Hesborn Kiraka Mugo v Republic

4. The learned Magistrate erred in law and fact in taking extraneous factors, not on court record, into consideration in arriving at his judgment. 5. The learned Magistrate erred in law and fact in failing to properly and fairly analyze the evidence adduced by both the prosecution and the defence. 6. The learned magistrate erred in law and fact in disregarding the defence put forth by the Appellant. 7. The learned magistrate erred in law and fact in disregarding the fact that the chain of evidence was not maintained. 8. The trial Magistrate erred in law and fact by convicting the Appellant while relying on the evidence of identification whereas the circumstances favoring positive identification were not in existence. Duty of Appellant Court 4. The duty of this court as the first appellate court is to re-evaluate the evidence on record and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses and should make due allowance in that respect. (See Okeno v R (1972) EA 32). Evidence 5. PW1 Erick Kiraka Festus, the complainant herein, testified that, “I know the accused person; he is my cousin. I recall on 10/5/2020 at about 7 pm I was from Ngariama village; I was heading home. When I was about to reach home about 50 meters from home I was forcefully held from behind. I was hit by a bakora on my back and buttocks. I fell down. When I fell down I was lifted by my jacket. The person who lifted me up told me that I will say what I have been saying about people. It’s Hesbon Kiraka who was saying this. When he spoke I was able to identify him. When he was pushing me to his home I was able to see him. He was also talking with me. He was beating me on my back and buttocks. He was using a stick. The distance to his home was about 50 meters. When we arrived at his gate he started to force me to enter his home. We struggled with him I fell down he stepped on my right leg. I used my hands to shield my head. My left finger the pointing finger, middle finger and the ring finger broke they dislocated when he hit me with a stick. Our people heard the commotion they came to see what was happening the father to the accused (Hesbon) he is called Alfred Mugo, Victor Mugo and Wycliffe Mugo (son to the accused) came to see what was happening. I was injured on the right leg. The accused person Hesbon stepped on my right leg. It was fractured. It dislocated at the knee joint. Its Hesbon’s father, Hesbon and Hesbon’s sons who were making noise. My wife Stella Karimi heard the commotions, she came to see what was happening. I was in pain on the leg and hand. When my wife came I waited to be taken to hospital. The other people who came to the scene didn’t do anything to me, that’s Hesbon, his father and sons. When my wife came she inquired from Hesbon why they were assaulting me.My wife tried to lift me up. I felt a lot of pain. I told my wife that my leg was fractured. Hesbon and his family heard this and they went to their homes. Our neighbour Steven heard the commotion he came to assist me. First aid was done to me. I was taken to Embu hospital. I was treated and discharged. I was not admitted to hospital. I returned home the same day. The following day I went to Kianyaga police station. I reported the incident. I was issued with a P3 form. I took it to Embu hospital where it was filled. Its dated 13/5/2020 - MFI 1. I was treated at Embu hospital. These are my treatment documents - MFI-2. I was injured by Hesbon Kiraka. He injured me on the right leg. My right leg was fractured (Witness shows the court the scar on the leg. He walks with crutches) its Hesbon Kiraka who stepped on my leg. My knee was also dislocated. My three fingers on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 2

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the left hand were injured. The fingers were injured when I was shielding my head he was using a stick (fimbo). I was injured on the right leg (the scar is just below the knee) I fractured my leg and dislocated my knee. My left ear was also injured. The incident occurred at 7:00 pm. When he lifted me up I saw Hesbon, he is my cousin. I was also able to recognize his voice. It's not possible that l mistook him. It was not dark at 7 pm. He didn’t have a torch. It was at 7 pm Hesbon is my cousin. I have known him for a long time. I couldn’t make a mistake as to his identity. I had also seen him during the day at 3 pm. He had worn blue jeans, black leather jacket and green cap. He was going for a burial it’s the same clothes he had worn when he attacked me. My leg does pain me a lot. I do walk with an aid of crutches. Its Hesbon who attacked me. I have a witness who can confirm this. I know Hesbon very well. He is my cousin. I saw him he took me to his gate he even told my wife to take me home so that she can take care of me. At the gate to Hesbon’s home there is electricity facing the gate. There are also some trees nearby. The light would illuminate at a distance of 15 feet. The accused person is my cousin. I don’t have a dispute with him. The person who injured me is Hesbon Kiraka he is seated at the dock.” 6. On cross examination, he stated that, “Its Hesbon who attacked me and not any other Peron, the three people came to see what was happening. I was only injured by Hesbon and not 3 people. In my statement I have indicated that I was attacked by Hesbon and not 3 people who came to the scene. Statement read out to witness ‘I was overpowered and I fell down, they continued to attack me’. This is my statement that I have read to the court statement marked MFI 1. I was attacked from behind. When I am facing front part I couldn’t see my attacker. I was hit, I fell down I turned and saw my attacker. I was not aware when I was attacked. It was dark at night. I saw the bakora. I was hit with the bakora. I held the bakora I fell on the nappier grass. When I was being hit the second time I was able to see who attacked me. Hesbon pushed me to his home. He was alone I didn’t struggle with him. When he first hit me with the stick I held it. When he was pushing me to his gate he told I me that I will