Republic v Wamalwa & another (Criminal Case E246 of 2025) [2026] KEMC 693 (KLR)

5. The assailants beat him on the right knee using their fimbos and cut him with a knife around his left eye, left nostril, and right palm. 6. He added that PW2 and PW3 fled when those assailants began assaulting him. He screamed causing his assailants to flee from the scene. He lost consciousness at the scene, only to be rescued the following day at 0500hrs by a person not known to him. He was treated at Nalondo Hospital, Lifecare Hospital Bungoma, and Bungoma County Referral Hospital, where his P3 form was filled. 7. He further stated that his assailants had lit torches at the time of the attack, which enabled him to identify the 2nd Accused Person, who is well known to him since he is his brother’s son. He added that the 2nd Accused Person later informed the police that the 1st Accused Person was among the complainant’s assailants. 8. PW2 Charles Wanjala Wepukhulu recalled that on the date of the incident, while in the company of the complainant and PW3, walking home, they were accosted by over ten young men. He could identify the 2nd Accused Person, given that the Accused Person who is his neighbour had lit a torch. He added that the young boys attacked them with knives, resulting in the complainant’s knife injuries. 9. He reiterated that he did not see the 1st Accused Person during the attack, and that it is the 2nd Accused Person who mentioned the 1st Accused Person to the police. He fled the scene during the attack. 10. He added during cross-examination that they reported the matter to the police after the incident, leading to the 2nd Accused Person’s arrest. 11. PW3 Vitalis Wekesa Nyongesa stated that on the material day, around ten boys accosted the complainant, PW2, and him. He further stated that the assailants had torches, which enabled him to identify the 2nd Accused Person, who is his neighbour. He fled during the attack. 12. He went to check on the complainant’s and PW2’s safety the following morning when he was told that the complainant had been injured during the attack and had gone to seek treatment from Nalondo hospital. 13. In cross-examination, he stated that their assailants had long pangas. He added that it was the 2nd Accused Person who disclosed to the police officers that the 1 st Accused Person was among the complainant’s assailants.

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14. He also stated that the witnesses identified the 2nd Accused Person, leading to his arrest. 15. PW4 No. 259261 PC Andrew Luyali of Nalondo Police Station testified on behalf of the investigating officer, one PC Luyali, who was reportedly unwell. 16. His testimony was that on 02nd March 2025 at around 1417hrs, the complainant reported to the police station that he had been assaulted on 28 th February 2025 at around 2100hrs in the company of PW2 and PW3 on their way home. 17. He also stated that the complainant saw his assailants since the assailants had lit torches. He added that PW2 and PW3 identified two of the complainant’s assailants. 18. He further stated that PW2 and PW3 took the 2 nd Accused Person to the police station several days after the attack. 19. It was his further testimony that the witnesses identified the Accused Persons during their statement recording and that the 2nd Accused Person mentioned the 1st Accused Person during interrogation. 20. PW5 Janet Wandili a Clinical Officer at Bungoma County Referral Hospital, treated the complainant at Nalondo Model Health Centre on 01st March 2025 for injuries including cuts on the left side of the face, left side of the mouth, right hand index finger, right knee, and a blunt injury on the back after reportedly being attacked by unknown people on 28 th February 2025 at around 2100hrs while walking back home. 21. She stitched the complainant’s cut wounds and referred the complainant for a CT scan. She also filled the complainant’s P3 form on 04th March 2025. 22. She assessed the injuries sustained by the complainant as grievous harm and formed an opinion that the complainant’s cut injuries had been inflicted by a sharp object. 23. She admitted in cross-examination that the complainant did not identify his assailants when he gave her his medical history. 24. PW6 Dr. Simiyu Wabomba produced the complainant’s radiology report dated 01 st March 2025 from Lifecare Hospital Bungoma, showing that the complainant visited the facility on 01st March 2025 with a history of trauma. He testified that the complainant sustained a head injury as a result of the attack, but the head injury neither interfered with his skull nor brain. Defence Case

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25.This court placed the Accused Persons on their defence after the close of the prosecution’s case. The Accused Persons elected to give unsworn testimony. 26.DW1 David Nato denied committing the offence herein. His testimony was that he was arrested by members of the public on 06 th March 2025, who led him to Nalondo Police Station, where he was reportedly beaten by police officers who were asking him if he knew the 2nd Accused Person. 27.DW2 Shadrack Barasa Situma also denied committing the offence herein. His testimony was that on 04th March 2026, while going to meet his father to collect school fees arrears, he was accosted by seven boys near river Sirare. The boys demanded money from him. He did not have any money, so the boys took his school uniform and began assaulting him. The boys then led him to a forest where they tortured him using panga slaps. 28.The boys thereafter led him to the complainant’s home, where drunkards beat him. He was then led to Nalondo Police Station, where police officers allegedly continued beating him. ANALYSIS AND DETERMINATION 29. 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 its case against the Accused Person beyond reasonable doubt. 30. 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’ 31. 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

