Republic v Cholosi

6. On cross-examination he denied assaulting the accused person and stated that it was the accused person who fought them. That they did not injure the accused person and fail to take him to hospital. That he did not see any money or phone being damaged and he did not inform the accused person that he had a pistol. 7. There was no re-examination for this witness. 8. PW2 was one Gilbert Odera Chief of Moding Location who testified that on 17th November 2025 he received a call from the Assistant Chief of Adumai who informed him that the accused person was dealing in illicit brew. They proceeded to his home and the accused person on seeing them got very violent and punched the complainant on the chest. That with the help of the village elder, they were able to subdue the accused person. That the complainant sustained soft tissue injuries on the hand. That at the time of the incident, they were on official duty. 9. On cross-examination he testified that he saw the accused person punch the complainant twice. That the accused person gave his mother coins for safe keeping and he did not see any Kshs. 6,000/=. 10. There was no re-examination for this witness. 11. PW3 was the investigating officer one PC Mary Wanjiru who testified that on 17th November 2025 a case of assault was reported at Moding Police Station where the Assistant Chief Adumai sub location alleged to have been assaulted while on official duty of conducting a raid in his area. That there was changaa belonging to the accused person. That on reaching the house of the accused person he became very violent and assaulted the complainant using kicks and blows on his chest and right leg. He felt pain and had a swelling on the chest and leg. The accused person was forcefully tied and arrested and taken to Moding Police Station where he was processed and arraigned in court to face charges. 12. On cross-examination she testified that when the accused person was presented at the police station he told the officers that he was in pain but the chief had brought witnesses who confirmed that he had been assaulted by the accused person. 13. There was no re-examination for this witness. 14. PW4 was one Gideon Baraza a clinical officer at Moding Health Centre who examined the complainant on 17th November 2025 who had pain on the right leg and chest with the approximate age of injuries being three hours. On taking history of the patient he established that the Judgment Criminal Case No.E584 of 2025 Hon. A.Z Ogange-R.M pg. 2

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complainant is an Assistant Chief who was assaulted when effecting arrest of a person dealing in illicit brew. That the accused person was in fair condition with tenderness on the right leg and chest. He made a diagnosis of soft tissue injuries secondary to assault and he administered antibiotics and analgesics. The complainant reported at the police station, a P3 form was issued and duly filled with the degree of injury being classified as harm. Injuries were consistent with type of weapon being a blunt object namely kicks and blows. He produced treatment book as PEXH 1 and P3 form as PEXH2. 15. On cross-examination he testified that the injuries could not have been occasioned by a fall but only through assault. 16. There was no re-examination for this witness. Pursuant to a ruling delivered on 16th July 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence without calling any witnesses. 17. In defense he testified that he did not assault the complainant but it is the assistant chief and nyumba kumi who assaulted him by pressing on him, stepping on his neck and kicking him severally. The neighbors heard him crying and the assistant chief tied him and they took his money and took him to the police station. 18. On cross-examination he testified that the chief is selective on who he arrests and that the chief hated him. 19. This marked close of the defense case and the matter was reserved for judgment on 3rd September 2026. Analysis and Determination 20. 21. The accused is charged with assault with intent to resist or prevent lawful apprehension or detention contrary to section 253(a) of the Penal Code. Section 253(a) provides that a person commits the offence where he assaults another person with intent to commit a felony or to resist or prevent the lawful apprehension or detainer of himself or another person for an offence. The first issue for determination is whether the accused person assaulted PW1. He testified that while conducting a raid in the execution of his mandate as an Assistant Chief, the accused person became violent upon seeing him, struck him on the chest with a blow and kicked him on the right leg. PW1 testified that he experienced pain and that there was tenderness and swelling. Judgment Criminal Case No.E584 of 2025 Hon. A.Z Ogange-R.M pg. 3

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22. His evidence was materially corroborated by PW2, PW3 and PW4, all of whom testified that PW1 was assaulted. PW4, a clinical officer, further confirmed the injuries sustained by PW1 and produced the treatment notes and P3 form as exhibits 1 and 2. The medical evidence therefore lends independent support to PW1's account of having been physically assaulted. 23. It is therefore the finding of the court that the complainant was indeed assaulted. 24. The difficulty for the prosecution, however, lies in establishing the second and critical ingredient of the offence charged: the intention to resist or prevent lawful apprehension or detention. 25. In John Nyaga Waruri v Republic [2019] KEHC 2199 (KLR), the High Court considered a conviction under section 253(a) of the Penal Code and emphasised that the provision requires proof of an assault accompanied by the requisite intention to resist or prevent lawful apprehension or detention. The Court specifically underscored the requirement of lawful apprehension. 26. In this case, there is no evidence that PW1 communicated to the accused that he was under arrest or that he intended to arrest him. There was equally no evidence of any overt act of arrest, such as an attempt to restrain, apprehend, handcuff or otherwise detain the accused. The evidence is simply that the accused, upon seeing PW1, became violent and assaulted him. It is thereafter that the accused person was restrained. 27. This sequence of events if significant. The evidence does not demonstrate that the accused person assaulted PW1 in order to prevent his apprehension; rather it demonstrates that the accused was restrained as a consequence of the assault. While that conduct may be reprehensible and may establish the physical assault, the Court cannot speculate as to the accused's intention. The fact that PW1 was an Assistant Chief conducting a raid does not, by itself, establish that the accused knew that he was about to be apprehended or that the assault was committed for the purpose of preventing such apprehension. 28. I have also considered the accused's defence that he was himself assaulted and that money was taken from him. The investigating officer confirmed that the accused complained of pain. I do not, however find that this aspect of the defence displaces the consistent evidence of PW1 and corroborated by PW2, PW3 and PW4 and which has been supported by medical evidence. I therefore reject the defence insofar as it seeks to Judgment Criminal Case No.E584 of 2025 Hon. A.Z Ogange-R.M pg. 4

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challenge the occurrence of the assault upon PW1. However, I do not disregard it all together. I have considered alongside the entire prosecution case in determining whether the prosecution proved every ingredient of the offence charged beyond reasonable doubt. 29. Having considered the evidence presented before this court, it is my finding that the complainant was indeed assaulted. However, proof of the assault is not synonymous with proof of the specific intention required under section 253(a). The prosecution was required to establish a nexus between the assault and an intended lawful apprehension or detention. On the evidence before the Court, that nexus has not been established. 30. It is therefore the finding of the court that the prosecution’s evidence in this regard fell short of the required threshold of beyond reasonable doubt and the accused person is acquitted on the offence of assault with intent to prevent lawful apprehension contrary to section 253(a) of the Penal Code under Section 215 of the Criminal Procedure Code. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 3 RD DAY OF SEPTEMBER, 2026. Alex Isogoli- The Accused Person Mr. Rotich Prosecution Counsel Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE 03.09.2026 Judgment Criminal Case No.E584 of 2025 Hon. A.Z Ogange-R.M pg. 5

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