say what I have been talking about. He pushed me to this gate and that is when he broke my leg. He didn’t break my leg at the point where he was canning me. His father, his sons came to the scene. I don’t know what my father said in his statements. Its only Hesbon who assaulted me. Alfred Mugo and Victor didn’t assault me. I saw the clothes that Hesbon wore I had seen him earlier in the day when he was going to the burial I didn’t assume that it was him. Hesbon is my cousin and he is my neighbour. I also heard his voice I could recognize his voice. I had seen him at 3 pm. It was on a Sunday. I knew it was Hesbon, I had seen his clothes I thought it was him. I got injured on the left ear. When I fell down I injured my lips I was bleeding from my month. I was not hit on the lips. I didn’t inform the doctor that I was in pain at the ear. I had pain on the fractured leg and injury on hand. The ear was only bleeding I don’t know whether I was cut with the grass or hit. I started using the crutches after 3 weeks from the date of the incident before the attack I was not using crutches. I was seriously injured that’s why I went to Embu hospital. I was taken to hospital by my parents. I didn’t report all that time because I couldn’t walk. I went to hospital first then later to police station. I waited for 3 days to go to the police station. I was in pain I couldn’t stand. Since my attacker was my cousin I waited for him to come and talk to me. After the incident Hesbon said that he would have killed me instead of injuring me. There was a requiem mass that started at 3 pm at our home. It ended at about 4 pm. Hesbon was at the requiem mass. He however assaulted me at 7 pm. I was working at Ngariama factory. Hesbon father is the treasurer of the factory. I was summarily dismissed. I didn’t say that Hesbon’s father was to plead my case. I was satisfied with my dismissal I have not framed Hesbon over my dismissal. I didn’t sustain these injuries from an accident. Hesbon’s father is my neighbour. He gave me land. I don’t know if my father was unhappy with this. I have not used these issues to frame Hesbon. I didn’t inform the doctor that I got injured on the hand.” 7. In re-examination, he stated that, “I was injured by Hesbon. The other people came to the gate. Its Hesbon who started to assault me. Someone hit me from behind. I fell near the nappier grass when the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 3

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persons was trying to hit me for the second time I saw it was Hesbon. I saw the clothes that Hesbon wore I had seen him when he was going for the burial. Hesbon went to the requiem mass at 3 pm. it ended at 4 pm. I was attacked at 7 pm. I have not framed Hesbon. I don’t have a grudge with him.” 8. PW2 Jacob Machere Njagi, testified that, “The accused person comes from my area I know him well. Erick Kiraka is the cousin to the accused person. I recall on 10/5/2020 at 6:50 pm I was from Ngariama shopping center. I was heading home. It was heading to 7 pm. I heard noises. It sounded like someone was being beaten, the noises were from the gate of the accused person. I went to see what was happening. I found the accused person beating the complainant. He had a stick. I saw him beating the complainant on the leg and head it was fairly dark. I asked the accused person why he was beating Kiraka. He told me to vacate the scene or he will also beat me. At the scene I also saw Wycliffe and Victor. Victor is the son of the accused while Wycliffe is the son to the accused person sister. They were not assaulting the complainant. They were just standing by. It was heading to 7 pm. It was not that dark I went to the scene. I saw the complainant and the accused person. I was about 2 meters. The complainant was on the ground. I hear the voice of the accused person. I also saw him. He told me that I should leave the scene or else he will beat me. I heard the complainant saying ‘my leg, my leg’ I asked Hesbon why he was assaulting Kiraka. He told me to leave the scene. He threatened me with a stick and this is when I left the scene. The accused person and complainant are cousins and they are neighbours. It was fairly dark however someone could see. The light that was there was sufficient for one to see the colour of clothes worn. The accused person had worn a green cap, blue trouser. I had earlier seen him during the day. I can’t recall his shirt colour. I saw him earlier in the day while I was using the route heading to my home. Hesbon is the one seated at the dock.” 9. On cross examination, he stated that, “I saw the clothes worn by the accused person. He had a cap and trouser. I can’t recall the colour of the t-shirt. I don’t know the colour of the t-shirt. It had a dark colour. There were no electricity lights. The complainant was being assaulted by one person that is the accused person. The accused person assaulted the complainant on the leg. I was the first person to arrive at the scene. I saw Wycliffe and Victor. When I left I met with the wife of the complainant. We met along the way. I saw the accused person beating the complainant on the right leg and hand. Those are the injuries that I saw. The complainant was on the ground: I didn’t see him with bleeding wounds. I left the scene he was being assaulted at the gate to the home of the accused person father. He was not being assaulted at the shopping center. He was assaulted at the gate and not by the road side. I saw the complainant being assaulted. I didn’t assist him. I left the scene. I was threatened by the accused persons. It was also nearing 7 pm. I told the police that it’s the accused person who assaulted the complainant. The 2 people were just standing by. My statements were not read to me. I didn’t write in my statement that the accused person was also assaulted by the 2 other people. Statement shown to the witness and he reads it out. ‘On arrival I saw three person known as Kiraka, Victor and Wycliffe beating the complainant’. I didn’t tell the police that victor and Wycliffe were assaulting the complainant. Its only Hesbon