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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’. 32. 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 33. The above ingredients of the offence herein were restated in Kangogo v Republic (Criminal Appeal E030 of 2024) [2025] KEHC 5742 (KLR). 34. 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 35. 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. 36. The definition of grievous harm above shows 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 Court of Appeal in John Oketch Abongo v Republic [2000] eKLR, shed light on this issue by stating as follows: “…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.”

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37. In this case, the complainant testified that the attack on the date of the incident caused him to sustain cut injuries and blunt injuries, and that he lost consciousness as a result of the assault. 38. The medical evidence placed before this court by PW5 and PW6 corroborated the complainant’s testimony on the injuries he sustained as a result of the incident. PW5 explained with clarity why she assessed the complainant’s injuries as grievous harm. This court finds no reason to disbelieve PW5’s assessment of the complainant’s injuries as grievous harm. 39. It is against this background that this court finds and holds that the prosecution proved beyond reasonable doubt that the complainant sustained grievous harm injuries on the date of the incident. (b) The harm was caused unlawfully 40. This ingredient of the offence herein requires proof that the grievous harm injuries occasioned on the complainant were caused unlawfully. That is to say that the injuries occasioned on the complainant must have been occasioned without legal justification or excuse. 41. The law recognizes instances where an injury can be occasioned to a person lawfully. Such instances include where 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, or to prevent a person from committing a felony. 42. The facts of this case are that the complainant was assaulted by his assailants when he was walking back to his home. It is abundantly clear that there was no lawful justification or excuse whatsoever for the complainant to be assaulted on the date of the incident. 43. In the circumstances, this court finds and holds that the grievous harm inflicted on the complainant by his assailants on the date of the incident was unlawfully caused. (c)The Accused Persons caused or participated in causing the grievous harm 44. The prosecution’s evidence is that the 2nd Accused Person who is a person well known to them was identified by the complainant, PW2, and PW3 on the date of the incident,

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thanks to the light from the torch that the 2 nd Accused Person had on the date of the incident. The prosecution witnesses were all in agreement that none of them saw or identified the 1st Accused Person at the scene of crime. Their evidence was that it was the 2nd Accused Person who disclosed to the police officers that the 1st Accused Person was part of the assailants who attacked the complainant on the date of the incident. 45. On the part of the Accused Persons, they denied assaulting the complainant on the date of the incident. They disputed the prosecution witnesses’ evidence on their identity. This begs the question whether the evidence on record positively identified the Accused Persons as the complainant’s assailants. 46. 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. (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.

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(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. The principles above can also be gleaned from R –vs- Turnbull and others (1976) 3 All ER 549, where Lord Widgery C.J. had this to say:“First, wherever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and the actual appearance?

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…………………. Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” 48. This court has fully appreciated the principles of identification of a perpetrator set out in the authorities above. This court will now proceed to determine whether the evidence on record on the Accused Persons' identification passes the test in the authorities above. 49. On the circumstances under which the 2 nd Accused Person’s recognition was made, this court notes that the incident happened at night. It is also worth noting that the witnesses did not state the intensity of the light from the torch that the 2 nd Accused Person reportedly had on the date of the incident. 50. There is no indication of how long PW2 and PW3 interacted with the complainant’s assailants at the scene of the crime for them to recognize the 2 nd Accused Person based on the unknown amount of light from the torch the 2 nd Accused Person reportedly had on the date of the incident. Given the fact that the complainant, PW2, and PW3 did not state whether they heard the 2nd Accused Person speaking on the night of the attack for them to identify him through his voice which most likely was familiar to them, this court doubts whether the circumstances obtaining at the time of the attack allowed PW2 and PW3 to positively recognize the 2nd Accused Person yet their first reaction was to flee from the scene when they were attacked. 51. It is also surprising that whereas the complainant, PW2 and PW3 testified that they identified the 2nd Accused Person at the time of the attack, the report made by the complainant to the police and the medical history the complainant gave PW5 just some hours after the attack shows that the complainant was forthright that he was assaulted by unknown persons (see the P3 form – Pexh.2 and the treatments notes from Nalondo Model Health Centre – Pexh.1). 52. The principles on identification of a perpetrator in the authorities above demand that a court must find out from the evidence on record on whether the complainant described his assailants or disclosed his assailants' names to the police or any other person immediately after the incident. 53. This court places reliance on Maitanyi v Republic (1986) KLR 198, where the Court of Appeal at page 201 held,

