(Arising from the judgment of Hon. Joy Ayieta (R.M) delivered on 16 th October 2025 vide Madiany PM’s Court Criminal case Criminal Case No. E134 of 2024)
1. The appeal herein arises from the judgment of Hon. Joy Ayieta (RM delivered on 16 th October 2025 vide Madiany PM’s Criminal case No. E134 of 2024 wherein she convicted and sentenced the Appellant herein to four years’ imprisonment for the offence of incitement to violence contrary to Section 96 of the Penal Code. The particulars of the offence were that the accused persons on 13 th day of March 2024 at Oyude market in Rarieda Sub County within Siaya County without lawful excuse uttered the words “wezi’’ ‘’wezi” “nisaidieni” an act which was calculated to prevent police officers from arresting her and led to assault and death of a police officer. The Appellant was acquitted of three other charges.
2. The Appellant was aggrieved by the conviction and sentence and thus filed her Memorandum of Appeal although it should have been a Petition of Appeal dated 5 th November 2025 wherein she raised the following grounds of appeal:
i) That the learned trial magistrate erred in law and fact by convicting the Appellant of the offence of incitement to violence contrary to Section 96(1) (3) (a) of the Penal Code while the prosecution did not prove all the elements of the said offence.
ii) That the learned trial magistrate erred in law and fact by convicting the Appellant of the offence of incitement and ignored the Appellant’s defence.
iii) The learned trial magistrate erred in law and fact by convicting the Appellant on a defective charge sheet as the Appellant was charged with an offence whose provision of the law had been declared unconstitutional by the High Court in the case of Johnstone Muthama Vs. DPP & Another [2020] eKLR.
iv) The learned magistrate erred in law and fact by failing to take into account the Appellant’s mitigation and imposing a harsh sentence.
The Appellant therefore prayed that the appeal be allowed, orders of the trial court dated 16/10/2025 and 30/10/2025 be set aside.
3. This being the first appellate court, its duty is well spelt out namely to re-evaluate and analyse the evidence tendered before the trial court and subject it to an independent analysis so as to arrive at its own conclusion as to whether or not to uphold the decision of the trial court. In carrying out this task, the court has to take into consideration the fact that it did not have the opportunity to hear or see the witnesses as they testified and therefore to make due allowance for that. See Okeno Vs. Republic [1972] EA 32.
4. The record of the trial court is that the Appellant together with other sixteen (16) accused persons had been charged with the four counts namely assaulting a police officer in due exercise of the police officer’s duties contrary to Section 103 (a) of the National Police Service Act No. 11 (A) of 2011, obstructing a police officer in due execution of police officers duties contrary to Section 103 (a) of the National Police Service Act No. 11 (A) of 2011, resisting arrest from police officer in due execution of police officers duties contrary to Section 103 (a) of the National Police Service Act No. 11 (A) of 2011 and incitement to violence contrary to Section 96 of the Penal Code.
5. The Respondent’s case commenced in earnest on 9/10/2024 as follows.
6. (Protected witness) PW1 testifies that on 13/03/2024 of around 7:00pm. He was at work and heard a commotion from the market. That he works in Oyude. That he heard screams, (‘’mwizi’’ ‘’mwizi’’ ‘’tafadhali nisadieni’’) and that he went to the market to confirm what was happening. Some people were throwing stones. That he found whoever was screaming. That he found the 1st accused in a yellow kitenge and tying a lesso on her waist and also found a tall man wearing a brown jumper and a black trouser. The third person had a long pair of shorts and a dark chocolate sweater. They were by the shop belonging to the 1st accused. That the 1 st accused has a shop in the market. That the 1 st accused also sells cigarettes and Simba Waragi. That it is only the 1 st accused whom he knew. The tall man in a brown jumper had a pistol and had a bag that they were struggling over with the 1st accused. The bag was made of jeans and some patterns. He identified the bag- Blue denim bag which was marked as PMFI-1. That the 1st accused held the bag with two hands while the tall man in a jumper was holding it on the right. That initially he did not know who he was. That the incident was outside at 1 st accused’s door who requested him to help her snatch the bag from the man. That since he did not know whom they were, he held the bag with two hands and at the same time the 1 st accused held the same with two hands. That he heard the tall gentleman asking his colleague to stand by the door. That the crowd was now growing, he called his colleague Maina. The bag was heavy. That the 1 st accused bit the officer on the right hand and that the officer let go of the bag. That he was still holding the bag. That he stayed with the bag. That the crowd was throwing stones. That the 1 st accused’s lesso fell down. That the tall gentleman asked Pc Maina to leave. That he later learnt that the tall gentleman was Pc Kariuki and that Maina was still standing. That the 1 st accused hit him with her lesso saying ‘nitokee kwa mlango nyinyi wauwaji’. That he opened the bag and saw cigarettes and Simba Waragi. He identified the super match, 4 sachets which were marked as PMFI-2 and Simba Waragi in polythene sachets (21 in number) marked as PMFI-3. That he hid that bag in a bush near the market.
That when he went back to the scene, he found two officers being beaten by the crowd as they were walking. That he informed the crowd that these were police officers. That Pc Kariuki had been assaulted and was bleeding. That the 16th accused enquired whether the two people were officers, and if so, from which station? That he told him that they were from Ndori Police station. Fredrick Otieno was wearing a reflective jacket, who commended that even if they were police officers, they were taking advantage of them and that he attacked Kariuki who fell down and that Fredrick did not manage to take the gun. That officer Kariuki bit him on the hand and that he was bleeding a lot. That the witness informed Fredrick that his acts were not correct as they assaulted Pc Maina and Kariuki. That he requested Pc Maina to run away. That all the accused were present.
That he identified the 1 st accused by name and that the 1st accused hit the officer with her lesso and bit the officer. That he identified the 2nd accused who threw stones at the officers. That he identified the 3rd accused who was in a black short jeans and greenish shirt. That the 3 rd accused hit the officers using his hands.