Kiraka who was assaulting the complainant. If I had mentioned Wycliffe and Victor, they would have been charged. The accused person said ‘ondoka hapa ama tukuchinje’. It is the accused persons who threatened me. I didn’t tell the police that I was threatened by Victor and Wycliffe. On my arrival I found the complainant, the accused, Wycliffe and Victor at the scene. The wife of the complainant came when I was being threatened. She screamed. I met with the wife of the complainant while I was leaving the scene. The wife was close to the scene. The home of the accused persons and the home of the complainant is close; they are neighbours. I met with the wife of the complainant when I was leaving the scene. The scene is next to her home. I had just walked from the scene when I met with the complainant’s wife. When I left the scene is when the complainant’s wife arrived at the scene. I heard the complainant's wife scream when I was leaving the scene. I didn’t see her being assaulted as I had already left the scene. I had earlier seen the accused person during the day. I saw him while I was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 4

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heading to Ngariama town I saw him at Ngainamoi center. In the evening I was heading home that is when I saw the accused person assaulting the complainant. He was just seated at Ngainamoi area. They have plots at the area. On that day there was a memorial service. I didn’t attend the memorial service as I was at Ngariama center. I didn’t see the complainant after the incident. Our homes are far apart.” 10. In re-examination, he stated that, “The incident occurred at the gate of the accused person. The gate was close to the road. I saw the accused person assaulting the complainant. The other 2 people were just standing by, they didn’t assault the complainant. If they did they would have been charged. The person who wrote my statement erred. On that day there was a memorial service.” 11. PW3 Stella Karimi Mwaniki testified that, “The accused person is the cousin to my husband - Erick Kiraka. I recall on 10/5/2020 at about 7:00 pm I was inside my house. I stepped out of the house to fetch water. As I was outside the house I heard some commotion. My house is near the road. I went to see what was happening at the scene. I found my husband lying on the ground. I also saw Esbon Kiraka beating my husband. He was in the company of Wycliffe and Victor. Wycliffe is the son to Hesbon Kiraka. I found Hesbon Kiraka assaulting my husband with a bakora. I asked him ‘Baba Wycliffe what is going on.’ He approached and held my throat. He told me that he will assault me and he will assault my husband and ensure that my husband is crippled. He did let me go. I turned my back I saw Jacob Machere. As I was still inquiring what was happening Jacob left the scene. Jacob left the scene when I had just arrived. Hesbon continued beating Erick Kiraka. He was still lying on the ground. He was being beaten using a stick. Erick started saying my leg my leg and that is when he stopped assaulting Erick. I had worn a black blouse. I bent I saw Erick’s leg. The leg was not straight; it was wobbly when shaken. It was a right leg. I took my blouse and held it around the injured leg. I called my father in law, he is called Nicolas Festus so that we can take Erick to hospital. I went to call Nicholas then we started to look for a vehicle we took him to Embu Level 5. On my arrival at the scene, I found Hesbon, Victor, Wycliffe. I found Hesbon beating my husband with a bakora. He was lying on the ground. Erick had a fracture on the right leg. The knee was dislocated, the midshaft of the leg was fractured (right). His three fingers of the left hand had a fracture. The incident occurred at 7 pm. At the time there was electricity bulbs mounted on my house and the house of the accused person. It illuminated the road. It was at about 7 pm. It was not that dark. I was able to see. I know the accused person well. I know his voice, he even called my name ‘mama Kio’. I had also met with him during the day. Our family had a burial service. I had seen the accused person at the burial service. I was serving tea. I gave him tea. The accused wore a light blue trouser, black jacket. He wore safari boot shoes He had a green cap. The incident occurred near home. It’s on the road. The gate of the home of the accused person is next to the scene of the incident. My home is close to the home of the accused person. We share the same boundary; we are neighbours. I don’t know if they had any conflict. I always see them together. We took the complainant to Embu Level 5, an X-ray was done. A plaster of Paris was placed on the broken leg. Wycliffe and Victor didn’t assault the complainant; they were just standing by. The burial service ended at about 4:00 pm. At 4:00 pm everyone had left the funeral service. We were following the M.O.H guidelines. I saw the accused persons assaulting Erick. He talked to me and he told me how he was going to cripple Erick. I was at the scene. I therefore saw him committing the act. Hesbon is the one seated at the dock.” 12. On cross examination, she stated that, “I went to the scene. I found Jacob at the scene he was asking Hesbon what was happening. He immediately saw me and he left. I heard the accused person telling Jacob ‘toka hapa mwizi’. He then left. He left after he heard me making noises. This is when I had just arrived at the scene of the incident. When I was being held by the throat Jacob had already left the scene. Jacob saw me and he left. The incident occurred at the road which is next to the gate. The incident occurred at the gate belonging to the home of the accused person. The gate is just by the road side. The incident occurred at the gate belonging to Hesbon. The incident occurred at the road which is next to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 5

