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MagistratePartially AllowedCriminal Case No. E350 of 2024· [2025] KEMC 78 (KLR)

Republic v Areman & another (Criminal Case E350 of 2024) [2025] KEMC 78 (KLR)

Senior Principal Magistrate's Court
9 April 2025
1,528 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court convicted two brothers of the lesser offence of common assault instead of the more serious assault charge because the victim's injuries were minor.

What this practically means

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Executive summary

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The two accused, brothers and nephews of the complainant, were jointly charged with assault occasioning actual bodily harm contrary to section 251 of the Penal Code. The prosecution alleged that on 27th November 2024 at Tamiyoi village, Samburu County, they confronted Rose Asukuku Kibet, saying she would learn a lesson for agreeing to testify against them in another criminal case, and the 1st accused punched her in the left eye area while the 2nd accused, holding a knife, followed with a punch. Four prosecution witnesses testified, including the complainant, her husband, a clinical officer who produced the P3 form, and the investigating officer. Each accused was placed on his defence and gave unsworn statements: the 1st alleged a land dispute grudge; the 2nd raised an alibi. Applying the ingredients set out in Ndaa v Republic, the court found the evidence established only common assault contrary to section 250 of the Penal Code, since the complainant suffered temporary swelling managed with painkillers with no bruise, cut or fracture. Relying on sections 179 and 191 of the Criminal Procedure Code and authorities including Jeremiah Ouma Adongo v Republic, Rashid Mwinyi Nguisa, Kalu v Republic and David Mwangi Njoroge v Republic, the court held it could convict on a minor cognate offence not charged. Finding no fabrication and dismissing the alibi as an afterthought, the court convicted both accused of common assault under section 215 as read with section 179 of the CPC and noted a right of appeal within 14 days.

Key legal issues

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01

Whether the proved facts constituted the charged offence under section 251 of the Penal Code

Holding

The evidence proved only common assault under section 250 of the Penal Code, not assault occasioning actual bodily harm under section 251

Reasoning

The clinical officer testified the complainant suffered temporary swelling and redness of the eye managed with painkillers, with no bruise, cut or fracture. This fell short of actual bodily harm. Since the accused were not charged with common assault, the court invoked sections 179 and 191 of the Criminal Procedure Code permitting conviction for a minor cognate offence not charged.

p. 3
02

Whether the accused's defences displaced the prosecution's case

Holding

No. The complainant's testimony was unshaken; the land-grudge explanation did not amount to fabrication and the 2nd accused's alibi was an afterthought

Reasoning

The 1st accused alleged fabrication over land disputes but the evidence showed the accused acted from bitterness that their aunt testified against them in another case. The 2nd accused's alibi, raised at a very late stage, was treated as an afterthought. Both acted in concert and were guilty of common assault.

p. 6

Legal principles established

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  • A court may convict on a minor cognate offence not specifically charged where facts prove a lesser offence
  • Assault occasioning actual bodily harm consists of two ingredients: the assault and the occasioning of actual bodily harm

Court orders

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  1. 1.Both accused persons convicted of common assault contrary to section 250 of the Penal Code under section 215 as read with section 179 of the Criminal Procedure Code
  2. 2.Right of appeal within 14 days

Authorities

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Legislation

  • Penal Codesection 251
  • Penal Codesection 250
  • Criminal Procedure Codesection 179(1)
  • Criminal Procedure Codesection 179(2)
  • Criminal Procedure Codesection 191
  • Criminal Procedure Codesection 215
  • Criminal Procedure Codesections 180 to 190
  • Criminal Procedure Codesection 354(3)(a)
  • Penal Codesection 296(2)
  • Penal Codesection 296(1)
  • Penal Codesection 203
  • Penal Codesection 202
  • Penal Codesection 205

Cases cited (5)

  • Ndaa -v- Republic
    (1983) eKLR
  • Jeremiah Ouma Adongo v Republic
    [2021] EKKLR
  • Rashid Mwinyi Nguisa & Another v Republic
    [1997] eKLR
  • Kalu v Republic
    (2010) 1 KLR
  • David Mwangi Njoroge v Republic
    [2015] eKLR
Jurisdiction invoked
Original criminal jurisdiction under the Criminal Procedure Code over assault occasioning actual bodily harm contrary to section 251 of the Penal Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Areman & another (Criminal Case E350 of 2024) [2025] KEMC 78 (KLR)", Case Analysis (2025). Criminal Case No. E350 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/78/eng@2025-04-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.