Republic v Masinde & another (Criminal Case E749 of 2025) [2026] KEMC 687 (KLR)

2. The Accused Persons denied the charge herein. Consequently, this matter proceeding to hearing where the prosecution and the defence led the evidence summarized below. EVIDENCE Prosecution’s Case 3. PW1 Fredrick Sifuna Wanyonyi testified that the Accused Persons were his nephews. He stated that on 08th June 2025 while headed to Nangwe market, he was accosted by the Accused Persons in his napier grass farm who beat him using stones and fimbo until he fell on the ground. 4. He added that his grandson Nelson Baraka witnessed the assault. Nelson rushed to Daniel Barasa’s home and informed him about the attack. Dennis and Caleb responded to the scene and took him to Nalondo hospital for treatment. 5. He also stated that the attack caused him to sustain injuries on his right hand, back, and near his nose. 6. In cross-examination, he stated that the incident took place at around 1500hrs. He also stated that the investigating officer did not record Nelson’s statement since Nelson was a grade 5 learner. 7. He denied having any differences with the 1 st Accused Person. He reiterated that he cannot forgive the Accused Persons. 8. PW2 Dennis Barasa Wanjala testified that the Accused Persons were his neighbours and fellow bodaboda riders. On 08th June 2025, at around 1500hrs, the Accused Persons were repairing their iron-sheet roof when the 1st Accused Person said: “Huyo mzee tutaua…” He then saw the Accused Persons running towards PW1’s shamba.

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9. Nelson went near his fence and told him that the Accused Persons were chasing after PW1. He began heading towards where the Accused Persons were when he saw the 1st Accused Person hitting PW1 with a stone on the head. He also saw the 2nd Accused Person with a fimbo walking away from the scene. He added that he did not see the 2nd Accused Person beating PW1. 10.He found PW1 with injuries on the head and around the mouth, then escorted him to Nalondo Hospital for treatment. 11.In cross-examination, he stated that the 1st Accused Person was his uncle and that he did not have any differences with him. He denied seeing any woman going to the market that day. He reiterated that he saw the Accused Persons running towards PW1 and the 1st Accused Person hit PW1 on the head with a stone. 12.He added that he did not see the 2 nd Accused Person beating PW1, but he saw him walking away from the scene with a fimbo. 13.PW3 Caleb Wekesa Masinde stated that the Accused Persons were his paternal uncles. His evidence was that on the date of the incident at around 1500hrs he was passing along the road near PW1’s shamba when he saw the Accused Persons running after PW1. 14.The Accused Persons caught up with PW1 and beat him using blows and a fimbo. He questioned the Accused Persons why they were beating PW1, but they did not respond. 15.He added that while PW1 was walking away, the 2 nd Accused Person hit him with a fimbo near the mouth, while the 1 st Accused Person hit him with a stone on the head until PW1 fell. 16.PW2 responded to the scene. He told PW2 to take PW1 to Nalondo Hospital for treatment.

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17.In cross-examination, he reiterated that he was present when the 1 st Accused Person used stones to beat PW1 while the 2nd Accused Person used a fimbo to beat PW1. 18.PW4 No. 119003 PC Cheyech Janet of Nalondo Police Station investigated this case. She stated that on 08th June 2025, PW1 went to the police station and reported that while in his shamab, the 1st Accused Person had hit him with a stone on the head while the 2 nd Accused Person had hit him with a fimbo on the jaw. She added that PW2 and PW3 witnessed the incident. 19.She issued PW1 with a P3 form and the same was duly filled. She added that the motive of the attack was a land boundary dispute. 20.PW5 Janet Wandili a Clinical Officer from Nalondo Model Health Centre stated that PW1 visited their facility on 08th June 2025 with a history of having been attacked that day at 1500hrs by persons well known to him. 21.She added that PW1 had injuries on the right cheek, right upper lip, painful left scalp, swollen left hand, and a painful right upper lip. She formed an opinion that the injuries had been inflicted by a blunt object. 22.She produced PW1’s treatment notes (Pexh.1) and P3 form (Pexh.2) as exhibits. assessed the degree of injury as harm. Accused Persons’ Case 23.At the close of the prosecution's case, this court found and held that the Accused Persons had a case to answer. The Accused Persons elected to give sworn testimony, but did not call witnesses. 24.DW1 Ben Wanjala Masinde testified that PW1 and his father had longrunning differences. He added that on the date of the incident, the 2 nd Accused Person was helping him roof his house when PW1 went where

