Republic v Hussein (Criminal Case 37 of 2018) [2020] KEMC 21 (KLR)

3. At the close of the prosecution's case, I found no prima facie case disclosed with respect to the 2nd charge, dismissed the charge under section 210 of the Criminal Procedure Code, and accordingly acquitted the defendant herein therein. The reason for the finding, dismissal and the resultant acquittal at that stage was mainly on a point of law. 4. Section 94(1) of the Penal Code provides for the ofience of Ofiensive Conduct. The section provides as follows: 94. 5. (1) Any person who in a public place or at a public gathering uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned is guilty of an ofience and is liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or to both. (2) In this section, “public gathering” means (a) any meeting, gathering or concourse of ten or more persons in any public place; or (b) any meeting or gathering which the public or any section of the public or more than fifty persons are permitted to attend or do attend, whether on payment or otherwise; or (c) any procession in, to or from a public place While section 4 of the Penal Code, defines a public place as follows: ...“public place” or “public premises” includes any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court... 1 6. Whereas it has been proved herein that there were serious insults and abuses from the defendant herein, directed towards the complainant; and that a breach of peace was created due to the assault1, it is the provisions of sections 4 and 94(2) of the Penal Code that I applied and found that the defendant's shop herein does not fit into any of the definition of a public place or gathering as defined in the above provisions. There was no evidence tendered to prove that the shop was a public place where the members of the public were conditionally or unconditionally permitted to enter or access. A shop is generally a private premise where the owner reserves the right of admission and cannot, without proof, qualify to be a public place. 7. The defendant was however called upon to make her defence with respect to the Assault charges in count 1. She denied assaulting the complainant herein as charged. She stated that it is the complainant herein who caused disturbance to her husband at her husband's shop when she forcefully and violently demanded for her parcel. That it is her who insulted them and not the other way around. That after the disturbances, the complainant rushed to the police and obtained a P3 form so as to frame her as herein. The witnesses herein, neighbors, PW2 and PW3, confirmed that they were attracted to the commotion herein and hence their peace was thus disturbed https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/21/eng@2020-01-21 2

page 2 of 3

8. I do find the evidence tendered herein to have proved the ofience of assault against her to the required standard of beyond reasonable doubt. The defence herein has failed to exonerate the defendants herein from the assault attack. The defendant did not put any question to the complainant in crossexamination. It is therefore clear from the evidence adduced herein that the complainant herein was injured, and that the defendant herein had the opportunity to, and was confirmed to have, attacked and injured the complainant herein. The treatment notes herein confirmed that the complainant sustained soft tissue injuries as a result of an assault attack. She was complaining of invisible injuries at her chest. She was thus harmed. Harmed is defined in section 4 of the Penal Code to mean 'any bodily hurt, disease or disorder whether permanent or temporary'. 9. I do find the assault attack not to have been justified as the defendants appear to have taken the law into her own hands in the first instance and had it not been for the intervention of the prosecution witnesses who responded to the complainant's distress call, the defendants herein would have continued harming the complainant and more serious injuries would have resulted. 10. I thus find no reason to reject the overwhelming evidence herein. I do therefore enter a verdict of guilty and pursuant to the provisions of section 215 of the Criminal Procedure Code, I do hereby convict the defendants herein of the ofience of Assault Causing Actual Bodily Harm c/s 251 of the Penal Code. I shall therefore receive the material and evidence relevant to sentencing. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 21ST DAY OF JANUARY, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko Prosecution counsel: Atika Defendant: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/21/eng@2020-01-21 3

page 3 of 3