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Kshs. 20,378.00; fourthly Kshs. 50,078.00; followed by Kshs. 100,078.00 and lastly Kshs. 100,075.00. PW 1 insisted that all the five transactions were sent to the accused through her number 0742***719. 3. Other than the bank transfers the accused is said to also have withdrawn from PW 1’s M-pesa the Kshs. 20,375.00 sent to it as well as a mobile loan transaction of 1,700.00 for which PW 1 was charged extra penalties of Kshs. 2,124.35 CPL EVERLINE NAINI (PW 4) after concluding investigations proceeded to charge the accused with two offences, first, STEALING Kshs. 303,401.60 contrary to Section 275 of the Penal Code as well as PERSONATION contrary to Section 382 of the Penal Code. 4. Upon completion of investigations, the subject was charged with the offence of assault causing actual bodily harm. The prosecution called a total of seven (7) witnesses and produced six (6) exhibits in support of their case. 5. It’s now trite law that at this stage of the criminal trial process, a court must exhaustively look at the evidence on record and make a determination whether, on a prima facie basis the prosecution has made out a case sufficient to call the accused to be placed on his defence. To this end Sections 210 and 211 of the Criminal Procedure Code, Cap 75 of the laws of Kenya are instructive. Justice R. Nyakundi in considering this aspect in the case of REPUBLIC v ALEX MWANZIA MUTANGILI [2017] eKLR cited with approval the Federal Court of Malaysia’s ruling in the case of PP v Mohamed Radzi bin Abu Bakar [2005] 6MLJ 399 which read in part as follows: “(i) At the close of the prosecution case, subject the evidence led by the prosecution in its totality to a maximum evaluation, carefully scrutinize the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from the evidence if the evidence admits of two or more inferences, then draw the inferences that is most favourable to the accused. Page 2 of 6 E097/23

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(ii) Ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent, Am I prepared to convict him on the evidence now before me" If the answer to that question is YES, a prima facie case has been made out and the defence should be called. If the answer is NO, a prima facie case has not been made out and the accused should be acquitted. (iii) After the defence is called, the accused elects to remain silent, then convict.” 6. It’s now a well settled point of law that at this stage of the criminal trial process, a court must exhaustively look at the evidence on record and make a determination whether, on a prima facie basis the prosecution has made out a case sufficient to call the accused to be placed on his Defence. 7. The time honoured and respected judicial decision in the locus classicus case of RAMANLAL TRAMBAKLAL BHATT v REPUBLIC [1957] EA 332 had the Eastern African Court of Appeal in similar regard holding as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a Prima facie case is made out if, at the close of the prosecution the case is merely one, which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. It may not be easy to define what is meant by a Prima facie case, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.’’ 8. From the foregoing, the court only needs to answer the question as to whether it can convict on the basis of the prosecution’s evidence if the accused elects to keep quiet in defence. Upon, a careful consideration of the evidence on record as applied to the facts of the case, this court finds that the prosecution have failed to prove a prima facie case Page 3 of 6 E097/23

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against the subject requiring him to be placed on his defence for the reasons that follow below. 9. The Court of Appeal in the case of NDAA v REPUBLIC [1985] eKLR held that the ingredients for the offence of assault causing actual bodily harm are; assaulting the complainant or victim and occasioning actual bodily harm. 10. The accused states that on August 14, 2021 after preps he met the subject who pushed him into a bathroom wall occasioning him serious injuries. That one school mate saw the incident take place. Emmanuel Musau (PW 4) in his testimony in chief stated that he met the subject holding the hand of the complainant at the entrance of the dorm while arguing. When PW 4 was cross-examined he said the incident did not take place near a building. This already creates doubt as to whether the complainant was assaulted as the only eye witness, PW 4 did not see any assault take place and it was certainly outside a building and not in the bathroom as the accused states. 11. The complainant admitted that his initial reports to medical personnel did not include him telling them that he was assaulted. This issue came days later. Initial reports indicate culpability or where blame is apportioned by the complainant as issues are still fresh in his mind. In this case, this assertion came way after several medical tests had been done without a history of such assault. 12. PW 1 also while being cross-examined failed to inform school teachers that the pain he felt was caused by an assault. Why? 13. PW 2, Stephen Makau in is testimony in chief stated that as a teacher the accused did not inform him that he had been assaulted. Further, that the complainant had disclosed to him that he had a history of such an illness while in Primary School. Page 4 of 6 E097/23

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14. The complainant in his testimony did not say where he was hurt during the incident so as to corroborate with the medical testimony and that of other witnesses. 15. Medical evidence on record did not make any conclusive findings as to how the boy was assaulted or how the injuries occurred and when. For instance, was it an injury to the brain arising out of a concussion? How did the muscle spasms arise? How come initial medical reports, scans and analysis after the incident did not show any signs of injury? To convolute matters further, there was no single prosecution witness linking the accused with the said assault. No witness saw the assault nor heard the assault if he was hit on the wall. 16. In any event, the complainant was attracted to the noises from the bathroom, which presupposes that there were many students there who would have seen the assault on the complainant if truly he was hit on the wall. 17. Of particular concern was that the accused never told any student, any teacher, any medical practitioner in the first instance of what may have caused him distress. If one was to assault another and the next day they wake up feeling pain, the first reaction or memory will point you to the most recent attack. Failure to report the alleged assault to the medical personnel, fellow students and the teachers lends credence to the defence’s assertion that the complainant had a history of such illness. 18. In view of all the foregoing I find that assault was not proven by the prosecution on a prima facie basis to enable the subject to be placed on his defence. 19. Accordingly, and by dint of Section 210 of the Criminal Procedure Code, Cap75 of the Laws of Kenya, the accused person is hereby acquitted of the charge he faces. Page 5 of 6 E097/23

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Dated this 20 th day of FEBRUARY, 2025 at Courts. HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE Prosecution Counsel: Ms. Mati K. Court Assistant: Steve O. Subject: Mr. Mutisya Adv. Page 6 of 6 E097/23 Wamunyu Law

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