BURA MOBILE COURT UNDER HOLA LAW COURTS CRIMINAL CASE NO. E018 OF 2026 REPUBLIC VERSUS YUSUF HASSAN JUDGMENT INTRODUCTION 1. The accused herein was charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars were that on 4/4/2026 at Village One in Tana North sub-County he assaulted Mohamed Ismaile thereby occasioning him bodily harm. PROSECUTION CASE 2. PW1: Mohammed Ismael- Stated that on 4/4/2026, at 0600hrs, Mohammed Ismael visited Abduraman Wadesa's house. While seated on a carpet talking with Abduraman and Ibrahim, the accused, Yusuf Hassan, approached and sat on a stone one metre away. Without saying anything, the accused drew a panga from his hip to cut Ismael. Ibrahim caught the accused's hand mid-air, reducing the force. The panga cut Ismael on his right elbow as he blocked the blow. Abduraman disarmed the accused, who then fled into hiding. Ismael reported the matter at Bura police station, surrendered the panga, and sought treatment at Bura Health Centre. The accused was later arrested at a miraa base. This was the second attack by the accused, following a previous rungu assault. 3. Under cross-examination, Ismael affirmed the weapon was a panga, not a knife. He confirmed the attack happened at 0600hrs in Village 1. He reiterated that the cut was shallow due to Ibrahim intercepting the blow. 4. PW2-Abduraman Wadesa testified that the incident occurred at his home at 0600hrs on 4/4/2026. He was sitting on a carpet with Ismael and Ibrahim when the accused sat on a nearby
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stone. The accused quickly drew a panga from his waist and tried to cut Ismael. The blow was intercepted mid-air, which minimized the depth of the cut on the complainant. Ismael reported the assault to the police and delivered the weapon. He noted the accused was his neighbor and they had no prior issues. He frequently gave the accused casual work. He stated that the accused was later arrested at a miraa den. 5. Under cross-examination, he insisted he was speaking the truth regarding what he witnessed. He did not see the weapon initially because it was concealed in the accused's waist. He stated they had met frequently before the incident without conflict. He did not file an independent report since Ismael had already done so. 6. PW3- Corporal Grace Cheroitich, the Investigating Officer from Bura Police Station, stated the assault occurred in Damacheda, Village One. The complainant was sitting with Mohammed Muhi and Ibrahim Somali when the accused sat next to them on a stone. The accused suddenly rose and pulled out a panga to cut the complainant. The companions restrained the accused, but the panga struck the complainant's right hand. The weapon was recovered and produced in court as exhibit PEXH-3. Cheroitich recorded witness statements and tracked the accused. She arrested him on 16/4/2026, while he was chewing miraa at Manyatta. 7. Under cross-examination, she confirmed the victim was cut on the right hand. She clarified she was not present when the fight broke out. She stated the three witnesses had testified before the court. She noted the arresting officer remained at the station and was not called to testify.Testimony of PW4: Collins Mayabi PW-4 Collins Mayabi, a clinical officer at Bura Sub-County Hospital, prepared the medical P3 form for the 26-year-old complainant, Mohamed Ismael. The patient presented injuries on his right hand from an assault by a known person. Examination revealed a wound and swelling on the right hand side. The
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patient was mentally alert and stable. He administered medication and classified the injury as harm. He produced the P3 Form as PEXH-1 and outpatient records as PEXH-2. 8. Under cross-examination, Mayabi stated the patient arrived at the hospital on 7/4/2026. The report was compiled on 8/4/2026. He admitted he was not the first person to treat the patient but filled out the form. He stated he had no knowledge regarding the location of the accused's arrest. 9. That marked the close of the prosecution case upon which the accused was placed on his defence. THE DEFENCE CASE 10. The accused Yusuf Hassan, gave a sworn defense denying all the allegations against him. He asserted that he was falsely accused and did nothing wrong. On the day of the incident, he was walking along the road to his farm in Bura, Village Two. He claimed the complainant and his friends had issues with him, but he had no issues with them. He maintained he was not with the complainant on that day. Under cross-examination, Hassan denied carrying a panga or cutting trees on that day. He stated he does not consume or chew miraa. He claimed he did not speak to the police during his arrest. He asserted that he had not seen the complainant for over one year prior to the case. 11. That marked the close of the Prosecution case. ISSUES FOR DETERMINATION AND ANALYSIS 12. Section 251 of the Penal Code provides that: Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years. 13. The court of Appeal in Ndaa vs. Republic (Criminal Appeal 146 of 1983) [1984] KECA 19 (KLR) identified the ingredients of the offence as a) assaulting the complainant or victim;