That he also identified the 4 th accused whom he had known and who was present at the scene and who was throwing stones at the officers. That the 4 th accused was in a black jeans.
That he also identified the 5 th accused whom he had known and who was present in the market and who threw stones at the officers.
That he also identified the 6 th accused whom he had known. He is called Dola at home. That he saw him assaulting the officers. He told him that it was good that he found him with the officer because his brothers had been killed in the market. He said that he was stopping him from attacking thieves.
That he identified the 7 th accused who comes from Nyilima but who was not present at the scene. That he did not see him assault the officers.
That he also identified the 8 th accused as Joseph Ochieng whom he had known. That the 8 th accused is called Ochieng Ras at home. Right now, he is shaved since earlier on he had dreadlocks. That he saw him at the market. He was not present in the beginning. He joined later when officers were being attacked on the road. He had a panga. That he hit Pc Maina on the back. That the 8 th accused instructed him to stop calling him Ochieng.
That he identified the 9 th accused as Ronny Owuor who is popularly referred to in the village as Brandy. That he saw him at the scene. He had a rope. He used it to assault Pc Kariuki and Pc Maina. He had on a Manchester United jersey and ragged jeans. That Pc Kariuki begged him that he was an officer.
That he identified the 10 th accused whom he saw him at the scene and who assaulted him, Kariuki and Maina. That the 10 th accused had a green jacket and a trouser. He had a long rope.
That he also identified the 11 th accused whose name is Awanga Tabu who is a boda-boda rider. That he saw him at the scene as he threw stones which he took from a lady who was selling chips. That he was taking big stones and throwing at the officers. That he used stones that had been used for cooking.
That he knows the 12th accused. He is Comic. He came late at the scene. He came after everything and that he went back to the market. That the crowd wanted to burn him but Comic pleaded with them to leave me. That Comic did not assault the officers as he was not was not present at the time.
That he also identified the 13 th accused whom he kows as Musa. That he saw him at the market donning brown khaki. He was throwing stones. He asked him not to call him Musa. Initially he was armed with a rope. He hit Maina and Kariuki with the stick.
That he also identified the 14 th accused as Nelson Ochieng whom he had known and that he saw him on that date of the incident. He had on a white vest and slippers. He was throwing stones together with 11th accused.
That he also identified the 15 th accused whose name is Samuel Oluoch. He was hitting Pc Maina. He kept saying that the officers were thieves who had gone to steal from him. He rides boda-boda and guards a place at the market.
That he identified the 16 th accused who was present at the scene. He asked him where the officers were coming from. He was present at the scene and who assaulted both officers.
That he identified the 17 th accused as George Odhiambo who was was present at the scene. He had akala and long trousers. The jeans was ragged like the one he had on. He was together with 2nd and 3rd accused persons.
That the incident happened at 7:59 pm. There is a solar street lamp in the market that was the source of light. That the lamp was bright. There were also security lights in the market near the road where officers were also assaulted and that there are security lights from the shops. After the incident, he went back to the market and called the area chief who did not call back. That he went with the bag at home. That they were informed that they were to be lynched at home. He again called area chief who did not care. He then called inspector Tum who came to their home. He informed him what had happened. He took the bag and he took him to the scene. He came with other officers. That the 1 st accused was shouting “thief’’ ‘’thief’’, please help”. That Pc Kariuki was telling 1st accused ‘I am a police officer, don’t make this hard’. That he helped Pc Maina escape from the scene as Pc Kariuki was too weak.
On cross examination, he stated that he has never had a dispute with any of the accused persons and that he does not have his statement. That according to his statement, 14 people were indicated to have assaulted the officers. That he told the officers the list. That the first person in his list was Fredrick Otieno. He recorded the statement after the incident. From his statement, the first one is Caren Okumu. That he mentioned all 14 people. That in his statement, he did not mention what each accused did to the officers. That he mentioned Musa in page 4 of his statement and that Musa hit him with a club on the left of his rib.
That he recorded his brief statement as instructed and that he was very sick. That he had been assaulted. That he was also receiving a lot of threats. That he later called all the others to record. That he did not do any additional statement. That he did not record what Mango did. That he did not record what Ngure did to the officer. That he did not mention anything on Comic Alila, 12th accused. That he didn’t tell officers that he was at the scene.
That the 1 st accused has m-pesa shop selling milk, cigarettes, Waragi. That initially, he could not tell whom the 1 st accused was struggling with over a bag. That he gave the bag to inspector Tum on 13/03/2024 at around 10:00pm. That the scene started at the market. That it was not in one place. That the second scene was by someone’s shop near the road. That he ran away to hide the bag and that when he returned, they were in front of Mama Grace’s shop. There was security light. That he helped Pc Maina escape and helped him run to the corridor. That he mentioned the accused persons with their names and nicknames.
On being cross examined by Mr. Lore, he stated that he recorded his statement on 19/03/2024 which he identified it in court and which was marked market as DMFI-1. That he did not carry Pc Maina on a motorcycle. That he just showed him the escape corridor. That he was injured. That he sought for treatment the following day. That he cannot tell which part of Pc Maina’s body was injured. That he was present when Pc Kariuki was bitten on the hand. When he heard screams ‘mwizi mwizi’, he was nearby in the market and that sellers were present though not a big market. It took place where those who sell vegetables and fish in the market operate. That he was at his place of work when he heard commotion approximately 30 meters away. There were other traders. That he is a vice chairman of the market and that is why he responded. That he went to the scene as the vice chairman of the market. That their chairman was sick and the secretary was away. That he was the only official at the market at the time.
7. Number 120015 Pc Wilfred Maina (PW2) testified that he is stationed at Ndori police station. That on 13/3/2024, he together with Inspector Simon Kariuki booked out on inquires to effect crackdown on illicit brews within Oyude market area. That they boarded a motorcycle heading towards Oyude market ridden by one Dickson. They arrived at Oyude market at around 1930 hours when they alighted.
