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MagistratePartially AllowedMalaba Senior Principal Magistrates Court Criminal Case (plea taken 3rd March 2025; charge numbers not stated in judgment)· [2026] KEMC 318 (KLR)

Republic v Imong (Criminal Case E129 of 2025) [2026] KEMC 318 (KLR)

Malaba Senior Principal Magistrates Court
16 July 2026
AOA.Z. Ogange
2,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The accused, Joronimo Imong, faced two charges arising from an incident of 22nd February 2025 at Malaba Township: assault causing actual bodily harm contrary to section 251 of the Penal Code, and malicious damage to property contrary to section 339(1) of the Penal Code, both involving his former wife, Sylvia Nekesa. He pleaded not guilty and was released on cash bail of Kshs. 5,000. The prosecution called five witnesses. The complainant testified that after a dispute over their child, the accused entered her house at about 2100 hours and assaulted her by slapping, punching, kicking and biting her, and broke her neon make mobile phone. Two independent neighbours corroborated the assault and the bite marks, a clinical officer diagnosed soft tissue injury secondary to assault, and the investigating officer confirmed the investigations. In his defence, the accused denied going to the complainant's house, claiming the fight was between the complainant and his current wife at his home, but his own witness, Aurelia Akiteng, admitted on cross-examination that he had told her he had gone to the complainant's house. The court found the defence implausible and convicted the accused on the assault count, holding the prosecution's evidence credible, consistent and uncontroverted. On the malicious damage count, however, the damaged phone was never produced as an exhibit and no photographs or other evidence of the damage were tendered, so the allegation remained a mere assertion. The court acquitted the accused on that count. Judgment was delivered on 16th July 2026 by A.Z. Ogange, Resident Magistrate.

Key legal issues

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01

Assault causing actual bodily harm under section 251 of the Penal Code

Holding

Conviction entered - the prosecution's eyewitness, medical and investigating officer evidence was credible, consistent and uncontroverted and proved the offence beyond reasonable doubt

Reasoning

PW1 gave a consistent account of being slapped, punched, kicked and bitten by her former husband; two independent neighbours (PW2 and PW4) corroborated seeing the assault and bite marks; PW3's clinical examination diagnosed soft tissue injury secondary to assault; PW5 confirmed investigation. The accused's own witness DW2 admitted on cross-examination that he had said he went to the complainant's house, contradicting his claim the fight occurred at his home.

p. 4
02

Malicious damage to property under section 339(1) of the Penal Code

Holding

Acquittal - proof of the damage itself was absent because the phone was never produced and no photographic or other evidence of damage was tendered

Reasoning

Although witnesses testified the phone was thrown to the ground and broken, the investigating officer could not find it; it was never marked for identification or produced, and no photographs showed the nature or extent of damage. Applying the ingredients set out in Timothy Mutuku Kitonyi, Wilson Gathungu Chuchu and Simon Kiama Ndiagui, the element of proved destruction/damage was not established to the standard of beyond reasonable doubt.

p. 5

Legal principles established

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  • The ingredients of malicious damage to property are proof that property was destroyed, that a person destroyed it, that the destruction was wilful (with intent) and that it was unlawful; ownership of the property is relevant but not the defining factor and failure to prove ownership is not fatal to the prosecution case
  • Where the damaged property is not produced and no photographic or other evidence of damage is tendered, an allegation of malicious damage remains a mere assertion that cannot be proved beyond reasonable doubt
  • An accused's defence is materially weakened where his own defence witness's evidence contradicts his account of the locus of the incident

Court orders

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  1. 1.The accused person is convicted of the offence of assault occasioning actual bodily harm contrary to section 251 of the Penal Code under Section 215 of the Criminal Procedure Code
  2. 2.The accused person is acquitted of malicious damage to property contrary to section 339(1) of the Penal Code under section 215 of the Criminal Procedure Code
Jurisdiction invoked
Original criminal jurisdiction of the magistrates' court under the Criminal Procedure Code over offences contrary to the Penal Code (sections 251 and 339(1))

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 Imong (Criminal Case E129 of 2025) [2026] KEMC 318 (KLR)", Case Analysis (2026). Malaba Senior Principal Magistrates Court Criminal Case (plea taken 3rd March 2025; charge numbers not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/318/eng@2026-07-16

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