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4. PW2 Anne Ouma testified that on the material day, her in-law, the complainant herein, was selling mangoes when people asked around to rent a house in a plot. The accused, whose uncle is the complainant, emerged and asked the complainant to stop the renovations and to demolish the part of the repairs carried out by the people intending to rent out a house on the plot. The accused claimed ownership of the properties. Complainant went and sat nearby. Accused approached her from behind, pushed her to the ground and began strangling her and hitting her with his fists on her face. Complainant screamed for help. She asked the accused to stop assaulting the complainant complainant managed to break free. 5. PW3 Abraham Kiptum Kosgei, a clinical oficer working at Port Victoria hospital, stated to have examined the complainant on 9/7/2025, who reported being assaulted by someone well known to her. On examination, the complainant complained of pain on her frontal part of the head. On examination, she had a swelling on the frontal part of the head with tenderness on her neck on palpation. He made an impression of soft tissue injuries secondary to assault. The approximate age of the injuries was 20 hours. Degree of injury was classified as harm. He produced the P3 Form as Pex no. 2 6. PW4 230818 PC Alfonce Odhiambo, the investigating oficer, stated that the complainant reported the matter at the police station on 9/7/2025, alleging that the accused had assaulted the complainant the previous night while at their plot in Siginga. He recorded the witness statements and issued the complainant with a P3 form which was filled out at Port Victoria Hospital and returned. He visited the scene on 11/7/25 and efiected the arrest of the accused. No one else recorded their statements as they were all part of the same family. He could not establish the ownership of the plot the two argued about. He is not aware of an existing land case no. 94 of 2018. 7. At the close of the prosecution's case, the accused was found with a case to answer and placed on his defence. His evidence was as follows: 8. DW1 Gregory Juma stated on the material day at around 4.30pm, he heard noises on a plot that he had received upon conclusion of a succession case, and which houses were in a very bad state that were to be demolished. He headed to the plot and found people repairing one of the rooms, and they informed him they had instructions to do so from the complainant, who is his niece. Complainant informed him that her mother had authorized the repairs. He demolished the repairs and asked the complainant to fetch her mother. Complainant instead began hurling insults at him. He retreated to his home, but the complainant followed him, where she grabbed him by his shirt, provoking him to beat her. He pushed her away, complainant fell and hit herself against the stones nearby. Later, he was arrested and charged with the ofience which he now denies committing. 9. DW2 Benard Bwire Juma stated to be the complainant and the accused’s neighbour. On the material day, he was at his home when he heard a commotion. He went on to see what was going on and found the complainant grabbing the accused by his shirt as the accused shouted to the complainant to leave him alone. The children nearby were throwing stones at the accused. He asked them to stop and leave the accused alone. The accused pushed the complainant to free himself, and the complainant fell to the ground. After a few minutes, the complainant's brother arrived and began assaulting the accused. He managed to et them ofi of him. 10. DW3 Nicholas Ombere Obira testified that on the material day, he was returning home when he saw the complainant holding the accused by his shirt in a mud house plot along his way. Complainant is the accused’s niece. Nancy kept provoking the accused to beat her, but the accused kept asking her to let him go. The accused pushed the complainant ofi him, causing the complainant to fall to the ground. Later, he visited Accused, who informed him what had transpired earlier. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/259/eng@2026-06-03 2

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11. The prosecution relied on the evidence on record, while the defence, in their submissions, stated that there was no intention of the accused to assault the complainant, but rather, the complainant urged the accused to beat her, hence provocation. He further submitted that the investigations were not conclusive, as no other witness was called upon to corroborate the testimony of the complainant. 12. I have carefully considered the evidence on record as well as the submissions and defence ofiered by the accused. The issue for determination is whether the prosecution proved the ofience of assault causing actual bodily harm beyond reasonable doubt. see the case of Sawe v Republic (2003) eKLR. 13. Ingredients of the ofience of assault were well espoused in the case of Ndaa v Republic [1984] KLR as follows: i. It was the appellant that assaulted the complainant and ii. The assault occasioned actual bodily harm. 14. There is no dispute that an altercation occurred between the complainant and the accused on the material day. The accused himself admitted pushing the complainant. The complainant’s evidence was that the accused strangled her and hit her using fists. This account was corroborated by PW2, who witnessed the assault. Their evidence remained consistent and coherent. 15. Further corroboration was provided by the medical evidence tendered by PW3. The complainant sustained swelling on the head and tenderness on the neck. The neck tenderness particularly supports the complainant’s allegation that she was strangled. The injuries were classified as harm. 16. The defence version was that the complainant sustained injuries after falling on stones when the accused pushed her away. However, despite the defence of provocation, the defence did not satisfactorily explain the tenderness observed on the complainant’s neck. The evidence of PW1 and PW2 was more credible and consistent than that of the defence witnesses, who appeared intent on minimizing the accused’s conduct. 17. The court notes that the dispute arose from a family disagreement regarding ownership and use of the plot. Nevertheless, such disagreement did not justify the use of violence against the complainant. 18. I am satisfied that the prosecution proved beyond reasonable doubt that the accused unlawfully assaulted the complainant and thereby occasioned her actual bodily harm. 19. Accordingly, I find the accused guilty of the ofience of assault causing actual bodily harm contrary to section 251 of the Penal Code and convict him accordingly under section 215 of the Criminal Procedure Code. 20. It is so ordered DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 3RD DAY OF JUNE 2026 HON. ANNE NJERU SRM https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/259/eng@2026-06-03 3

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