That upon arrival, Inspector Kariuki identified a man who appeared to be drunk and sweet- talked him and gave him a Ksh. 100 note. Inspector Kariuki informed him of what they were enquiring at the market. They went to the kiosk at the centre of the market owned by the 1st accused. They entered the shop. Inspector Kariuki identified themselves as members of police service from Ndori police station and that they showed their certificate of appointment. It is like an ID card for Kenya police force. They identified themselves to the 1st accused. The 1st accused upon realising that we were members of police service, closed the small entrance door and started screaming while claiming that we were thieves. The late inspector Kariuki put his hand into the small centre door and opened it. That upon opening, he put his hand inside the shop and got hold of a small bag which contained sachets of Waragi and super match. That upon holding the bag, they moved inside the shop. The 1st accused continued screaming while claiming that they were thieves. Members of the public within the market came and started attacking them with crude weapons i.e. pangas, stones, and event went to an extent of snatching the bag he was holding. Since it was late in the night, they could not clearly identify all of them. But since there was a good Samaritan assisting them, he could identify all of them.
That he is familiar with the area of the market. That he had chest pains, and swollen wounds at the back. That he was able to escape from the market with the help of the good Samaritan. When he assisted him, he later went to secure his late colleague. That the mob overpowered them. That he sought for treatment from the hospital. That he went on 14/03/2024 to Ndori health centre where he was treated. He identified the treatment notes from Ndori health centre which was marked as PMFI-4 while the P3 form was marked as PMFI-5.
That the incident occurred at 9:00p.m. There is a flood light at the market place at the centre of the market and that there were bulbs inside the shop. That the 1st accused is the person they left at the kiosk although she objected when they went to her shop. That their intentions were to arrest the 1st accused who did not comply but started screaming.
On being cross examined by Mr. Ooro, she stated that the incident took place at around 9.00 pm. That they arrived at Oyude market at around 7:00pm and that Inspector Kariuki was the boss and as such he was the one who introduced himself. That he did not introduce myself. That he recovered 21 sachets from the 1 st accused. That he recovered them in a bag which he held. That the mob overpowered them and took away the bag from him. That he didn’t know how the bag was later on recovered.
Oyude is his area of jurisdiction and that he knows some people in the market. That he had seen accused persons before in Oyude market and could identify one person on dreadlocks if an identification parade was there, he would have identified them. That upon arrest, he was called to identify the suspects. The identification parade was not done. That he sustained injuries on chest and had pains on the back and swollen hands. The crude weapons i.e. stones, rungus, clubs caused the pain. The mob was armed with pangas and rungus but he did not have a deep cut wound.
On being cross examined by Mr. Lore, he indicated that no x-ray was conducted on him. That he has not identified the bag that he had taken from the scene. That the crude weapons were not brought to court.
On re-examination, he stated that they stayed at the market for 2 – 3 hours and that they left the market at around 10.00 pm.
8. Number 65761 senior sergeant Japhet Ngetich (PW3) testified that on 13/03/2024 during evening hours, he was at Kalandini area when he received information from inspector Manase Tum and the context was that officers from Ndori police station had gone to Oyude market on official duties to enforce crackdown on illicit brews. Further information was that inspector Kariuki and Pc Maina had visited one of the shops, mpesa shop of 1st accused and while enforcing the crackdown on illicit brews, the 1 st accused raised alarm and the officers were attacked.
That after receiving the information, he and other officers from Aram police station rushed to the scene and found the body of inspector Simon Kariuki lying on the tarmac road. They walked through the scene and was able to find out that the head had multiple fractures, body was naked and lying on the tarmac. At that moment, they commenced interviewing people around. Inspector Manasse Tum got a witness willing to assist with all information and happenings during the chaos. Because inspector Tum is conversant with the area, he had other informants who gave us the picture of what had happened. He and team of officers were able to rely on witness information who was able to give us names of perpetrators and through combined effort of witness and informants, we were able to arrest suspects from different locations.
The witness mentioned each and every person he saw at the scene as he knew them by names and aliases as he was from the local area. He was able to mention that Musa Ochango hit inspector Kariuki with a club and that the deceased fell. He also mentioned Grandi who claimed that they had killed the thieves. He stated that the information led them to recoveries. The said witness informed them that he had picked the bag with Simba Waragi and unaccustomed cigarettes. That the bag was handed over to them by inspector Tum and that he identified it in court.
The witness further led them to the 2 nd accused who was mentioned that he had picked the firearm. The witness informed them that he tried to assist the deceased and Pc Wilfred to escape. He informed them that they were being assaulted. We did not find Pc Maina at the scene. He informed them that the said accused persons obstructed the arrest of the 1st accused person by causing chaos. That he teamed up with the investigating officer by recording statements of witnesses and was involved in the arrest of accused persons.
On cross examination by Mr. Ooro, he stated that he received a call from Manasee Tum and only arrived at the scene after the incident had taken place. That his testimony is based on information that led to the recovery. That they had a credible witness who aided them identify accused persons. Witness had their names and operates in that area. Identification parade was not done. That the witness was identifying them by names. Facts given by witness were true. They recorded witnesses’ statements. Other witnesses gave information and were not willing to record statements. He further stated that he had not produced any inventory although it was prepared. That he has not identified it today. That he was present when this bag was being handed over to the police. The witness brought the bag to the scene. That he was with inspector Tum. That he visited the scene severally after the incident. That the information led to the recoveries and the arrest of the accused persons.
9. Sammy Luzuvi (PW4) testified that he is a senior medical officer working at Ongielo Health Centre. That he has a P3 form in regard to Wilfred Maina. That he presented himself to Ndori health centre with complaints of having been assaulted in his line of duty during robbery with violence in Oyude market on 13/03/2024 at 2000hours. Generally, he was present with fair condition and not under influence of drugs. That on the thorax and abdomen, there was tenderness on the chest. That on the upper limbs, there was tenderness, bruises and swelling on both upper limbs. The neck and lower limbs had no injuries. That the approximate age of injury was 12 hours. That the probable weapon was a blunt object. That he was treated with antibiotics and that the degree of injury was classified as harm. That he signed the P3 form on 04/04/2024. That the treatment note dated 14/03/2024 captures the stated injuries. P3 form was produced as exhibit-5 and treatment notes as exhibit-4 and that the patient was still in pain at the time of examination.
