Republic v Lukorito (Criminal Case E735 of 2025) [2026] KEMC 567 (KLR)

Prosecution’s Case 3. PW1 Idris Abdul Waswa recalled that on 06th June 2025, while going to the farm, he met the Accused Person, who is his neighbour and cousin armed with a panga. The Accused Person questioned him about the events of 04th June 2025, when he told people who were complaining about the Accused Person’s alleged theft to report the Accused Person to the police. 4. The Accused Person then cut him on the left arm using the panga he was armed with. Mzee Wafula responded to the scene and took the panga from the Accused Person. 5. He reported the matter to the police and thereafter, sought treatment from Kabula Health Centre. Police officers issued him a P3 form, which was later duly filled. 6. He added that the Accused Person had previously assaulted him. 7. In cross-examination, he stated that Mzee Wafula refused to record his statement regarding this matter for reasons he could not tell. 8. PW2 Patrick Simiyu Wabwile testified that on 06th June 2025 at around 1215hrs while coming from work, he saw two people in front of him dressed in a pair of shorts. One of those people was armed with a panga. He then heard one of those people screaming: “Nauawa…” He rushed to the scene where he found a certain mzee, PW1 and the Accused Person. 9. He recognized PW1 since PW1 teaches his children. PW1 told him that the Accused Person had attacked him. He heard the Accused Person telling PW1: “Huwa nakutafuta nitakumaliza…” 10.He stated in cross-examination that he also saw a cut injury on PW1’s right hand. He added that by the time he arrived at the scene, the mzee, whom he only knew by physical appearance, had taken the panga.

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11.PW3 Monica Chemwotich a Clinical Officer at Kabula Health Centre, stated that PW1 visited the facility for treatment on 06 th June 2025, with a history of bleeding from the left palm and pain on the back after being assaulted by a person known to him as Anthony. 12.She added that PW1 was treated by her colleague Christine Mwanabe, who prepared his treatment notes. 13.She examined PW1 and noted that PW1 had a stitched cut wound on the left palm. She filled PW1’s P3 form. 14.She was of the opinion that PW1’s injury to the left arm had been inflicted by a sharp object. She produced the P3 form (Pexh.1) as an exhibit. She also produced PW1’s treatment notes (Pexh.2) on behalf of her colleague who was away on official duty, given that she was familiar with her colleague’s handwriting and signature, having worked together for five years. Accused Persons’ Case 15.At the close of the prosecution's case, this court found and held that the Accused Persons had a case to answer. Directions under section 211 of the Criminal Procedure Code were taken in Kiswahili in the presence of the Accused Person. 16.The Accused Persons elected to remain silent per article 50 (2) (i) of the Constitution. 17.It is given that where an Accused Person elects to remain silent, the court is still obligated to determine whether the prosecution proved its case against the Accused Person beyond reasonable doubt. This court draws inspiration from David Ochieng Aketch vs Republic [2015] eKLR, where the court observed that;

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“The Appellant on being put on his defence he opted to keep quiet. The right to keep quiet is a constitution right enshrined in Article 50 (2) (1) of the Constitution of Kenya 2010. It is one of the components of a fair trial neither should failure to testify be taken as an admission of guilty on an accused part. The trial Court is under a duty in such situation to evaluate the prosecution’s evidence and ensure that the prosecution has proved its case beyond any reasonable doubts…” 18.Be that as it may, while acknowledging the fact that the Accused Person does not have a duty to prove his innocence, this court wonders if it is a wise decision for an Accused Person to remain silent after the court has made a finding that the Accused Person has a case to answer. 19.The consequence of an Accused Person remaining silent after being placed on his defene was well explained by Olel J in AAO v Republic (Criminal Appeal E033 of 2024) [2025] KEHC 6700 (KLR), where the learned judge observed: “The law is that, a person ought to be given an opportunity to defend himself and/or should not be condemned unheard, but where such a person has been given an opportunity and he has spurned it, which occurred in this instant, he has to blame himself for the misfortune that befalls him once the hammer falls.” ANALYSIS AND DETERMINATION 20.This court has given due regard to the evidence on record. This court is of the humble view that the issues for determination are: a) Whether the prosecution proved their case against the Accused Person beyond reasonable doubt b) Whether the failure to call the investigations officer and Mzee Wafula was fatal to the prosecution’s case

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Whether the prosecution proved their case against the Accused Person beyond reasonable doubt 21.Section 251 of the Penal Code provides thus: Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years. 22.In William Kiprotich Cheruiyot v Republic [2021] eKLR, the court, citing with approval Ndaa vs Republic [1984] KLR stated that the essential elements of the offence of assault causing actual bodily harm are; i. Assaulting the complainant or victim, ii. Occasioning actual bodily harm. 23.This court hastens to add that the third ingredient of the offence herein is whether the assault was lawful. A sequential analysis of the ingredients of the offence herein, per the evidence on record, is as follows. 24.On the identity of the assailant, PW1 testified that the Accused Person cut him with a panga on his left arm on the date of the incident. PW2 corroborated PW1’s testimony on the identity of PW1’s assailant by stating that on the date of the incident, he heard PW1 screaming: “Nauawa…” when he rushed to the scene, only to find PW1 bleeding from the right arm as a result of the cut injury. 25.PW2 added that he found the Accused Person at the scene, and another Mzee, not known to him, holding a panga. He also stated that PW1 told him that the Accused Person was the one who had attacked him. 26.Whereas PW2 referred to PW1’s right arm instead of the left arm, this court takes the view that such a trifling inconsistency in the testimony by PW1

