounds to the left chest and the left buttock on the date of the incident. The said medical documents also show that the penetrating abdominal injury sustained by the complainant caused the complainant to undergo a corrective surgical procedure, resulting in the stitching of the stab wounds. 37. This court takes judicial notice of the fact that a stitched wound inevitably leads to a scar on healing. A scar causes permanent disfiguration of the skin. 38. PW3 assessed the injuries sustained by PW1 as grievous harm. There is no evidence on record to controvert PW3’s assessment of the degree of the injuries sustained by PW1 39. The permanent disfiguring of the complainant’s skin as a result of the injuries he sustained during the attack also falls within the definition of grievous harm per section 4 of the Penal Code. 40. In the circumstances, this court finds and holds that the prosecution proved beyond reasonable doubt that the assault occasioned on PW1 on the date of the incident caused him to sustain grievous bodily harm within the meaning of section 4 of the Penal Code. (b) The harm was caused unlawfully 41. This ingredient of the offence herein requires proof that the grievous harm injuries sustained by PW1 were caused unlawfully. This means that the same was without legal justification or excuse.

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42. An injury can be inflicted on a person lawfully where such an injury is inflicted by the assailant in self-defense, during the protection of another person from harm, or to prevent the destruction of property. 43. The facts of this case are that the complainant was assaulted by his assailants when the assailants attempted to rob him of his bicycle. Clearly, the complainant was not posing any danger to any person or property at the time of the incident. There was no justification whatsoever for the complainant to be assaulted on the date of the incident. 44. In view of the above reasons, this court finds and holds that the grievous harm inflicted on the complainant by his assailants was unlawfully caused. (c)The Accused Person caused or participated in causing the grievous harm 45. The prosecution sought to rely on PW1, PW2, and PW6’s evidence to identify the Accused Person as the perpetrator of the offence herein. 46. It is given that the fact that the Accused Person denied the charge facing him shows that the Accused Person disputed his identification as the perpetrator of the offence herein. In Faith Muthoni M’ngondu & 3 others v Republic [2018] eKLR, the Court of Appeal, while addressing itself to the principles applicable where identification of a perpetrator is disputed, stated; “The guiding principles that the learned Judges took into consideration when addressing the appellants’ challenges to their identification/recognition at the scene of the robbery are the same principles we are enjoined to apply in determining the same issue as now placed before us. These have now been crystallized in a long line of cases. See Cleophas Otieno Wamunga versus Republic [1989] KLR; Paul Etole & Another versus Republic [2001] eKLR; and Francis Kariuki Njuru & 7 Others versus Republic Criminal Appeal No. 6 of 2000 (UR). They may be summarized as follows:(i)Evidence of visual identification in criminal cases can bring about miscarriage of justice. It is for this reason that a court is enjoined to examine such evidence carefully to minimize such danger.

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(ii)Whenever the case against the defendant depends wholly or to a great extent on the correctness of one or more identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of such identification/recognition. (iii)The court has an obligation to examine closely, the circumstances in which the identification by each witness come to be made. (iv)The court also had a duty to remind itself of any specific weaknesses which may have appeared in such identification evidence. (v)It is true that recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knew, the court should remind itself that mistakes in recognition of close relatives and friends are sometimes made. (vi)Evidence relating to identification has to be scrutinized carefully and should only be accepted upon if the court is satisfied that the identification was positive and free from any possibility of error. (vii)Among the factors surrounding evidence of identification/recognition that a court is required to inquire into is whether the witnesses gave either the description or the names of the attackers to either the police or persons who come to the scene of the attack soon after the attack and at the earliest opportunity”.(Emphasis added) 47. This court has fully appreciated the principles in the Faith Muthoni M’ngondu case (supra). This court will now proceed to determine whether the evidence on record on the Accused’s identification passes the test in the authority above. 48. Whereas the complainant testified that it was PW2 who identified the Accused Person, PW2 testified that it was the complainant who told him that he had been assaulted by the Accused Person. Further, whereas the complainant testified that PW2 chased after his assailants and arrested the Accused Person and two other people, PW2 testified that he only caught up with the complainant on the date of the incident when he responded to the complainant’s screams.