On being cross examined, he stated that he filled the P3 form on 04/04/2024. That he examined patient on 14/03/2024. That he does not know why the patient did not bring P3 form at the time of treatment. On 04/04/2024, he used treatment notes. A blunt object cannot cause a cut, just bruises. i.e. cane, log of wood, hand etc. That there are stones that are sharp objects and that it will be difficult to ascertain the exact weapon. That it is possible that it was a stone. Complainant claimed that he was assaulted while in line of duty. Injury sustained probably is not as a result of mob injustice based on the injuries.
On re-examination, he stated that it is possible that it was from a mob injustice.
10. Number 241334 Inspector Joseph Akama (PW5) stated that he is the deputy DCIO Rarieda and investigating officer to this matter before court. Matter is based on incident at Oyude market where two officers went to enforce government directives on crackdown of illicit brews, and the two officers were IP Kariuki and Pc Maina of Ndori police station. When the two officers were enforcing that directive, they were assaulted by a mob where one officer was fatally injured. The injured Pc Maina reported the matter at Ndori police station and investigations were conducted. P3 form was issued to Pc Main. Suspects were arraigned in court and charged accordingly.
That they were able to identify through assistance of a protected witness and intelligence from members of the public. Witness witnessed the assault. Probable tools used were crude weapons. i.e. sticks and stones. Complainant could not point out specific people. Oyude market is served by a flood light that is well lit. Accused persons are from within Oyude market. Complainant was assaulted within the market. Pc Maina and IP Kariuki had gone to arrest the 1st accused who was selling illicit brews. They recovered a bag containing Simba Waragi and 4 packets of super match cigarettes. That they produced the demin bag as Exhibit 1, 4 packets of super match cigarettes as exhibit 2 and 21 sachets of Simba Waragi as Exhibit 3.
On cross examination, he stated that the identification of perpetrators would be possible and that it is important that the accused person is properly identified. Protected witness aided them in identifying accused persons. Complainant does not know who attacked him. That they used protected witness to identify accused persons. Protected witness gave his statement under oath. From information he gave them, led them to the discovery of exhibits. That the victim confirmed that he was well familiar with the market and with the aid of flood light, he was unable to identify a single perpetrator. Apart from protected witness, there is no other eye witness. Protected witness claimed that the 12th accused came after incident had occurred and which is an information he was getting right then. The bag exhibit-1 belonged to the 1s accused. From chain of custody of the bag, it was traced back to 1 st accused.
On cross examination, he stated that they did not conduct an identification parade.
On re-examination, he stated that the 12 th accused was mentioned by a co-accused.
11. That marked the close of the Respondent’s case and that the trial court later ruled that a prima facie case had been established against all the accused persons and who were subsequently placed on their defence. Learned counsel for the defence indicated to the court that he would tender sworn evidence and will call a total of thirty-two witnesses.
12. Caren Atieno Okumu (DW1) testified that she lives in Onjiko village near Oyude market. That she operates an mpesa shop and a shop in Oyude market. That on 13/03/2024, she was at Oyude mpesa shop. At about 8:00pm, two men walked into her shop. That one slapped her, the other held her ‘kikapu’. That she did not know them and that they did not introduce themselves. That they were not dressed in police uniform. That she did not see anyone of them armed. That she did not see anyone with handcuffs. That she did not know who they were. That robberies of mpesa shops was rampant. That one man struggled over her kikapu. That she screamed and that people came to her rescue. That she took her bag and went home. That later that night people knocked on her door and ransacked her house and her store. That they did not find anything. That they took her work phone and personal phone. That at the land cruiser, they asked her to sit on the floor of the land cruiser until they reached the police station. That when they came home, they were looking for alcohol. That she was home with her co-wife. She was in her house. That her co-wife was also ransacked and were both arrested.
On cross examination, she stated that she has a shop at Oyude and that she was present at the shop. That there was light from the sun-king solar lamp and that she could not see them clearly because they got in and slapped her. That she saw them but could not identify them. That there is a flood light in the market. At home, they were looking for alcohol. That she raised an alarm and that they left the kikapu. That they did not take any money. That they got inside the shop. That she knows that they were robbers because they slapped her. That she had money inside the kikapu. That they never left with the kikapu. That she was informed while inside the land cruiser that someone had been killed.
That she raised an alarm because she had been ambushed. That she uttered the words “help me” “help me”. That she was alone in the shop. That she had the shop for five years. That she doesn’t sell alcohol. That she closed her shop and left for home. That there was no one in her shop that is why she closed the door until she left for home. That her home is not far. That she had her kikapu at home. That she could not go and report because it was at night. That she had money in her bag which she uses as float and to trade. That she had never seen officers visit to the market. That she used to close her shop at 8:00pm or 8: 30pm. That they came past 8:00pm. That she knows the accused persons but before that she did not know them. That she only knows one namely the 15 th accused because he resides in the market and stays in a compound across the road. That she got scared of the slap and that they entered inside the shop.
On re-examination, she stated that she raised an alarm and that they left her bag because people came. That she closed her shop and left.
The defence counsel closed the Appellant’s case.
13. The learned trial magistrate convicted the Appellant herein on the fourth count while acquitting the rest of the Appellant’s co-accused in all the four counts. This has precipitated this appeal.
14. The appeal was canvassed by way of written submissions. However it is only the Appellant who complied. The Respondent conceded to the appeal on the grounds that the Section under which the Appellant had been charged had already been declared unconstitutional vide the case of Johnston Muthama & Another Vs. the DPP [2020] eKLR.
