Republic v Odhiambo (Criminal Case E252 of 2026) [2026] KEMC 824 (KLR)

him if he had seen the sheep but he said he had. They requested him to allow them search but he declined. 4. The guard went to check but turned and started pushing them outside the gate. The guard held PW2 cloth near the neck pulled and pushed her towards the gate and she fell down. She was injured on mid finger on the right hand. The guard had a club/rungu which he used to hit her on the left leg when she stood up. She said it was a jembe handle that the guard used to hit her on the left leg thrice. 5. The guard used his fist to hit her on the mouth. PW3 started crying, that is when the guard pulled her back into the church compound where he hit her twice on the left leg. While outside the gate the guard hit her on the left leg. She held the jembe handle tightly that is when she was hit on the mouth with a fist. 6. A boda boda rider passed by and PW3 told him that PW2 was being beaten. The rider came and held the guard and PW2 managed to escape. PW2 said that there was electricity light inside the church compound. The rider one DAUDI called their father Lawrence Chacha who came and they went to Isebania Police Station where they reported the matter. PW2 went to Isebania Sub County Hospital where she was treated. She identified her treatment notes and P3 form produced as exhibits 1 and 2 respectively. 7. The following day she recorded her statement and went with the police to the New life church where they found the sheep which was handed over to PW2’s father. The guard who is the accused herein was arrested 8. PW1 examined and treated PW2 ON 19/5/2026. She said on examination of the complainant she had a swollen lower lips and tender, laceration and tenderness on right mid finger and right wrist joint, bruises on left limb. Diagnosis of soft tissue injuries secondary to assault was made. She then KEHANCHA SPMC CR NO. E252 OF 2026 (JUDGMENT) 2

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produced the treatment and P3 Form as exhibits 1 & 2 respectively. The age of injuries was one day old caused by a blunt force. The degree of injuries was classified as harm. PW4 investigate the case and charged the accused person. The prosecution then closed its case. The Accused Defence 9. DW1 CLINTON ODHIAMBO OTIENO the accused gave unsworn defence and denied the charges. His evidence was that he is a security guard at New Life Church. On 19/5/2026 he was on duty at the church at night. He was patrolling while near the rear gate he saw two girls walking into the church compound. He approached them and asked what they wanted. They told him that they were looking for their sheep. He told them that it was a night. They started a commotion while talking in Kuria language. 10.Mama Pastor heard the commotion and he went to her who told him that they should come at day time. The accused told them to go away so that he can close the gate but the made noise. One went outside but one refused and started moving towards the church. He held her and took her outside while walking. The two girls started making noise while throwing stones at the gate. There were people who were praying inside the church who came out and asked what was going on. While he was explaining the complainant’s father came while armed with a panga. 11.The elders told him to open the gate so that they can go and report the same. He did so and the elders reported the matter to police and they came back. The following day the police came and arrested him at 4:00pm. He was later charged. The accused then closed his defence case. The Law: 12.The offence of Assault Causing Actual Bodily Harm is created under Section 251 of the Penal Code as follows: KEHANCHA SPMC CR NO. E252 OF 2026 (JUDGMENT) 3

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“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years”. Determination: The Burden of Proof 13.The prosecution bears the burden of proof, which proof is beyond any reasonable doubt. The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the state and does not shift to the accused. 14.The degree of proof in criminal cases was properly established in the classicus English case of Woolmington v DPP 1935 A C 462. Similarly, in Bakare v State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”. KEHANCHA SPMC CR NO. E252 OF 2026 (JUDGMENT) 4

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15.Where there is doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the effect of such an occurrence would go to the benefit of an accused person. Whether the prosecution has proved its case beyond any reasonable doubt 16.The essential elements of the offence of assault causing actual bodily harm are; i. Assaulting the Complainant or Victim ii. Occasioning actual bodily harm See the case of Ndaa V Republic [1984] KLR 17.The Prosecution must, therefore, show that the assault has resulted in actual bodily harm. There must be an intention to assault (mens rea) and the assault must have taken place (actus resus). 18.The issue for determination from the evidence on record are as follows; 1) Whether the Complainant sustained injuries amounting to harm 2) Whether the said injuries if any were caused by Accused unlawfully 3) Whether the Accused defence has created doubts in the prosecution case. 19.On the first issue the complainant said that she was injured on the mid finger right hand, hit on the left leg with a rungu thrice, hit on the mouth with a fist. PW3 evidence was that PW2 was hit on the left leg with a rungu, hit on the mouth with a fist; she was injured on the right hand finger. 20.PW1’s evidence was that on detailed examination PW2 had a swollen lower lip and tender, laceration and tenderness on right mid finger and right wrist joint. Bruises on left limb. A diagnosis of soft tissue injuries was made KEHANCHA SPMC CR NO. E252 OF 2026 (JUDGMENT) 5

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secondary to assault. The age of injuries was one day caused by a blunt force. The degree of injuries was classified as harm. 21.The above evidence is consistent and clearly shows that the complainant sustained injuries whose degree is classified as harm. 22.On the second issue, there is no dispute that the accused, PW2 and PW3 were at the scene on the material night the offence occurred. The evidence of PW2 and PW3 was consistent and points to the accused as the person who unlawfully assaulted the complainant. The evidence of PW2 and PW3 was direct and was not challenged by the accused defence. The same remained water tight. The evidence of PW2 and PW3 demonstrates how they encountered the accused who eventually assaulted the complainant. 23.It is my considered opinion that the prosecution has been able to prove its case beyond any reasonable doubt on this issue. Whether the Defence placed doubt on the Prosecution’s case. 24.I have considered the defence and I have noted that it did not place any doubt on the Prosecution’s case. The Prosecution was able to place the accused and complainant in the same room and was able to prove all the ingredients assault beyond reasonable doubt. The accused defence is full of mere denials. There is nothing on the accused’s defence that shook or hurt the Prosecution’s case. 25.In conclusion I find the accused guilty as charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code and, pursuant to section 215 of the Criminal Procedure Code. Dated, Signed and Delivered in open Court at Kehancha on this 27 th day of August, 2026 via Microsoft Teams. KEHANCHA SPMC CR NO. E252 OF 2026 (JUDGMENT) 6

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J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Mang’era/Enock………… Court Assistant Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili Advocate acting for complainant…..Ms. Onyangore Present Advocate for the accused……………Ms. Ndegwa Present KEHANCHA SPMC CR NO. E252 OF 2026 (JUDGMENT) 7

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