Republic v Nderi (Criminal Case E640 of 2025) [2026] KEMC 202 (KLR)

the driver was called to the police station and he was able to identify him. He identified the accused as the driver. Upon cross-examination, PW1 admitted that other people saw the accused assault him. 4. PW2, a doctor, told the court that the Complainant was examined in hospital. The Complainant gave a history of having been assaulted by someone known to him. Upon examination, both his cheeks were swollen. PW2 assessed the degree of injury as harm. PW2 produced the treatment notes and P3 form. 5. PW3, the Investigating Oficer, stated that on 2nd June 2025, the Complainant reported that he had been assaulted. PW3 adviced the Complainant to seek treatment. On 5th June 2026, the Complainant returned the filled medical report and they proceeded to Kagumo TTC to look for the accused. They did not find the accused. PW3 claimed that the accused availed himself at Gatitu Police Station. The Complainant identified the accused. PW3 proceeded to arrest the accused and charged him with the ofiences herein. Upon cross-examination, PW3 stated that the medical report showed that the Complainant sustained injuries. 6. The Prosecution closed its case at this point. I found that the accused had a case to answer and placed him on his defence. In his defence, the accused elected to give a sworn statement. Defence 7. The accused told the court that on 2nd June 2026 at around 6 pm, he was driving a matatu from Nyeri headed to Muthiga. When he got to Gatitu, some passengers alighted and others boarded the vehicle. He stated that he knew the Complainant. The Complainant boarded the matatu and sat at the front together with a lady. He claimed that the Complainant appeared drunk. After about 100m, a commotion ensued between the Complainant and the lady. The accused was forced to stop the vehicle. He stated that he requested both the Complainant and the lady to alight. He claimed that he left the two there and proceeded with the journey. Later, the accused was called to the police station. The police told him that the Complainant had reported that he had assaulted him. He was arrested and charged with the ofiences herein. Upon cross-examination, the accused stated that he did not have a grudge against the Complainant. He admitted that the conductor he had on the said date is not a witness in this matter. He did not commit the ofiences herein. The Determination 8. I have read and appreciated the undated submissions by Counsel for the accused. Count I- the accused is charged with the ofience of assault causing actual bodily harm contrary to Section 251 of the Criminal Procedure Code. Section 251 reads as follows: Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years. The ingredients for this ofience were discussed in Ndaa v Republic [1984] KLR as: 9. (i) Assaulting the complainant or victim. (ii) Occasioning actual bodily harm. On the first ingredient of assaulting the Complainant, the Complainant stated that on the material day he boarded a matatu that was being driven by the accused. He asked the accused for the Mpesa number for purposes of paying fare. The accused did not respond. He asked the accused again. The accused brought the vehicle to a stop and asked him to alight. The Complainant alighted. The accused proceeded to punch the Complainant on his face and head resulting in his eyeglasses being damaged. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/202/eng@2026-06-30 2

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10. On the other hand, the accused acknowledged that he was driving the vehicle that the Complainant boarded. However, he stated that the accused had an altercation with the lady that was seated next to him. The accused was forced to stop the vehicle. He then proceeded to ask both the Complainant and the lady to alight. He denied assaulting the Complainant. 11. It is trite law that the burden of proof in criminal cases is that of beyond reasonable doubt. Did the State prove beyond reasonable doubt that the accused assaulted the Complainant? I note that the evidence of the Complainant was not corroborated. Section 124 of the Evidence Act provides for corroboration in criminal cases. It reads as follows: Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an ofience, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual ofience the only evidence is that of the alleged victim of the ofience, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 12. In Wilfred Thomas Mwita alias Babu & another v Republic [2019] KEHC 8989 (KLR), the Court stated as follows with regard to Section 124 of the Evidence Act; “ 11. The above provision therefore calls for corroboration in criminal cases save in those cases involving sexual ofiences. Corroboration involves further and independent evidence which only comes up to buttress facts initially tendered in the trial.” 13. The Complainant was the only prosecution witness that gave an account of how the incident occurred. His evidence was not corroborated. The court notes that there were other witnesses to the incident as it occurred in a public service vehicle. Although, the Prosecution has the discretion to determine the number of witness to call in a case, the Prosecution is duty bound to call relevant witness to prove elements of the ofience. In this case, the Prosecution ought to have called additional witnesses to demonstrate that the accused assaulted the Complainant such as the persons who were present in the vehicle when the incident occurred. Further, I note that the evidence of the accused was sworn. It was subjected to cross-examination and remained consistent. In my view, the defence was able to displace the evidence of the State. For these reasons, I am not persuaded that the State was able to show that the Complainant was assaulted by the accused. 14. The second ingredient is that of occasioning bodily harm. The Complainant stated that he was assaulted and sustained injuries to his face. PW2 told the court that the accused was examined in hospital and it was observed that both his cheeks were swollen. The degree of injury was harm. The nature of the injuries was not permanent. The accused was thus occasioned bodily harm. 15. I find that although the Complainant sustained bodily harm, the State failed to prove that it was the accused who assaulted the Complainant. This charge fails. 16. Count II- the accused is charged with the ofience of malicious damage to property contrary to Section 339(1) of the Penal Code. The said provision reads as follows: 339. Malicious injuries to property https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/202/eng@2026-06-30 3

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(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an ofience, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years. 17. The State charged that the accused damaged eye glasses belonging to the Complainant. From the Complainant’s statement, it is evident that the issue of damage of his eye glasses emanates from the alleged assault by the accused. He claimed that when the Complainant punched him on his face and head, his eye glasses were damaged. Having found that there is no suficient evidence to show that the accused assaulted the Complainant, it follows that the charge of malicious damage cannot stand. The ofience of malicious damage is tied to that of assault. Therefore, this charge must also fail. 18. In conclusion, the accused is acquitted of both Count I and II under Section 215 of the Criminal Procedure Code. 14 days Right of Appeal. DATED, SIGNED, AND DELIVERED IN NYERI ON THIS 30TH DAY OF JUNE 2026. M.M GITUMA SENIOR RESIDENT MAGISTRATE In the presence of: ……………………………………………Prosecution Counsel …………………………………………..…Accused …………………………………………..….Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/202/eng@2026-06-30 4

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