15. I have considered the record of appeal and the submissions filed. It is not in dispute that the Appellant herein has been acquitted of all the charges except the 4 th count of incitement to violence contrary to Section 96 of the Penal Code. It is also not in dispute that all the Appellant’s co-accused were acquitted of the first three charges. I find th
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1. The appeal herein arises from the judgment of Hon. Joy Ayieta (RM delivered on 16 th October 2025 vide Madiany PM’s Criminal case No. E134 of 2024 wherein she convicted and sentenced the Appellant herein to four years’ imprisonment for the offence of incitement to violence contrary to Section 96 of the Penal Code. The particulars of the offence were that the accused persons on 13 th day of March 2024 at Oyude market in Rarieda Sub County within Siaya County without lawful excuse uttered the words “wezi’’ ‘’wezi” “nisaidieni” an act which was calculated to prevent police officers from arresting her and led to assault and death of a police officer. The Appellant was acquitted of three other charges.
2. The Appellant was aggrieved by the conviction and sentence and thus filed her Memorandum of Appeal although it should have been a Petition of Appeal dated 5 th November 2025 wherein she raised the following grounds of appeal:
i) That the learned trial magistrate erred in law and fact by convicting the Appellant of the offence of incitement to violence contrary to Section 96(1) (3) (a) of the Penal Code while the prosecution did not prove all the elements of the said offence.
ii) That the learned trial magistrate erred in law and fact by convicting the Appellant of the offence of incitement and ignored the Appellant’s defence.
iii) The learned trial magistrate erred in law and fact by convicting the Appellant on a defective charge sheet as the Appellant was charged with an offence whose provision of the law had been declared unconstitutional by the High Court in the case of Johnstone Muthama Vs. DPP & Another [2020] eKLR.
iv) The learned magistrate erred in law and fact by failing to take into account the Appellant’s mitigation and imposing a harsh sentence.
The Appellant therefore prayed that the appeal be allowed, orders of the trial court dated 16/10/2025 and 30/10/2025 be set aside.
3. This being the first appellate court, its duty is well spelt out namely to re-evaluate and analyse the evidence tendered before the trial court and subject it to an independent analysis so as to arrive at its own conclusion as to whether or not to uphold the decision of the trial court. In carrying out this task, the court has to take into consideration the fact that it did not have the opportunity to hear or see the witnesses as they testified and therefore to make due allowance for that. See Okeno Vs. Republic [1972] EA 32.
4. The record of the trial court is that the Appellant together with other sixteen (16) accused persons had been charged with the four counts namely assaulting a police officer in due exercise of the police officer’s duties contrary to Section 103 (a) of the National Police Service Act No. 11 (A) of 2011, obstructing a police officer in due execution of police officers duties contrary to Section 103 (a) of the National Police Service Act No. 11 (A) of 2011, resisting arrest from police officer in due execution of police officers duties contrary to Section 103 (a) of the National Police Service Act No. 11 (A) of 2011 and incitement to violence contrary to Section 96 of the Penal Code.
5. The Respondent’s case commenced in earnest on 9/10/2024 as follows.
6. (Protected witness) PW1 testifies that on 13/03/2024 of around 7:00pm. He was at work and heard a commotion from the market. That he works in Oyude. That he heard screams, (‘’mwizi’’ ‘’mwizi’’ ‘’tafadhali nisadieni’’) and that he went to the market to confirm what was happening. Some people were throwing stones. That he found whoever was screaming. That he found the 1st accused in a yellow kitenge and tying a lesso on her waist and also found a tall man wearing a brown jumper and a black trouser. The third person had a long pair of shorts and a dark chocolate sweater. They were by the shop belonging to the 1st accused. That the 1 st accused has a shop in the market. That the 1 st accused also sells cigarettes and Simba Waragi. That it is only the 1 st accused whom he knew. The tall man in a brown jumper had a pistol and had a bag that they were struggling over with the 1st accused. The bag was made of jeans and some patterns. He identified the bag- Blue denim bag which was marked as PMFI-1. That the 1st accused held the bag with two hands while the tall man in a jumper was holding it on the right. That initially he did not know who he was. That the incident was outside at 1 st accused’s door who requested him to help her snatch the bag from the man. That since he did not know whom they were, he held the bag with two hands and at the same time the 1 st accused held the same with two hands. That he heard the tall gentleman asking his colleague to stand by the door. That the crowd was now growing, he called his colleague Maina. The bag was heavy. That the 1 st accused bit the officer on the right hand and that the officer let go of the bag. That he was still holding the bag. That he stayed with the bag. That the crowd was throwing stones. That the 1 st accused’s lesso fell down. That the tall gentleman asked Pc Maina to leave. That he later learnt that the tall gentleman was Pc Kariuki and that Maina was still standing. That the 1 st accused hit him with her lesso saying ‘nitokee kwa mlango nyinyi wauwaji’. That he opened the bag and saw cigarettes and Simba Waragi. He identified the super match, 4 sachets which were marked as PMFI-2 and Simba Waragi in polythene sachets (21 in number) marked as PMFI-3. That he hid that bag in a bush near the market.
That when he went back to the scene, he found two officers being beaten by the crowd as they were walking. That he informed the crowd that these were police officers. That Pc Kariuki had been assaulted and was bleeding. That the 16th accused enquired whether the two people were officers, and if so, from which station? That he told him that they were from Ndori Police station. Fredrick Otieno was wearing a reflective jacket, who commended that even if they were police officers, they were taking advantage of them and that he attacked Kariuki who fell down and that Fredrick did not manage to take the gun. That officer Kariuki bit him on the hand and that he was bleeding a lot. That the witness informed Fredrick that his acts were not correct as they assaulted Pc Maina and Kariuki. That he requested Pc Maina to run away. That all the accused were present.
That he identified the 1 st accused by name and that the 1st accused hit the officer with her lesso and bit the officer. That he identified the 2nd accused who threw stones at the officers. That he identified the 3rd accused who was in a black short jeans and greenish shirt. That the 3 rd accused hit the officers using his hands.
That he also identified the 4 th accused whom he had known and who was present at the scene and who was throwing stones at the officers. That the 4 th accused was in a black jeans.