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the gate. The incident occurred at the gate to the road. Its Hesbon who was assaulting the complainant. Victor and Wycliffe we just standing nearby they didn’t do anything. I saw the complainant being beaten on the leg hands and back. The accused used a bakora to assault the complainant. I saw the complainant bleeding on the cheek and near the ear. It was not that dark; it was about 7 pm. There was light, the bulbs were on. I used the light from the electricity bulbs and light the sun was setting, without the electricity bulb one could still see clearly. The fence of he accused person has Kei Apple fence. There next to the gate nappier grass has been planted. There was a burial service, the accused persons father was the chairman of the committee. The accused person was not in the organizing committee. I was the one cooking tea and washing the dishes. I left the burial service at 6:00 p.m. I don’t know if the organizing committee remained behind. The accused person was not around he had left the funeral service. I am the one who did first aid to the complainant. I took my blouse and tied the leg. I went to call my father in law. When I returned I found Stephen at the scene he had tied his leg with a bandage. We then went to hospital. When I returned with my father in-law, I found Stephen and my husband at the scene, the accused person and other people had left. When my father in-law came to the scene he fainted we came with the driver, he is called Silas Kabiru and his wife Hariet Kabiru. My father in law was in shock that is why he collapsed. We talked with him and he woke up. Its Kabiru who woke up my father in law. We took Erick to hospital after he was discharged we purchased crutches for Erick. We purchased crutches after 3 days. It’s the doctor who prescribed the crutches. I was the one who was taking the complainant to the latrine. Right now he is not using the crutches. My husband was sacked from his job. Hesbon’s father is the treasurer where my husband worked. Hesbon’s father was not supposed to lobby for Erick to retain his job. We have not framed Hesbon. My husband was sacked about 3 years ago before incident. I don't know any land issue between the families. Hesbon held me by the throat. I asked him what was happening. The police recorded what I told him. I can’t recall if he read out the statement to me. Witness shown her statement and she read out as follows; ‘on rushing to see what was happening I found Kiraka,Wycliffe and Victor attacking my husband...’ Wycliffe and Victor surrounded my husband but its Hesbon who was beating my husband. Wycliffe and Victor didn’t assault my husband. My husband didn’t get injured in a road traffic accident. He was not involved in any road traffic accident. At the time of incident he didn't have crutches. He had a wheel chair when he was being taken to hospital.” 13. In re-examination, she stated that, “My husband didn’t get involved in a road traffic accident. Its Hesbon who broke his leg when he was assaulting the complainant. Hesbon wasn’t among the people who remained behind after the funeral service. There was sufficient light. I was able to see the accused persons. We even talked. I know his voice well.” 14. PW4 Nicholas Festus Kiraka, testified that, “I know the accused person; he is like my son. He is the child to my brother. The complainant is my son. I recall on 10/5/2020 at about 7 pm I was in my house; I was watching TV. After a few minutes past 7 Stella knocked on my door. She told me that we should take my son to hospital. I asked her what had happened. She told me that my sons leg has been broken I should take him to hospital. She told me that my son had been assaulted by Hesbon Kiraka and the leg was broken. She told me that she tried to stop the assault. I called one of our neighbours who had a vehicle and we took Erick to hospital. I went to the scene of the incident. I found Erick at the gate belonging to the home of the accused person. I saw my son in critical condition I started to cry. I saw the right leg it was fractured into 2 sections. The leg was wobbling when held, on the left hand the three fingers the last three fingers from the little fingers were injured. The incident occurred at about 7 pm. It was not yet dark. There were no lights from the electricity bulbs. I did first aid to my son. I called my neighbour. We took him to Embu Level 5 with the neighbours vehicle. Hesbon and Erick have no grudge everyone has their own land. Hesbon broke Erick’s leg. I was the first person to do first aid to Erick. Hesbon is the one seated at the dock.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 6

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15. On cross examination, he stated that, “I and Hesbon’s father have a good relationship. I am the one who proposed him to be appointed to the farmer’s committee. My son was sacked from his work. I was not happy when he was sacked. I am the one who is supposed to give land to Erick and Hesbon. We are in court over an assault case. If I had a land dispute I would have filed a succession case in court. What I know is that here is no land dispute in our family. I asked Stella who assaulted my son. They told me that its Hesbon who assaulted my son. In my statement I have stated that 3 people were at the scene and its only Hesbon who assaulted the complainant. Witness reads statement. ‘Later he told me that people who assaulted him were Hesbon Kiraka, Alfred Mugo and Victor.’ I told the police that his three children were at the scene and its only Hesbon who assaulted Erick. I didn’t find Hesbon and his children at the scene they had already left. Erick was assaulted at their gate. I’m the only one who did first aid to him. It was about 7 pm. It was not dark. Hesbon had a blue jeans trouser, the jacket was white in colour. There is no nappier at the gate. I don’t recall the colour of the shoes worn by Hesbon. Erick was bleeding from the head. He was bleeding from the fractured legs. He was bleeding from the back of his head. He was also bleeding on the left hand. Erick was not able to walk. He started using the crutches after he was discharged. He started using the crutches after one week I was looking for money to purchase the crutches.” 