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“The strange fact is that many witnesses do not properly identify another person even in daylight... It is at least essential to ascertain the nature of light available. What sort of light, its size and its position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are unknown because they were not inquired into.... See Wanjohi & Others -vs- Republic (1989) KLR 415.”…“There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid or to the police……”(Emphasis added) 54. In Tekerali s/o Korongozi & 4 Others v 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.” (Emphasis added) 55. Guided by the authorities above, this court wonders why the complainant never told the police or PW5, who was his initial treating medic, that he had been attacked by the 2 nd Accused Person, whom he had reportedly recognized during the attack, and other unknown persons. That omission creates doubts on whether the 2 nd Accused Person was recognized or identified by the prosecution witnesses on the night of the incident. 56. Turning to the question of whether the 1 st Accused Person assaulted the complainant, the prosecution sought to rely on a reported admission or confession by the 2nd Accused Person that the 1st Accused Person was part of the complainant’s assailants. Simply put, the prosecution sought to rely on the 1st Accused Person’s co-accused’s alleged admission or confession for this court to convict the 1st Accused Person. 57. The prosecution did not place before this court the alleged admission or confession made by the 2nd Accused Person implicating the 1st Accused Person in this case. That aside, even if the alleged confession or

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admission could have been placed before this court, would that have been sufficient to convict the 1st Accused Person for the offence herein? 58. The question above was answered by the Court of Appeal in Peter Kinyua Ireri v Republic [2016] KECA 680 (KLR), where the court rendered itself thus: “Even assuming the High Court was right in finding that the appellant was incriminated by his co-accused, we hold the view that the evidence of the co-accused was of the weakest kind and incapable of supporting a conviction without corroboration. The law on the value of statements made against co-accused in a joint trial is well settled. In Anyangu & Others vs. Republic [1968] EA 239, the Court of Appeal for East Africa held as follows at Page 240: “A statement which does not amount to a confession is only evidence against the maker. If it is a confession and implicates a co-accused, it may, in a joint trial be “taken into consideration” against that co-accused. It is however, not only accomplice evidence but evidence of the ‘weakest kind’ (Anyona s/o Omolo and Another VR (1953) 20 EACA 318). A statement is not a confession unless it is sufficient by itself to justify the conviction of the person making it of the offence with which he is tried.” 16. Clearly, any statement purportedly made by Njiru in relation to the appellant was exculpatory and extra-judicial as it was not a confession properly so called. In the case of Joseph Odhiambo vs. Republic Cr. Appeal No. 4 of 1980 this Court held that ‘an exculpatory extra judicial statement by one accused cannot be used as evidence against a co-accused’. Even if it could be held to have been a confession, which it was not, the law is that the statement and evidence of a co-accused person is evidence of the weakest kind since an accused person can implicate another, intending to save himself from blame. See Gopa s/o Gidamebanya & Others vs. Republic Cr. Appeal No. 106 of 1983.” 59. In light of the holding above, and in the absence of any evidence to corroborate the alleged admission or confession by the 2nd Accused Person implicating the 1st Accused Person in the commission of the offence herein, this court finds that there is no evidence on record linking the 1st Accused Person to the offence herein.

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60. It is evident from the analysis above that there are reasonable doubts on whether the Accused Persons assaulted the complainant on the date of the incident. Those doubts must be resolved in favour of the Accused Persons. 61. Before penning off, this court notes that the Accused Persons complained about having been assaulted by members of the public and police officers during their arrest. If at all the Accused Persons were assaulted as alleged on suspicion of having committed the offence herein, such acts must be condemned. We live in a civilized society where everyone should be encouraged to treat suspects as suspects, not criminals. Even the vilest of criminals deserve their day in court and protection of their fundamental human rights. This court directs the Accused Persons to report their alleged assault to the relevant authorities for further action. DETERMINATION 62. The upshot of the foregoing is that the Accused Persons are acquitted under section 215 of the Criminal Procedure Code of the offence of grievous harm contrary to section 234 of the Penal Code. 63. The Accused Persons are set at liberty unless otherwise lawfully held. 64. Judgment accordingly. Judgment read, signed, and delivered in open Court at Bungoma this 22nd day of April 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Maroro for ODPP Accused Persons C/A: Mr. Rioba

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