That he also identified the 5 th accused whom he had known and who was present in the market and who threw stones at the officers.
That he also identified the 6 th accused whom he had known. He is called Dola at home. That he saw him assaulting the officers. He told him that it was good that he found him with the officer because his brothers had been killed in the market. He said that he was stopping him from attacking thieves.
That he identified the 7 th accused who comes from Nyilima but who was not present at the scene. That he did not see him assault the officers.
That he also identified the 8 th accused as Joseph Ochieng whom he had known. That the 8 th accused is called Ochieng Ras at home. Right now, he is shaved since earlier on he had dreadlocks. That he saw him at the market. He was not present in the beginning. He joined later when officers were being attacked on the road. He had a panga. That he hit Pc Maina on the back. That the 8 th accused instructed him to stop calling him Ochieng.
That he identified the 9 th accused as Ronny Owuor who is popularly referred to in the village as Brandy. That he saw him at the scene. He had a rope. He used it to assault Pc Kariuki and Pc Maina. He had on a Manchester United jersey and ragged jeans. That Pc Kariuki begged him that he was an officer.
That he identified the 10 th accused whom he saw him at the scene and who assaulted him, Kariuki and Maina. That the 10 th accused had a green jacket and a trouser. He had a long rope.
That he also identified the 11 th accused whose name is Awanga Tabu who is a boda-boda rider. That he saw him at the scene as he threw stones which he took from a lady who was selling chips. That he was taking big stones and throwing at the officers. That he used stones that had been used for cooking.
That he knows the 12th accused. He is Comic. He came late at the scene. He came after everything and that he went back to the market. That the crowd wanted to burn him but Comic pleaded with them to leave me. That Comic did not assault the officers as he was not was not present at the time.
That he also identified the 13 th accused whom he kows as Musa. That he saw him at the market donning brown khaki. He was throwing stones. He asked him not to call him Musa. Initially he was armed with a rope. He hit Maina and Kariuki with the stick.
That he also identified the 14 th accused as Nelson Ochieng whom he had known and that he saw him on that date of the incident. He had on a white vest and slippers. He was throwing stones together with 11th accused.
That he also identified the 15 th accused whose name is Samuel Oluoch. He was hitting Pc Maina. He kept saying that the officers were thieves who had gone to steal from him. He rides boda-boda and guards a place at the market.
That he identified the 16 th accused who was present at the scene. He asked him where the officers were coming from. He was present at the scene and who assaulted both officers.
That he identified the 17 th accused as George Odhiambo who was was present at the scene. He had akala and long trousers. The jeans was ragged like the one he had on. He was together with 2nd and 3rd accused persons.
That the incident happened at 7:59 pm. There is a solar street lamp in the market that was the source of light. That the lamp was bright. There were also security lights in the market near the road where officers were also assaulted and that there are security lights from the shops. After the incident, he went back to the market and called the area chief who did not call back. That he went with the bag at home. That they were informed that they were to be lynched at home. He again called area chief who did not care. He then called inspector Tum who came to their home. He informed him what had happened. He took the bag and he took him to the scene. He came with other officers. That the 1 st accused was shouting “thief’’ ‘’thief’’, please help”. That Pc Kariuki was telling 1st accused ‘I am a police officer, don’t make this hard’. That he helped Pc Maina escape from the scene as Pc Kariuki was too weak.
On cross examination, he stated that he has never had a dispute with any of the accused persons and that he does not have his statement. That according to his statement, 14 people were indicated to have assaulted the officers. That he told the officers the list. That the first person in his list was Fredrick Otieno. He recorded the statement after the incident. From his statement, the first one is Caren Okumu. That he mentioned all 14 people. That in his statement, he did not mention what each accused did to the officers. That he mentioned Musa in page 4 of his statement and that Musa hit him with a club on the left of his rib.
That he recorded his brief statement as instructed and that he was very sick. That he had been assaulted. That he was also receiving a lot of threats. That he later called all the others to record. That he did not do any additional statement. That he did not record what Mango did. That he did not record what Ngure did to the officer. That he did not mention anything on Comic Alila, 12th accused. That he didn’t tell officers that he was at the scene.
That the 1 st accused has m-pesa shop selling milk, cigarettes, Waragi. That initially, he could not tell whom the 1 st accused was struggling with over a bag. That he gave the bag to inspector Tum on 13/03/2024 at around 10:00pm. That the scene started at the market. That it was not in one place. That the second scene was by someone’s shop near the road. That he ran away to hide the bag and that when he returned, they were in front of Mama Grace’s shop. There was security light. That he helped Pc Maina escape and helped him run to the corridor. That he mentioned the accused persons with their names and nicknames.
On being cross examined by Mr. Lore, he stated that he recorded his statement on 19/03/2024 which he identified it in court and which was marked market as DMFI-1. That he did not carry Pc Maina on a motorcycle. That he just showed him the escape corridor. That he was injured. That he sought for treatment the following day. That he cannot tell which part of Pc Maina’s body was injured. That he was present when Pc Kariuki was bitten on the hand. When he heard screams ‘mwizi mwizi’, he was nearby in the market and that sellers were present though not a big market. It took place where those who sell vegetables and fish in the market operate. That he was at his place of work when he heard commotion approximately 30 meters away. There were other traders. That he is a vice chairman of the market and that is why he responded. That he went to the scene as the vice chairman of the market. That their chairman was sick and the secretary was away. That he was the only official at the market at the time.
7. Number 120015 Pc Wilfred Maina (PW2) testified that he is stationed at Ndori police station. That on 13/3/2024, he together with Inspector Simon Kariuki booked out on inquires to effect crackdown on illicit brews within Oyude market area. That they boarded a motorcycle heading towards Oyude market ridden by one Dickson. They arrived at Oyude market at around 1930 hours when they alighted.
