Republic v Ibrahim Boke Magabe

4. After being treated he went to Kehancha Police station where he reported the case and went home. In the morning he went to Kehancha Sub County Hospital for further treatment. He identified his treatment notes from Kehancha Sub County Hospital as PMFI-1 and P3 Form as PMFI-2. He was not issued with treatment at Oasis Hospital. 5. PW1 said he saw the attacker who is the accused herein as he heard somebody following him. He turned and saw it was the accused before he was stabbed. He said there was electricity light at the scene which were security light at the hotel and bar which was near the scene. 6. The complainant said when he regained consciousness he saw VINCENT among the people who were around. He had not known the accused before the attack. His witness is the ones who identified the accused to the police. 7. PW2 evidence was that on 13/7/2026 at 2100 hours while going home from work with SAMUEL MUTUNDI and another colleague and passed at a bar at Kobinto Centre when they heard screams. They rushed to the scene where the screams were coming from. PW2 said he found the accused and complainant. The complainant was lying down while accused was sitting on his back stabbing him. PW2 screamed, took a stick and hit the accused person. The accused wanted to stab him but he ran away and people came and accused ran away. 8. PW2 said the complainant was bleeding and he said he had been stabbed on the back and right thigh and was taken to hospital as PW2 went home. Later he recorded his statement. That the accused and BABU wrote threatening messages to SAMUEL and they also said they will kill him (PW2). PW2 then reported the matter at Kobinto. He did not know when the accused was arrested. He was able to see the accused at 9:00pm using the security light at the scene which was at a nearby homestead. KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 2

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9. PW3 investigated the matter and charged the accused person. PW3 said that the complainant told him that he was attacked by three people while coming from drinking alcohol. The complainant knew the attacker who he thought had gone to Tanzania. On 16/7/2026 a suspect was brought by members of public who he re-arrested, booked and later charged. 10.The complainant had stab wounds on the upper back, left thigh and left side of the ribs. The said suspect is the accused herein. 11.PW4 produced the treatment notes and P3 Form as exhibit 1 and 2 respectively. He said on detailed examination the complainant had a stitched wound on the back left armpit, wound on left thigh. The age of injuries was 14 hours caused by a sharp object as the wound was penetrative. He classified the degree of injuries as grievous harm as the complainant had difficulties in breathing. The prosecution then closed its case. The Accused Defence 12.DW1 IBRAHIM BOKE MAGABE the accused gave sworn defence and denied the charges. His defence was that on that dated he woke up and went to the farm. He came back at noon and went to look after cattle. He brought the cattle back at 6:00pm. He bathed, ate supper and slept at 9:30pm. 13.DW2 SUSAN MURUGA evidence was that the accused is her son. She said the accused did not go out. They ate supper and accused slept in his house. She is the one who has the key to the gate. The accused then closed his defence case. The Law 14.Section 234 of the Penal Code provides for the offence of Grievous Harm as follows: “234. Grievous Harm KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 3

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Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.” Determination The first issue for determination is whether the complainant sustained injuries amounting to grievous harm. 15.The definition of Grievous harm as found in section 4 of the Penal Code Chapter 63 Laws of Kenya which reads as follows: "Grievous harm means any harm which amounts to maim or dangerous harm or seriously and permanently injures health, or which is likely so to injure health, or which extends to the permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense." 16.It now remains to consider the evidence on record to see whether that evidence discloses grievous harm as defined or otherwise. Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury. See (John Oketch Abongo v Republic [2000] eKLR) 17.The complainant said that he was stabbed three times on the back and on the thigh. He then lost consciousness. He was treated at Oasis Hospital. He then KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 4

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went to Kehancha Sub County Hospital for further treatment and P3 Form was dully filled. He identified the treatment notes from Kehancha Sub County Hospital and P3 Form as PMFI-1 & 2 respectively. 18.PW2 said that the complainant was stabbed on the beck and right thigh. PW3 said that the complainant had stab wound on the upper back, left thigh and left side of the ribs. PW4 who examined the complainant said that he had stitched wound on the back, left armpit and wound on the left thigh. The age of injuries was 14 days caused by a sharp object and he classified the degree of injuries as grievous harm as he had difficulty in breathing. The wound was deep on the armpit. He produced the treatment notes and P3 Form as exhibits 1 & 2. 19.A look at the treatment notes the clinical officer made an impression of soft tissue injury secondary to assault. The clinical officer did not indicate in the P3 Form the basis for concluding that the degree of injury is grievous harm. The treatment plan the complainant received does not indicate that the complainant sustained serious injuries as he was given tetanus injection and amoxicillin and brufen. It is my considered opinion form the evidence on record that the complainant sustained injuries whose degree is harm and not grievous harm. The second issue for determination is whether the accused was properly identified by the complainant 20.This is an offence that is alleged to have occurred at night at 9:30pm, thus there is need to determine if the accused was properly identified by the complainant. 21.The court cannot convict an accused person based only on the evidence of identification unless the court is sure that the identification of the accused as the person who committed the offence is proved beyond any reasonable KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 5

