Republic v Daudi Omar Ware

4. PW2, Ibrahim Maulid, on the other hand stated that he was hit with a panga and a rungu. That the assailants went away with camels, their clothes and phones. He also used the light from the torches to identify the accused person herein as one of the assailants. 5. PW3, Maulid Barne, is the biological father to the complainants herein. He confirmed that the children were out in the field herding the camels. That the area chief had warned him earlier on in the day, that he should move out of the area, but that he had planned to do so the next day. Later on, in the night, he met with the complainants herein while already injured. That the complainants informed him that they had been attacked by some ‘ormas’. He then realized that 5 camels of his were missing. The complainants herein them implicated the accused person herein. 6. The last witness herein was PW5, NO. XXX PC James Matera, who informed the court that later on 09.01.2019, he assisted in arresting the accused person herein while in a hotel at Hola. The complainants herein assisted in identifying him to the arresting oficer. 7. Despite ample opportunities3, the prosecution was unable to present additional evidence, especially the medical evidence of the injuries that the complainants herein sustained. Because trials involve rights of individuals, and this court having been lenient enough, I had to step in and stop the indefinite adjournments herein. 8. It should be noted that the court is often placed at a dificult situation where it has to balance the rights of the victims and that of the accused. Justice may be seen to be elusive to many in this region because the courts and prosecution, can do so much and require facilitation from other stakeholders in the administration of justice sector in order to deliver justice. The prosecution therefore closed its case without the medical expert’s opinion on the nature and extent of the injury, if any, sustained by the victim’s herein. 9. The accused was nevertheless identified by two witnesses while at the scene. The witnesses used light from torch and their evidence can be said to have corroborated each other. There is no evidence to challenge the identification evidence by the two complainants herein. I thus find that the prosecution has been able to prove to the required standard that the accused person herein, while in company of others, violently attacked and assaulted the victims herein. 10. Assault as charged herein, must be accompanied with proof of actual bodily harm. It is unfortunate that there was no medical evidence to prove the harm component of the charges herein. I do therefore find that the evidence herein has failed to prove all the ingredients of the ofience of Assault Causing Actual Bodily Harm. However, the ofience of Common Assault c/s 250 of the Penal Code, does not require proof of any harm. The ofience is also lessor, and cognizant, to the one which the accused person has been charged with herein. I will therefore be in order to substitute the conviction herein, pursuant to the provisions of sections 179(1) as read with 191, of the Criminal Procedure Code4, and therefore, further pursuant to the provisions of section 215 of the same Code, do hereby convict the accused person herein of the ofience of Common Assault c/s 250 of the Penal Code5, as charged in both counts herein. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS _11TH _ DAY OF MARCH, 2021 3 No witness called from 17.01.2020 to 15.01.2020, when the prosecution was forced to close its case 4 Cap. 75, Laws of Kenya 5 Ibid, n.1 https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/17/eng@2021-03-11 2

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ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Osman Prosecution counsel: Atika Accused: Present 1st Victim: Absent 2nd Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/17/eng@2021-03-11 3

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