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and PW2 does not affect PW2’s credibility. The same may be attributable to the frailty or fragility of human recollection. 27.PW2’s testimony on the events of that day was not impeached even after cross-examination by the Accused Person. 28.It is also noteworthy that when PW1 went to seek treatment from Kabula Health Centre immediately after the incident, he positively identified the Accused Person as his assailant in the medical history he narrated to the medic who attended to him. 29.Further, PW1 and the Accused Person are persons well known to each other, and the incident happened during the day. Therefore, there was no room for mistaken identity. 30.The foregoing inclines this court to find that the Accused Person was positively identified as the assailant. 31.The prosecution led evidence from PW3, who produced PW1’s treatment notes dated 06th June 2025 from Kabula Health Centre showing that PW1 was treated at Kabula Health Centre on the date of the incident for a cut injury. 32.PW3 also produced PW1’s P3 form dated 07th June 2025 corroborating the contents of PW1’s treatment notes. PW3 assessed the injuries sustained by PW1 as harm. She added that the cut injury sustained by PW1 had been inflicted by a sharp object. 33.In the absence of evidence to controvert the medical evidence produced by PW3, this court finds and holds that the prosecution proved beyond reasonable doubt that PW1 sustained actual bodily harm on the date of the incident. 34.The last ingredient of the offence herein is whether PW1’s assault by the Accused Person was lawful.

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35.An assault can be deemed lawful where the alleged assailant acts in selfdefence, in protection of another person, or in protection of property. 36. The evidence on record shows that the Accused Person simply assaulted PW1 for advising people to report the Accused Person to the police for alleged theft cases. Clearly, such an attack cannot be, by any stretch of imagination, lawful. 37.Simply put, the Accused Person unlawfully occasioned PW1 actual bodily harm. Whether the failure to call the investigations officer and Mzee Wafula was fatal to the prosecution’s case 38.The prosecution did not call the investigations officer and Mzee Wafula, who reportedly was present when the Accused Person assaulted the complainant. 39.It is given that, unless the law provides otherwise, there is no given number of witnesses required to prove any fact. This legal position can be gleaned from Section 143 of the Evidence Act, which provides as follows regarding the number of witnesses to be called to prove any fact:“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact” 40.In Bukenya v Uganda, (1972) E.A. 549 the court rendered itself thus on this issue; “It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even

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though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence that is inadequate and it appears that there were others witnesses who were not called, the court is entitled, under the general rule of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.” 41.The common thread running through the authorities above is that the prosecution is not obligated to call a superfluity of witnesses. The prosecution’s duty is to call such number of witnesses that can prove their case to the required standards. The failure to call a certain witness will only be fatal to the prosecution’s case if the evidence led by the other witnesses is barely adequate. 42. The consequence of failing to call an investigating officer has also been a subject of various judicial pronouncements in this jurisdiction. 43. The Court of Appeal in Harward Shikanga Alias Kadogo & another v Republic [2008] KECA 192 (KLR) stated thus on the need to call an investigations officer as a prosecution witness: “We think that in all cases it would be good practice which prosecuting authorities ought to comply with, but the mere failure to comply with it, i.e. calling an investigating officer, cannot automatically result in an acquittal. Each case would have to be considered on its own circumstances in order to determine the effect of such a failure on the entire case for the prosecution. “(Emphasis added) 44. A reading of the Shikanga case (supra) shows that the circumstances of each particular case will determine whether the failure to call an investigating officer was fatal to the prosecution’s case. It thus follows that such an omission will only be fatal if the

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investigating officer was to lead evidence crucial in proving the prosecution’s case beyond reasonable doubt as held in Republic v Alego (Criminal Case 2 of 2019) [2025] KEHC 2692 (KLR), where Sharrif J rendered herself thus on the failure of calling an investigations officer to give crucial evidence: “In this case the effect of the failure by the investigating officer to testify is that the evidence crucial to the case was never exhibited. This omission on the part of the prosecution must attract an adverse inference: that the evidence of the investigating officer would have aided the defence case. See Bukenya & Others v Uganda (2021)UGA 20.” 45. Turning to the circumstances of this case, all the relevant exhibits were produced by PW3. Further, this is a case of recognition where the investigating officer did not need to testify before this court on how he identified the Accused Person before his arrest. 46. It would appear from the evidence on record that the investigating officer’s testimony was only going to be a rendition of the evidence led by the prosecution’s witnesses. 47. Mzee Wafula’s testimony, on the other hand, was to identify the assailant. The failure to call him as a witness was well explained by PW1 who stated that Mzee Wafula had refused to record his statement. A witness cannot be forced to testify. 48. In any event, even in the absence of Mzee Wafula’s testimony, the evidence led by the prosecution witnesses positively identified the Accused Person as PW1’s assailant. 49. The foregoing inclines this court to find that the failure to call the investigations officer and Mzee Wafula to testify before this court was not fatal to the prosecution’s case. DETERMINATION 50.The upshot of the foregoing is that the Accused Person is convicted under section 215 of the Criminal Procedure Code for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. 51.Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 18th day of March 2026.

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T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Karani for the state Accused Person C/A: Mr. Rioba

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