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doubt. Refer to the case of Maitanyi v Republic (1986) KLR 198 where the Court of Appeal had this to say in respect of evidence of identification, especially in regard to the evidence of identification by a single witness:“In this case there is no other evidence, circumstantial or direct. The decision must turn on the need for testing with the greatest care the evidence of this single witness. Is that what the courts below really did? It must be emphasized that what is being tested is primarily the impression received by the single witness at the time of the incident. Of course, if there was no light at all, identification would have been impossible. As the strength of the light improves to greater brightness, so the chances of a true impression being received improves. That may sound too obvious to be said, but 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 the 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 known because they were not inquired into. In days gone by, there would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of senior magistrates trying cases of capital robbery to make these inquiries themselves. Otherwise who will be able to test with the “greatest care” the evidence of a single witness? 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 KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 6

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of his or her assailants, to those who came to the complainant’s aid, or to the police. In this case no inquiry of any sort was made. If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the other hand the witness says that he or she could not identify or recognize the person, then a later identification or recognition must be suspect unless explained. It is for the magistrate to inquire into these matters.” 22.In the case of Wamunga vs. Republic (1989) KLR 426 the Court of Appeal it was held thus: “It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.” 23.I am also aware of the guidelines set by the Court of Appeal in the case of Mwaura vs. Republic [1987] KLR 645, wherein it was held, inter alia, that: “In cases of visual identification by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”. 24.In our instant case the complainant said that on 13/7/2026 at 9:00pm he was attacked from behind and stabbed and lost consciousness. He said that he KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 7

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heard somebody following him and when he turned he saw it was the accused person. He said there was security light at the hotel and bar which was near the scene. He had not known the accused before the day he was attacked. 25.In applying the decisions in the above cited cases to our case I find that the complainant has not told the court how long was the accused under his observation to be able to tell that the attacker is the accused herein as he had not known him before. The complainant did not tell the court about the intensity of the light and the position of the light from the accused person. He further stated that it is his witness who identified the accused to police who arrested him. This clearly means that he did not give any description to the police of the person he saw on that night. I find that the complainant did not properly identify the accused as the person who attacked him. 26.PW2 evidence was that he was able to identify the accused using security light at the scene which was at a nearby homestead. However, he did not tell the court about the intensity of the light and the position of the light from the accused person. He did not know when the accused was arrested. PW2 does not say that he gave any description to the police of the person he saw on that night. This clearly means that he did not give any description to the police of the person he saw on that night. I find that PW2 did not properly identify the accused as the person who attacked the complainant. This further cemented by the fact that he alleged that the accused and BABU wrote a threatening message to SAMUEL and they also threatened to stab him (PW2). A matter he alleged that he reported to the police. The said message and even the OB abstract of the said alleged threats were not produced in court. When PW3 testified he never mentioned about the same. KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 8

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27.The complainant and PW2 were not present when the accused person was arrested by members of the public and escorted to the police station. The question which remains unanswered is who identified the accused to the members of the public and police that he was the attacker. The complainant and PW3 were never called at the police station to identify the accused at the station when he was arrested. I find that PW1 and PW2 did not properly identify the accused as the person who attacked the complainant 28.In conclusion I find that the prosecution has not been able to prove its case beyond any reasonable doubt and find the accused not guilty as charged with the offence of grievous harm contrary to section 234 of the Penal Code and acquit him under section 2156 of the Criminal Procedure Code. Dated, Signed and Delivered in open Court at Kehancha on this 22 nd day of September, 2026. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel MS. Martha/Mr. Mang’era.………… Court Assistant Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili KEHANCHA SPMC CR NO. E333 OF 2026 (JUDGMENT) 9

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