16. PW5 Dennis Mwenda, a clinician working at Embu Level 5 hospital, produced the P3 form, treatment notes and report as a bundle as exhibits. When he examined PW1 on 13/5/2020, he had a plaster cast on the right leg and left leg and he was walking with an aid of 2 elbow crutches. He was in pain, he had laceration on the left upper lip of the head about one centimeter large, which was oozing a reddish discharge. The upper limb was swollen on the left hand and the X-ray revealed a fracture of the carpal and metacarpal bones (small bones that make the hand). He also had a fracture of the tibia fibula bones. The good doctor assessed the degree of injury was maim, based on the fracture of the hand, 2 major bones of the leg and the limited healing due to the age of the patient. A blunt force trauma caused the injury and if the patent was in a RTA there would be other soft tissue injury on the body. The hip laceration, leg fracture and hand injury were indicative of an assault case. The hand was injured when the patient was trying to defend himself. 17. On cross examination, he stated that, “RTA we expect more soft tissue injury due to a glass splatter. If it’s a boda-boda accident, I was expected to see a graze on the body. The patient was walking with 2 elbow crutches. The time I filled the P3 is not the same day that he was treated. This was on the 13th. The elbow crutches are placed on the arm pits. He was in pain. The best mode of movement was through a wheel chair. I normally report how they come to see me. The left hand was in pain. The crutch support on the arm pit he could move with the injured hand. I don’t know if he got the crutches one week later when reported to me he had elbow crutches. The fractures of the bones can never be a harm. I’m not the person who treated the patient. I examine the patient on another date. The 1st complaint on the first day has facial bruises. It’s here on the report. I didn’t see any injury on the ear.” 18. In re-examination, he stated that, “The degree of injury should be maim and not harm. The pattern of the injury, the right leg and left hand, it was a RTA I expected bruises along the fractured site. This injury shows that one blow occasioned the fracture. It is unlikely that the injuries were caused by RTA. At the time to examination he didn’t talk of any road accident.” 19. PW5 Corporal Brian Wambugu of Kianyaga police station and the current investigation officer herein, was at work on 13/5/2020 at around 900 hrs, when the complainant came to report this incident. He commenced his investigations, recorded the witness statements, issued a P3 form to the complainant and opened the case file. He noted that the complainant had a plaster of Paris on the right leg and on the left hand. There was no grudge between the accused and the complainant, and when he visited the scene, he confirmed that the offence occurred near the road at the entry to the complainant’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 7

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home. There were homesteads nearby but there were no lights at the scene. The complainant positively identified the accused person as the one who assaulted him. He affirmed that the person he charged was the one at the dock. 20. On cross examination, he stated that, “I didn’t see any electricity in the area. The incident occurred on the entry to the complainant’s home. There were nappier grass grown near the scene. The complainant told me that he was attacked by 3 people. I couldn’t trace the other 2 people. The complainant told me that the accused person alleged that he had abused him. That was the cause of the assault. I’m not aware that the accused persons father was to support the complainant when he was being fired. Grievous harm and maim fall under one section in the penal code. The complainant had a broken leg he had to go to hospital for treatment on the 13/5/2020. He came to the station while using crutches. The complainant had changed his clothes when he reported to the station. I’m not aware if there was a funeral procession/ceremony on that day.” 21. DW1 Esbon Kiraka Mugo, the Appellant herein, testified that, “I am a farmer. I recall on 10/5/020 I was at home. It was on Sunday. There was a burial ceremony at my cousin’s home. She is called Irene Waruguru (my cousin). I was at the funeral up to 5:00 pm, the ceremony was over by then. We remained behind as organizing committee we stayed in the meeting from 6:00 pm - 8:00 pm. My father Alfred Mugo was the chairperson of the committee. I was a committee member. I have a eulogy for the deceased Irene Mary Wanja. I do produce it a DEx1. I didn’t see the complainant in the evening. I didn’t see the complainant during the day. We have been friends. The complainant was dismissed from Ngariama Farmers. My father is the treasurer. He claimed that its my father who dismissed him from work. The complainant told me that he was dismissed from work due to alcoholism. I heard people saying that the complainant was knocked down by a motorcycle and this caused his injuries. It was a hit and run. I didn’t see the complainant on that day of the incident. I had seen the complainant walking with a walking stick before the incident. He was limping. He had the injuries before the 10/5/2020. When he was dismissed from work he stopped talking to me. He told me that he will frame me since my father caused him to be dismissed from work. My son is called Wycliffe Mugo. My nephew is called Victor Mugo. Wycliffe was at his aunt’s place. It's far from our home. He didn’t assault the complainant. I do wish to produce the complainant’s statement as DEX 2. On that 5/6/2020 my father was summoned by a police officer from Kiamutugu on the grounds that I had assaulted Erick, this was false. I do wish to produce the statement of Jacob as DEx 3. At home there is live fence no nappier grass has been planted near our gate. Our home is next to the complainant’s home. At their home they don’t have electricity.” 