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49. PW2 never stated that he saw the Accused Person at the scene of the crime on the date of the incident. The investigating officer (PW6), on his part, reiterated the complainant’s evidence that PW2 was the one who identified the Accused Person. 50. A scrutiny of the prosecution’s evidence above on the Accused Person’s identification shows that the said evidence was marred with contradictions. The question of how a court should deal with contradictions in witnesses’ testimony was answered by the Court of Appeal in Watu v Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR), as follows: “However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. In DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt: “In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 51. Guided by the authority above, this court is obligated to determine whether the contradictions in the prosecution witnesses’ testimony on the Accused Person’s identification were due to the fallibility of human recollection, thus minor, or whether the said contradictions went to the root of the matter. 52. The complainant admitted that he met the Accused Person for the first time on the date of the incident. He added that he managed to identify the Accused Person thanks to the light from the flashlight that the Accused Person and his co-assailants had. It should also be noted that

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the encounter between the complainant and his assailants occurred when darkness was setting in and in very turbulent circumstances. 53. It is also important to note that when the complainant was discharged from the hospital, he reported at Bumula Police Station that he had been attacked by people known to him by physical appearance. This was when the incident was at least fresh in his mind. 54. There is nothing on record to suggest that the complainant gave PW2 a physical description of the Accused Person to PW2 or the police during his initial report to the police. In Tekerali s/o Korongozi & 4 Others vs. Rep (1952) 19 EACA 259, the court stated thus on the importance of a complainant’s initial report about an incident: “Their importance [of the first report] can scarcely be exaggerated, for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [come] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.” 55. One wonders why the complainant did not expressly inform the police during the initial report that he had been assaulted by the Accused Person, as alleged by PW2. 56. The complainant having admitted that he did not inform PW2 and the police that the Accused Person attacked him, it follows that PW2’s evidence to the effect that the complainant informed him that he had been attacked by the Accused Person is not credible. 57. Further, PW2’s denial that he did not arrest the Accused Person in a thicket on the date of the incident also makes the complainant’s evidence and the investigating officer’s evidence on the Accused Person’s identity incredible. 58. It would appear that the investigating officer simply sought to rely on the complainant’s identification of the Accused Person after his arrest for this court to find that the Accused Person was the perpetrator of the offence herein. Such identification can be likened to dock identification, which has been described by various Courts as unreliable and as “the worst form of identification”. For instance, the Court of Appeal, in Gabriel Kamau Njoroge –vsRepublic (1982-1988) 1KAR 1134, observed as follows regarding dock identification:

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“A dock identification is generally worthless, and the Court should not place much reliance on it unless this has been preceded by a properly conducted parade. A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.” 59. Given the circumstances of this case, this court is of the considered view that this was a proper case for the investigating officer to conduct an identification parade. 60. The contradictory evidence on record on the Accused Person’s identification is not minor. They are grave contradictions. Such contradictions cannot be attributed to the fallibility of human recollection. Those contradictions are so substantial and fundamental to the Accused Person’s identity in this matter. The contradictions go to the root of this matter. 61. In light of this court’s scrutiny of the evidence on the Accused Person’s identification and analysis thereof, this court finds that the evidence on record on the Accused Person’s identification was far from satisfactory. Therefore, this court is unable to state with any degree of certainty that the Accused Person’s identification was positive and free from any possibility of error. 62. There are reasonable doubts on whether the Accused Person assaulted the complainant on the date of the incident. Those doubts must be resolved in the Accused Person’s favour. DETERMINATION 63. The upshot of the foregoing is that the Accused Person is acquitted under section 215 of the Criminal Procedure Code of the offence of grievous harm contrary to section 234 of the Penal Code. 64. Judgment accordingly. Judgment read, signed, and delivered in open Court at Bungoma this 15th day of April 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Maroro for ODPP Accused Person

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C/A: Mr. Rioba

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