Skip to content
JudgmentDAVID NJERU NYAGA VS The Republic10 min read

DAVID NJERU NYAGA VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. J.W Gichimu (S.P.M) in the Magistrate’s Court at Runyenjes Criminal Case No. E119 of 2023 delivered on 13th March, 2024)

  1. The appellant 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 the 12th day of April, 2023 at about 1730 hours at Runyenjes town within Embu East Sub County, in Embu County, willfully and unlawfully assaulted one Perminus Njiru Mika thereby occasioning him actual bodily harm.

At the trial, he pleaded “not guilty” to the charge. The case proceeded to full trial and subsequently, he was convicted and sentenced to serve 3 months in prison or pay a fine of Kshs. 30,000/=

Being dissatisfied with the conviction and the sentence, he filed the petition of appeal dated the 9th day of January, 2024, seeking that the appeal be allowed, the conviction and the sentence be set aside.

  1. The appeal is premised on the following grounds;
  2. The learned Magistrate erred in Law and fact in convicting the appellant despite the prosecution’s evidence being weak and incapable of sustaining a conviction.
  3. The learned Magistrate erred in Law and fact by failing to give the appellant the benefit of doubt, considering the flaws in the investigations and the generality of the circumstances of the case.
  4. That the Learned Magistrate was biased against the appellant as a result, the appellant was not accorded a fair trial.
  5. The Learned Magistrate erred in Law and fact in considering the medical evidence as the P3 form was not produced by the maker.
  6. A summary of the evidence at the trial is as follows; Pw1, the complainant stated that, on the 12/4/2023 he took his token machine to the appellant so that he could fix it for him as it was faulty. That the appellant took the machine but he switched his phone off. Thereafter he saw him two months later and when they went to the appellant’s house he opened the house, took out a slasher and hit him on the right shoulder and on the chest, as he was defending himself. He also kicked his knees. There were people at the stage and one Muchiri went to his rescue and when he went home, he got worse and went to hospital where he was treated. On cross examination, he stated that he met the appellant at the stage and they went together to the appellant’s house and that Muchiri witnessed the incident. That he reported the incident on the 16th as he was feeling unwell.
  7. Pw-3, Moses Muchiri stated that on the 12/4/2023, he was at his place of work in the evening when he saw people looking at the appellant’s place of work which caught his attention and on looking he saw the appellant and the complainant fighting over a slasher. He went to separate them but Njeru had hit Njiru who was shielding himself by holding the slasher. On enquiring what was happening, he was told that Njeru had taken Njiru’s token machine to repair but it was not working. On cross examination he stated that he is the one who took the slasher from the appellant and put it down.
  8. Pw-4, Ann Githinji, a clinical officer produced a P3 form for the complainant which was filled by Bridgit Kimathi whom she said she had worked with for one year and that she knew her writing and her signature. That the said Bridgit was unavailable to attend court and testify. She stated that the complainant presented with a tender shoulder and chest and an x- ray was ordered which showed no fracture. The injuries were 5 days old and the type of weapon was blunt. The injuries were assessed as harm. On cross examination, she stated that though she is not a doctor, she can assess the injuries and tell the age of the injuries.
  9. CPL Edimon Shamallah was the Investigating Officer. He stated that on the 17/4/2023, while at Runyenjes Police Station, he was minuted this case which was reported by the complainant. He recorded the complainant’s statement and issued him with a P3 form and recorded the statements of all the other witnesses. He later arrested the appellant and charged him with the offence of assault. On cross examination, he stated that he did not know why the appellant went to the station but he said that he had gone to check on the status of the case.
  10. At the close of the prosecution’s case, the appellant was placed on his defence. He gave unsworn evidence and called one witness.

He denied the charges and stated that to the contrary, it was the appellant who assaulted him after he had insulted him over an electricity token that the complainant had taken to him to have it repaired. That the complainant attacked him using a panga and stabbed him with a screw driver which were in his (appellant’s house). That people witnessed the incident and restrained the complainant.

That on the 14th, he found the complainant in his home at the door and he threatened him, an incident which he reported at the Police Station. It was his evidence that the complainant lied to court and that he told the Investigating Officer that he was beaten but, he failed to book his report. That the incident revolved around a land dispute involving the appellant and the appellant’s father in which, the complainant had his father’s title deed but he redeemed it by taking a loan and paying the money back to the complainant and for that reason, the complainant was not happy with the turn of events.

  1. Dw-2, in his evidence stated that on the material day she was near a stage at Bob Electronic when she saw the accused walking ahead and the complainant behind him.

The complainant pushed the appellant inside his store and the complainant shut the door thus pressing the appellant with it. A crowd came and she left to go and see what was happening.

On cross examination, she stated that she did not see what happened from there.