22. On cross examination, he stated that, “I know Erick Kiraka he is my cousin we know each other well. Erick is my friend. We have been friends for long. Since he knows me even if he was far away he could know me. The burial was on a Tuesday. I was on the burial ceremony on 10/5/2020. As per the eulogy the burial date is 20/4/2020. This is the sunset date as per the eulogy. I didn’t have any dispute with Erick. He had a dispute with my father since he (my father) didn’t intervene during the disciplinary proceeding. Erick framed me since my father dint help him. Our homes are far apart, it’s about 5-6 meter apart. There is Kei Apple fence separating our two homes. Our fathers house has electricity. Our home has electricity. There is a fence between our 2 homes. The light does illuminate very far just at the front of the house. I didn't see the investigating officer at our home. I heard him talk about nappier grass, there is no nappier grass outside our home. The organizing committee had 10 people namely Alfred, Solomon Njogu, Esbon Kiraka, Arman Muriuki, Nyaga kaheri, Boniface Njiru. I can’t recall the other people. Erick’s wife testified before court. She lied to the court. I don’t have a grudge with her. I was at the burial ceremony till the end. I saw Erick using a walking stick. I don’t know the injuries he sustained. He had an issue with his leg. I can’t recall when I saw him with the injuries. When he was adducing evidence in court I saw him with crutches at home he uses a walking stick. I heard people https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 8

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saying that Erick was knocked down by a motorcycle. I didn’t visit him as he was not talking to me he had claimed that my father made him to be dismissed from work. I don’t know when he got the injuries. We stopped talking 3 years ago. That is when Erick was dismissed from his place of work. Erick claimed that my father wanted him not to get his benefits. PW2 lied to the court. Wycliffe was not at the scene. He was at his aunt’s place. Victor was also not at the scene he was at Kiamutugu. I know Jacob Micin, we come from the same village. We are not related. I don’t have a grudge with him. He lied to the court. We were not in good terms with Jacob. He was found stealing from my sister’s home. I was the punching bag for all these people who had issues with my family members. I didn’t apprehend him when he was found stealing at my sister’s home. There is a road heading to our home and the home of Erick. Everyone has their own separate gate. I heard that Erick was admitted to hospital. This was 3 days after 10/5/2020.” 23. In re-examination, he stated that, “Erick wanted to revenge through me. Jacob framed me. He stole from my sister’s home. He was taken to the chief. It’s my sister who took him to the chief and that is why he lied. My cousin child died on 28/4/2020. She had disappeared and was found at Mwea river Nyamindi. We were looking for her. The alleged incident of 10/5/021- we had not buried the deceased.” 24. DW2 Solomon Njagi Kamuri testified that, “I know the complainant Erick. He is our neighbour. We had a burial meeting on 10/5/2020. I was present at the meeting Esbon Kiraka was present at the meeting. We went home at 8:00 pm after the meeting. The following day I took my goat to Kiraka Erick. I found him sleeping he told me that he got injured in a motorcycle accident and the motorcycle rider ran away. I asked him if he had gone to hospital. I took my goat and went away. The following day I heard a different story. Esbon didn’t assault the complainant he was at the burial meeting on 10/5/2021.” 25. On cross examination, he stated that, “I didn’t see the accused person assault the complainant on 11/5/2020. I went to the home of Erick. I found him asleep. I found him covering himself with a blanket. I didn’t see the injury. I don’t know anything about this case.” 26. In re-examination, he stated that, “After 2 days I saw Erick walking with a limping gait. On 11/5/2020 Erick didn’t leave his bed. He had covered himself with a blanket. Later on I saw him with bandages.” 27. DW3 Alfred Mugo Kiraka testified that, “Hesbon Kiraka is my son. Erick Kiraka is my brother's son. He is called Nicholas Festus Kiraka. On 5/6/2020 I was called by police officer from Kiamutugu police station. I was told to take my son Hesbon Kiraka to Kiamutugu police station. I didn’t go to the station but on the following day on 6/6/2021 I went to Kianyaga police station with Hesbon Kiraka. I met with the OCS of Kianyaga. He told me that Erick Kiraka had filed a case against Hesbon. The police recorded witness statement. Kiraka my son was locked in the cells. We were given bond and told to report to court on 11//2020. On 10/5/2020 we had a burial at home. The daughter of my brother had passed on. I can’t recall her name, she is called Irene. I was the chairperson of the burial ceremony. The ceremony started at 4 pm and ended at 6:00 pm - 6:30 pm since there was a curfew in place. After the burial meeting the committee remained behind to make some burial arrangements. We remained behind and did a mini contribution and we finished the meeting at 7:00 pm that is when we left the meeting. I was with the family members, Esbon Kiraka and the neighbours. Esbon was with us in the meeting. I accompanied him from our brother's home to our home. We live in the same compound. We were together from the home of our brother to my home. Erick Kiraka was an employee of Ngariama co-operative society where I was the treasurer. He was dismissed from work due to his bad conduct. He was dismissed in the year 2017. I have the document to confirm the same. He was a night watchman. Before he was dismissed he was my good friend. After he was dismissed we started parting ways. The father to Kiraka Erick said that my son will also suffer. Erick Kiraka was dismissed by a committee of 5 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 9