That upon arrival, Inspector Kariuki identified a man who appeared to be drunk and sweet- talked him and gave him a Ksh. 100 note. Inspector Kariuki informed him of what they were enquiring at the market. They went to the kiosk at the centre of the market owned by the 1st accused. They entered the shop. Inspector Kariuki identified themselves as members of police service from Ndori police station and that they showed their certificate of appointment. It is like an ID card for Kenya police force. They identified themselves to the 1st accused. The 1st accused upon realising that we were members of police service, closed the small entrance door and started screaming while claiming that we were thieves. The late inspector Kariuki put his hand into the small centre door and opened it. That upon opening, he put his hand inside the shop and got hold of a small bag which contained sachets of Waragi and super match. That upon holding the bag, they moved inside the shop. The 1st accused continued screaming while claiming that they were thieves. Members of the public within the market came and started attacking them with crude weapons i.e. pangas, stones, and event went to an extent of snatching the bag he was holding. Since it was late in the night, they could not clearly identify all of them. But since there was a good Samaritan assisting them, he could identify all of them.
That he is familiar with the area of the market. That he had chest pains, and swollen wounds at the back. That he was able to escape from the market with the help of the good Samaritan. When he assisted him, he later went to secure his late colleague. That the mob overpowered them. That he sought for treatment from the hospital. That he went on 14/03/2024 to Ndori health centre where he was treated. He identified the treatment notes from Ndori health centre which was marked as PMFI-4 while the P3 form was marked as PMFI-5.
That the incident occurred at 9:00p.m. There is a flood light at the market place at the centre of the market and that there were bulbs inside the shop. That the 1st accused is the person they left at the kiosk although she objected when they went to her shop. That their intentions were to arrest the 1st accused who did not comply but started screaming.
On being cross examined by Mr. Ooro, she stated that the incident took place at around 9.00 pm. That they arrived at Oyude market at around 7:00pm and that Inspector Kariuki was the boss and as such he was the one who introduced himself. That he did not introduce myself. That he recovered 21 sachets from the 1 st accused. That he recovered them in a bag which he held. That the mob overpowered them and took away the bag from him. That he didn’t know how the bag was later on recovered.
Oyude is his area of jurisdiction and that he knows some people in the market. That he had seen accused persons before in Oyude market and could identify one person on dreadlocks if an identification parade was there, he would have identified them. That upon arrest, he was called to identify the suspects. The identification parade was not done. That he sustained injuries on chest and had pains on the back and swollen hands. The crude weapons i.e. stones, rungus, clubs caused the pain. The mob was armed with pangas and rungus but he did not have a deep cut wound.
On being cross examined by Mr. Lore, he indicated that no x-ray was conducted on him. That he has not identified the bag that he had taken from the scene. That the crude weapons were not brought to court.
On re-examination, he stated that they stayed at the market for 2 – 3 hours and that they left the market at around 10.00 pm.
8. Number 65761 senior sergeant Japhet Ngetich (PW3) testified that on 13/03/2024 during evening hours, he was at Kalandini area when he received information from inspector Manase Tum and the context was that officers from Ndori police station had gone to Oyude market on official duties to enforce crackdown on illicit brews. Further information was that inspector Kariuki and Pc Maina had visited one of the shops, mpesa shop of 1st accused and while enforcing the crackdown on illicit brews, the 1 st accused raised alarm and the officers were attacked.
That after receiving the information, he and other officers from Aram police station rushed to the scene and found the body of inspector Simon Kariuki lying on the tarmac road. They walked through the scene and was able to find out that the head had multiple fractures, body was naked and lying on the tarmac. At that moment, they commenced interviewing people around. Inspector Manasse Tum got a witness willing to assist with all information and happenings during the chaos. Because inspector Tum is conversant with the area, he had other informants who gave us the picture of what had happened. He and team of officers were able to rely on witness information who was able to give us names of perpetrators and through combined effort of witness and informants, we were able to arrest suspects from different locations.
The witness mentioned each and every person he saw at the scene as he knew them by names and aliases as he was from the local area. He was able to mention that Musa Ochango hit inspector Kariuki with a club and that the deceased fell. He also mentioned Grandi who claimed that they had killed the thieves. He stated that the information led them to recoveries. The said witness informed them that he had picked the bag with Simba Waragi and unaccustomed cigarettes. That the bag was handed over to them by inspector Tum and that he identified it in court.
The witness further led them to the 2 nd accused who was mentioned that he had picked the firearm. The witness informed them that he tried to assist the deceased and Pc Wilfred to escape. He informed them that they were being assaulted. We did not find Pc Maina at the scene. He informed them that the said accused persons obstructed the arrest of the 1st accused person by causing chaos. That he teamed up with the investigating officer by recording statements of witnesses and was involved in the arrest of accused persons.
On cross examination by Mr. Ooro, he stated that he received a call from Manasee Tum and only arrived at the scene after the incident had taken place. That his testimony is based on information that led to the recovery. That they had a credible witness who aided them identify accused persons. Witness had their names and operates in that area. Identification parade was not done. That the witness was identifying them by names. Facts given by witness were true. They recorded witnesses’ statements. Other witnesses gave information and were not willing to record statements. He further stated that he had not produced any inventory although it was prepared. That he has not identified it today. That he was present when this bag was being handed over to the police. The witness brought the bag to the scene. That he was with inspector Tum. That he visited the scene severally after the incident. That the information led to the recoveries and the arrest of the accused persons.
9. Sammy Luzuvi (PW4) testified that he is a senior medical officer working at Ongielo Health Centre. That he has a P3 form in regard to Wilfred Maina. That he presented himself to Ndori health centre with complaints of having been assaulted in his line of duty during robbery with violence in Oyude market on 13/03/2024 at 2000hours. Generally, he was present with fair condition and not under influence of drugs. That on the thorax and abdomen, there was tenderness on the chest. That on the upper limbs, there was tenderness, bruises and swelling on both upper limbs. The neck and lower limbs had no injuries. That the approximate age of injury was 12 hours. That the probable weapon was a blunt object. That he was treated with antibiotics and that the degree of injury was classified as harm. That he signed the P3 form on 04/04/2024. That the treatment note dated 14/03/2024 captures the stated injuries. P3 form was produced as exhibit-5 and treatment notes as exhibit-4 and that the patient was still in pain at the time of examination.