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b) occasioning actual bodily harm 14. Thus the prosecution must give evidence that the accused is the one who assaulted the complainant and the complainant sustained injuries as a result of that assault. Thus I may add, in addition to the two ingredients, it must be proved that it was the accused who inflicted the said injuries. 15. In Alex Mukurakura vs Republic ( 2016) KEHC 7013( KLR) the court stated as follows:"What constitutes "actual bodily harm" for purposes of this Section ............is succinctly and accurately set out in Archibold (1997( ed) at para 19-197:- "Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling… 16. The Prosecution through PW4 presented the evidence of injuries sustained by the complainant vide PEXH-1, the P3 form and PEXH-2 treatment notes which was filled on behalf of the complainant. These were the injuries which are said to have been inflicted by the accused person. The treatment notebook was filled on 7/4/2026 while the P3 was filled on 10/4/2026. 17. While it is true the complainant had injuries on his body and he blames the accused person for the same, there are several inconsistencies in the evidence of the prosecution which I believe go to the root of the case and the same can only be interpreted in favor of the accused person, the favorite child of the law. 18. The first issue is on the dates which have been mentioned in this case. The incident is said to have happened on 4/4/2026 as per the charge sheet. The medical documents, PEXH-1 and PEXH-2 the incident is mentioned as to have occurred on 6/4/2026 and it was reported at the station on 7/4/2026. Unfortunately, the
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prosecution did not try to explain the disparities on the dates considering the accused in his testimony stated that he reported the incident to the police on the same day. If indeed the accused was injured on 4/4/2026 then how come he went to the hospital on 6/4/2026 almost 2 days later. When PW4 filled the P3 form on 10/4/2026 he indicated the age of injuries as being 1 day old yet at this point the accused had already gone to the hospital and he had with him the treatment notes, PEXH-2, how then did the witness arrive at the age of the injuries? 19. Secondly there is the PEXH-3 the alleged weapon which was used to commit the crime. The Prosecution through PW1 and PW2 indicated that the accused was disarmed and the panga taken away from him. It is however not clear who took the panga to the police station and gave it to the police. The panga is said to have blood stains which was never confirmed to belong to the complainant. Even more, the PW3 who was the Investigation Officer, never bothered to explain who gave her the panga and the chain of custody of the same panga before it was brought to court. Without the PW1 and PW2 identifying the Panga as the one they gave to PW3, then the court cannot take it that it was the same weapon used to commit the offence. CONCLUSION 20. All the above issues taken cumulatively give discrepancies which the court is of the considered opinion goes to the root of the case. The discrepancies pointed out herein can only be taken to favor the accused person. The accused might have done the said acts he is accused of but unfortunately the evidence as presented do no warrant him being convicted of the charges. 21. Justice Mativo in Elizabeth Waithiegeni Gatimu vs. Republic [2015] KEHC 1136 (KLR) stated as follows on the issue of evidence and role of the prosecution To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence
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proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty… 22. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. 23. Therefore, the accused is acquitted of the charges pursuant to Section 215 of the Criminal Procedure Code. He is to be set free unless otherwise lawfully held. 24. Right of appeal 14 days. JUDGMENT READ, SIGNED AND DELIVERED IN COURT AT HOLA THIS 10TH DAY OF AUGUST, 2026 W.O KOMBWAYO, RM Delivered in the presence of: Mr. Kagema for the State Accused- Present CA- Kofa Said/Kofa Alfred
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