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people. I do wish to produce bundle of letters dated 7/6/2017. D EXh 4b letter dated 14/1/2017. D EXh 4c letter dated 12/9/2017. D EXh 4d. This issue before court is as a result of a grudge. Nicholas told me that my son must suffer since I caused his son to be dismissed. He was summarily dismissed by the whole committee. If you are summarily dismissed no benefits are given. Erick claimed that I refused to give him the benefits. The statement of Nicholas indicates that I and Hesbon Kiraka assaulted Erick this shows that Nicholas has a grudge with. He is the only person who mentioned my name amongst the prosecution witness. Erick didn’t mention me in his statement. I do produce his statements as D EX5.” 28. On cross examination, he stated that, “We all come from the same family. Esbon and Erick don’t have any dispute they have been living in peace. They are neighbours. I am still the treasurer of the Ngariama coffee factory society. It’s the factory that employed him and not I in my personal capacity. Erick claimed that I didn’t intervene when he was being dismissed. I had intervened in his case previously. He thought that I am the one who dismissed him. He therefore has a grudge with me. Nicholas is my brother. I don’t have a grudge with him. The burial home is not far from my home. Its separated by one shamba. The meeting ended at 7:00 pm. I do live with Esbon in the same compound on the same land he has his house. I didn’t follow Hesbon to his house. My home has a gate when we entered the compound I locked the gate. He entered into his house whatever he did after he entered his house I can’t tell. Erick framed Esbon due to his dismissal from work. My brother Nicholas said that my child/ son must suffer that is why they framed Erick. My brother changed after his son was dismissed. Erick’s wife is in court today. She didn’t have a grudge with Hesbon. I know Jacob micere. His home is far apart from us. Before the incident he didn’t have a grudge with Esbon. He is not from our family. He lives far from us. Erick’s house is next to my home. I didn’t see him with any injury. He attended the burial meeting on the first day. According to me I didn’t see him with any injuries even after the 10/5/2020. I only saw him in court with the injuries. I don’t know where he got the injuries from.” 29. In re-examination, he stated that, “When we entered our compound I am the one who locks the gate. I am the only one who has the keys to the gate. In the morning at 6:00 am I am the one who opens the gate to the compound at times it’s my wife who opens the gate. The home is well fenced with chainlink and live fence. It's very difficult for someone to pass through the fence. I don’t know where Erick got the injuries. I saw him with the crutches when he came to court. At home I didn’t see him with any crutches. He was walking normally from 10/5/2020. He was pretending.” Submissions 30. The Appellant urged that the prosecution did not prove its case to the required standards, that is beyond reasonable doubt, as his defence of alibi was not considered. He insisted that the complainant’s family was holding grudges against him and his father, and pointed various inconsistences and contradictions in the evidence led by the prosecution witnesses. He faulted the trial court for failing to sentence him to pay a fine or a non-custodial sentence, and prayed for the appeal to be allowed. 31. The Respondent urged that it proved all the elements of the offence beyond reasonable doubt, and cited John Oketch Abongo [2000] KECA 300 (KLR). It urged that the Appellant’s defence did not shake the consistent and corroborative evidence that was tendered by the prosecution witnesses. It submitted that the nature of injuries sustained by the victim show that the Appellant’s conduct was utterly with malice and unlawful. It was their submission the Appellant was recognized by the prosecution witnesses, and cited R v Turnbull (976) 63 CR Appeal R 132, Abdalla Bin Wendo & Another v R (1953) EACA 166, Roria v R (1967) EA 583 and Anjononi & Others v Republic [1976-80] 1 KLR 1566. It urged that the sentence mete out to the Appellant was immensely lenient, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 10

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taking in account the injuries sustained by the victim and the unremorseful manner in which they were inflicted, and cited Wanjema v Republic [1971] EA 493. Analysis and Determination 32. The twin issues for determination are whether the offence was proved beyond reasonable doubt and whether the Appellant’s defence was considered. 33. The essential ingredients of the offence of grievous harm contrary to 234 of the Penal Code, which the prosecution had to prove beyond reasonable doubt, are that the complainant sustained grievous harm, the harm was caused unlawfully, and the Appellant caused or participated in causing the grievous harm. 34. When PW5 examined PW1 on 13/5/2020, he had a plaster cast on the right leg and left leg, and he was walking with the aid of 2 elbow crutches. He was in pain, he had laceration on the left upper lip of the head about one centimeter large, which was oozing a reddish discharge. The upper limb was swollen on the left hand, and the X-ray revealed a fracture of the carpal and metacarpal bones (small bones that make the hand). He also had a fracture of the tibia and fibula bones. The good doctor assessed the degree of injury was maim, based on the fracture of the hand, 2 major bones of the leg and the limited healing due to the age of the patient. The doctor was categorical that, the injuries were inconsistent with a Road Traffic Accident because the hip laceration, leg fracture and hand injury were indicative of assault. 35. PW4 was informed of the assault by PW2 and when he went to the scene, he found the complainant at the gate belonging to the home of the Appellant, in critical condition. His right leg was fractured into 2 sections and 3 fingers of the left hand had injuries. 36. PW5 noted that the complainant had a plaster of Paris on the right leg and on the left hand at the time of reporting. 37. Grievous harm is defined under section 4 of the Penal Code to mean 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. 