On being cross examined, he stated that he filled the P3 form on 04/04/2024. That he examined patient on 14/03/2024. That he does not know why the patient did not bring P3 form at the time of treatment. On 04/04/2024, he used treatment notes. A blunt object cannot cause a cut, just bruises. i.e. cane, log of wood, hand etc. That there are stones that are sharp objects and that it will be difficult to ascertain the exact weapon. That it is possible that it was a stone. Complainant claimed that he was assaulted while in line of duty. Injury sustained probably is not as a result of mob injustice based on the injuries.
On re-examination, he stated that it is possible that it was from a mob injustice.
10. Number 241334 Inspector Joseph Akama (PW5) stated that he is the deputy DCIO Rarieda and investigating officer to this matter before court. Matter is based on incident at Oyude market where two officers went to enforce government directives on crackdown of illicit brews, and the two officers were IP Kariuki and Pc Maina of Ndori police station. When the two officers were enforcing that directive, they were assaulted by a mob where one officer was fatally injured. The injured Pc Maina reported the matter at Ndori police station and investigations were conducted. P3 form was issued to Pc Main. Suspects were arraigned in court and charged accordingly.
That they were able to identify through assistance of a protected witness and intelligence from members of the public. Witness witnessed the assault. Probable tools used were crude weapons. i.e. sticks and stones. Complainant could not point out specific people. Oyude market is served by a flood light that is well lit. Accused persons are from within Oyude market. Complainant was assaulted within the market. Pc Maina and IP Kariuki had gone to arrest the 1st accused who was selling illicit brews. They recovered a bag containing Simba Waragi and 4 packets of super match cigarettes. That they produced the demin bag as Exhibit 1, 4 packets of super match cigarettes as exhibit 2 and 21 sachets of Simba Waragi as Exhibit 3.
On cross examination, he stated that the identification of perpetrators would be possible and that it is important that the accused person is properly identified. Protected witness aided them in identifying accused persons. Complainant does not know who attacked him. That they used protected witness to identify accused persons. Protected witness gave his statement under oath. From information he gave them, led them to the discovery of exhibits. That the victim confirmed that he was well familiar with the market and with the aid of flood light, he was unable to identify a single perpetrator. Apart from protected witness, there is no other eye witness. Protected witness claimed that the 12th accused came after incident had occurred and which is an information he was getting right then. The bag exhibit-1 belonged to the 1s accused. From chain of custody of the bag, it was traced back to 1 st accused.
On cross examination, he stated that they did not conduct an identification parade.
On re-examination, he stated that the 12 th accused was mentioned by a co-accused.
11. That marked the close of the Respondent’s case and that the trial court later ruled that a prima facie case had been established against all the accused persons and who were subsequently placed on their defence. Learned counsel for the defence indicated to the court that he would tender sworn evidence and will call a total of thirty-two witnesses.
12. Caren Atieno Okumu (DW1) testified that she lives in Onjiko village near Oyude market. That she operates an mpesa shop and a shop in Oyude market. That on 13/03/2024, she was at Oyude mpesa shop. At about 8:00pm, two men walked into her shop. That one slapped her, the other held her ‘kikapu’. That she did not know them and that they did not introduce themselves. That they were not dressed in police uniform. That she did not see anyone of them armed. That she did not see anyone with handcuffs. That she did not know who they were. That robberies of mpesa shops was rampant. That one man struggled over her kikapu. That she screamed and that people came to her rescue. That she took her bag and went home. That later that night people knocked on her door and ransacked her house and her store. That they did not find anything. That they took her work phone and personal phone. That at the land cruiser, they asked her to sit on the floor of the land cruiser until they reached the police station. That when they came home, they were looking for alcohol. That she was home with her co-wife. She was in her house. That her co-wife was also ransacked and were both arrested.
On cross examination, she stated that she has a shop at Oyude and that she was present at the shop. That there was light from the sun-king solar lamp and that she could not see them clearly because they got in and slapped her. That she saw them but could not identify them. That there is a flood light in the market. At home, they were looking for alcohol. That she raised an alarm and that they left the kikapu. That they did not take any money. That they got inside the shop. That she knows that they were robbers because they slapped her. That she had money inside the kikapu. That they never left with the kikapu. That she was informed while inside the land cruiser that someone had been killed.
That she raised an alarm because she had been ambushed. That she uttered the words “help me” “help me”. That she was alone in the shop. That she had the shop for five years. That she doesn’t sell alcohol. That she closed her shop and left for home. That there was no one in her shop that is why she closed the door until she left for home. That her home is not far. That she had her kikapu at home. That she could not go and report because it was at night. That she had money in her bag which she uses as float and to trade. That she had never seen officers visit to the market. That she used to close her shop at 8:00pm or 8: 30pm. That they came past 8:00pm. That she knows the accused persons but before that she did not know them. That she only knows one namely the 15 th accused because he resides in the market and stays in a compound across the road. That she got scared of the slap and that they entered inside the shop.
On re-examination, she stated that she raised an alarm and that they left her bag because people came. That she closed her shop and left.
The defence counsel closed the Appellant’s case.
13. The learned trial magistrate convicted the Appellant herein on the fourth count while acquitting the rest of the Appellant’s co-accused in all the four counts. This has precipitated this appeal.
14. The appeal was canvassed by way of written submissions. However it is only the Appellant who complied. The Respondent conceded to the appeal on the grounds that the Section under which the Appellant had been charged had already been declared unconstitutional vide the case of Johnston Muthama & Another Vs. the DPP [2020] eKLR.
15. I have considered the record of appeal and the submissions filed. It is not in dispute that the Appellant herein has been acquitted of all the charges except the 4 th count of incitement to violence contrary to Section 96 of the Penal Code. It is also not in dispute that all the Appellant’s co-accused were acquitted of the first three charges. I find th
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