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they were and requested napier grass. He also saw another woman pass by from their home when PW1 slapped her. He further stated that he intervened only for PW1 to accuse him of assaulting him. 25.His testimony was also that PW3 confided in him that he was forced to testify lest he lose his job, given that PW1 had reportedly employed him as a power saw operator. 26.In cross-examination, he could not tell the name of the woman who was reportedly assaulted by PW1. He could not tell if PW1 was ever arrested for assaulting the alleged woman. 27.DW2 Job Wamalwa Masinde stated that on the date of the incident, the 1 st Accused Person was assisting him to roof his house when he told him that he had seen PW1 assaulting another woman in a napier grass plantation. They proceeded to the scene and separated PW1 from that woman. He added that he did not know that woman. 28.He denied committing the offence herein. 29.In cross-examination, he conceded that the alleged woman had not called him to testify in any assault case against PW1. He also stated that he did not have any proof of differences between his father and PW1. He added that he saw PW1 bleeding from his left eye on the date of the incident. ANALYSIS AND DETERMINATION 30.This court has carefully considered the evidence on record. The only issue for determination is whether the prosecution proved beyond reasonable doubt that the Accused Persons assaulted the complainant. 31.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.

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32.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. 33.PW1’s testimony on how he was assaulted on the date of the incident was corroborated by PW3’s and PW2’s testimony, who were present at the scene of crime. PW1’s testimony on his bodily injuries and the probable weapon used to inflict those injuries was corroborated by the contents of the treatment notes and P3 form placed before this court by PW5. 34.PW5 assessed the injuries sustained by PW1 as harm. 35.It is against this background that this court holds and finds that the prosecution proved beyond reasonable doubt that PW1 was assaulted on the date of the incident and sustained injuries assessed as harm. 36.On the identity of the assailants, PW1, PW2, and PW3, evidence that the Accused Persons assaulted PW1 was not shaken even after crossexamination. 37.It is also noteworthy that the incident happened during the day and that the Accused Persons are persons well known to PW1, PW2, and PW3. Therefore, there was no room for mistaken identity. Accused Persons’ Defence 38.This court has given due regard to the Accused Persons’ defence. The Accused Persons denied committing the offence herein. Their testimony was that they only separated PW1 from another woman, whom PW1 reportedly assaulted on the date of the incident. They could not identify that woman.

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39.The Accused Persons also appeared to suggest that the charges herein were trumped up, given that PW1 reportedly had differences with their father. 40.One wonders how PW1 sustained the injuries set out in the treatment notes and the P3 form on record, if at all, he assaulted a helpless woman on the date of the incident. It is also worth noting that the Accused Persons did not cross-examine the prosecution witnesses regarding the alleged assault incident involving PW1 and the unknown woman. 41.On whether the charges facing the Accused Persons stemmed from alleged differences between PW1 and their father, this court finds it hard to believe that PW2 would falsify treatment notes just to fix the Accused Person in a bid to help PW1 settle scores with the Accused Person's father, yet the 2 nd Accused Person admitted seeing the Accused Person injured on the date of the incident. 42.The admission by the 2nd Accused Person that he saw PW1 injured on the date of the incident proves beyond reasonable doubt that PW1 was assaulted on the date of the incident. That assault could not have been committed by the woman, the Accused Persons reportedly separated from PW1 on the date of the incident. 43.Given the reasons above, this court finds and holds that the Accused Persons’ defence was an afterthought and a mere denial, which did not cast any reasonable doubt on the prosecution’s case. The same is dismissed in its entirety. 44.It is against this backdrop that this court finds and holds that the prosecution proved beyond reasonable doubt that the Accused Persons were PW1’s assailants on the date of the incident. 45.Before penning off, it is imperative to address the concerns raised by the Accused Persons on the prosecution’s failure to call Nelson as a witness. It

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is given that Nelson witnessed the incident. That shows that his testimony could have shed more light on this case. 46.Section 143 of the Evidence Act 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” 47.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 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.” 48.A reading of the authorities above reveals 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.

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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. 49.The evidence led by the prosecution in this case was adequate even in the absence of Nelson’s testimony. In the circumstances, the failure by the prosecution to call Nelson as a prosecution witness was not fatal to the prosecution's case. DETERMINATION 50.The upshot of the foregoing is that the Accused Persons are 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 09th day of February 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Achieng for the state Accused Persons C/A: Mr. Rioba

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