38. This court thus is satisfied that there was sufficient evidence to prove that the assault occasioned on PW1 resulted in grievous bodily harm within the meaning of section 4 of the Penal code. 39. On whether the harm was caused unlawfully by the Appellant, the Appellant in his sworn defence admitted attending the funeral, just as alluded to by PW1 and PW2, but denied encountering the complainant on the material day. He asserted that the complainant had been knocked by a motor cycle and he was using a walking stick before the incident. However, that defence does not hold water because he was placed squarely at the scene by PW1, PW2 and PW3. PW1 testified that, “I know the accused person; he is my cousin. I recall on 10/5/2020 at about 7 pm I was from Ngariama village; I was heading home. When I was about to reach home about 50 meters from home I was forcefully held from behind. I was hit by a bakora on my back and buttocks. I fell down. When I fell down I was lifted by my jacket. The person who lifted me up told me that I will say what I have been saying about people. It’s Hesbon Kiraka who was saying this. When he spoke I was able to identify him. When he was pushing me to his home I was able to see him. We struggled with him I fell down he stepped on my right leg. I used my hands to shield my head. My left finger the pointing finger, middle finger and the ring finger broke they dislocated when he hit me with a stick. My wife Stella Karimi heard the commotions, she came to see what was happening. I was in pain on the leg and hand. I was injured by Hesbon Kiraka. He injured me on the right leg. My right leg was fractured (Witness shows the court the scar on the leg. He walks https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 11

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with crutches). I have known him for a long time. I had also seen him during the day at 3 pm. He had worn blue jeans, black leather jacket and green cap. At the gate to Hesbon’s home there is electricity facing the gate. The light would illuminate at a distance of 15 feet.” 40. His testimony was corroborated by an eye witness, PW2 who stated that, “I found the accused person beating the complainant. He had a stick. I saw him beating the complainant on the leg and head it was fairly dark. At the scene I also saw Wycliffe and Victor. They were not assaulting the complainant. They were just standing by. I hear the voice of the accused person. I also saw him. The light that was there was sufficient for one to see the colour of clothes worn. The accused person had worn a green cap, blue trouser. I saw him earlier in the day while I was using the route heading to my home. Hesbon is the one seated at the dock.” 41. PW3 went out to fetch water when she heard some commotion. When she went to check, she stated that, “I found my husband lying on the ground. I also saw Esbon Kiraka beating my husband. He was in the company of Wycliffe and Victor. I found Hesbon Kiraka assaulting my husband with a bakora. Hesbon continued beating Erick Kiraka. Erick had a fracture on the right leg. The knee was dislocated, the midshaft of the leg was fractured (right). His three fingers of the left hand had a fracture. At the time there was electricity bulbs mounted on my house and the house of the accused person. It illuminated the road. I was able to see. I know the accused person well. I know his voice, he even called my name ‘mama Kio’. I had seen the accused person at the burial service. I gave him tea. The accused wore a light blue trouser, black jacket. He wore safari boot shoes He had a green cap.” She stated on cross examination that, “There was light, the bulbs were on. I used the light from the electricity bulbs and light the sun was setting, without the electricity bulb one could still see clearly.” 42. Although the incident occurred in darkness and in the absence of electricity, the identity of the Appellant was not in dispute. The Appellant, being a cousin to the complainant, could not have been mistaken for another. Indeed, PW1, PW2 and PW3 witnessed the assault as it was being perpetuated by the Appellant at the scene. Furthermore, when the Appellant spoke to PW1, PW2 and PW3, they equally recognized his voice, having known him for a long time. The said witnesses were unequivocal that they had seen the Appellant during the day and described the clothes he had donned, at the time. 43. The Appellant acknowledged knowing the complainant when he stated that, “I know Erick Kiraka he is my cousin we know each other well. Erick is my friend. We have been friends for long. Since he knows me even if he was far away he could know me. Our home has electricity. There is a fence between our 2 homes. The light does illuminate very far just at the front of the house. I heard that Erick was admitted to hospital. This was 3 days after 10/5/2020.” 44. The Appellant’s defence was a mere denial, as he had been placed at the scene by PW1, PW2 and PW3. When weighed against the Prosecution evidence, it did not raise any doubt as to the prosecution consistent evidence of his involvement in the assault. 45. Accordingly, the prosecution proved beyond reasonable doubt that the injuries sustained by the complainant were as a direct consequence of the Appellant’s unlawful conduct. 46. On sentence, the offence of grievous harm contrary to section 234 of the Penal Code is a felony attracting a maximum punishment of life imprisonment. 47. The trial court considered properly considered the Appellant’s mitigation, and handed him a 2 year sentence, which was by all standards lenient, in view of the magnitude of the injuries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 12

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Orders 48. Accordingly, for the reasons set out above, the Court finds the appeal to be without merit and it is dismissed. Order accordingly. DATED AND DELIVERED THIS 26TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Kipruto for Ms. Kimotho for the Appellant. Mr. Mamba/Mr. Mwangi for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4489/eng@2026-02-26 13

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