  1. The trial court analyzed the evidence adduced and found that the prosecution had proved its case beyond reasonable doubt.
  2. In this appeal, the court directed the parties to file submissions and both parties complied with the said directions.

In his submissions, the appellant submitted that the offence of assault did not happen on the 12th April, 2023, as alleged by the prosecution witnesses. That there was no eye witness as the incident is said to have happened inside the appellant’s house. That the slasher that was allegedly used to assault the complainant was not produced in evidence. Further that Pw-4 did not examine the complainant and was not the one who filled the P3 form for him and there was no explanation why the maker could not be availed to testify. He urged the court to find that the threshold required to sustain a conviction was not attained and allow his appeal.

  1. On the part of the respondent, it was submitted that the prosecution had proved its case beyond reasonable doubt.

The prosecution referred to the case of Johnson Silvano Mkirani Vs. Republic (2021) eKLR on the definition of assault and section 251 of the Penal Code on the elements of the offence of assault causing actual bodily harm. On the production of P3 by a different person rather than the maker, the prosecution cited section 77 of the Evidence Act and the case of Gerald Wathiu Kiragu Vs. Republic (2011) eKLR and argued that the same did not prejudice the appellant in any way. On the issue of delivery of the judgment by a different Magistrate, the prosecution relied on section 200 of the Criminal Procedure Code which gives another Magistrate the mandate to do so:

  1. The issues for determination in this appeal are as follows:
  2. Whether the offence was proven beyond reasonable doubt
  3. Whether the learned Magistrate erred in considering the medical evidence as the P3 form was not produced by the maker.
  4. Whether it was erroneous for judgment to be delivered by a different Magistrate
  5. On the first issue, it was Pw-1’s evidence that on the 12/4/2023 he took his token machine to the appellant to fix it for him as it was faulty. That the appellant switched off his phone and when the complainant saw him after two (2) months, the appellant told him to follow him to his house and on opening the door, the appellant took out a slasher and hit the complainant on the right shoulder and as he was defending himself, the appellant hit him on the chest and kicked his knees. The complainant went to hospital where he was treated and was issued with a P3 form which was produced in evidence as an exhibit by Pw-4. The P3 form was filled by Bridgit Kimathi and it confirmed that the complainant had injuries which were five (5) days old and the type of weapon used was a blunt object. The injuries were assessed as harm.
  6. This incident was witnessed by Moses Muchiri who testified as Pw-3. He stated that he saw the appellant and the complainant fighting over a slasher and he went to separate them and that the complainant was shielding himself by holding the slasher. When he enquired, he was told that they were fighting over a token machine which the complainant had given the appellant to repair for him.

That the appellant and the complainant spoke and the fight ended. He however, stated that it was the appellant who hit the complainant and the complainant was shielding himself by holding a slasher.

  1. In his defence, the appellant denied the charges and stated that it was the complainant who assaulted him instead, and that people went to separate them. It was his evidence that he told the investigating officer as much but he did not book his report.
  2. From his evidence the court notes that the occurrence book that he referred to, when cross-examining the investigating officer was not produced in evidence and the court is unable to tell what it was all about. Further, the appellant, though he stated that he was stabbed with a screw driver by the complainant, he did not produce any treatment card or a P3 form as evidence that he was assaulted by the complainant. As rightly observed by the Learned Magistrate, the appellant had no obligation to prove his innocence by way of defence, but having been placed on his defence it would have helped his defence case if he had produced the P3 or the treatment card to show that he was indeed assaulted by the complainant and that he sustained injuries. The issue of him having been assaulted by the complainant was only raised at the defence stage and he did not cross-examine the prosecution witnesses on it. His defence was, therefore, an afterthought and did not hold any water.
  3. On the 2nd issue, Section 77 of the Evidence Act sheds some light. It provides;
  4. In criminal proceedings, any document purporting to be a report under the hand of a Government Analyst, Medical Practitioner or of any Ballistics Expert, Document Examiner or Geologist upon any person, matter or thing submitted to him for examination or analysis, may be used in evidence.
  5. The court may presume that the signature to such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.
  6. Further in the case of Gerald Wathiu Kiragu Vs. Republic (2011) eKLR, the court held;

“in my view, the maker of the document who for all intents and purposes is a medical practitioner as understood under section 77 of the Evidence Act need not have produced the document himself if, circumstances were such that, he could not produce it. In any event it was not argued that the appellant suffered any prejudice because the P3 form was produced by someone other than the maker….”

  1. On the last issue, the court has perused the record and I note that the judgment was delivered by Hon. Gichimu though the matter was heard by Hon. S. Ouko. The record shows that the original judgement is dated and signed on the 6th December, 2023 by Hon. Ouko only that it was delivered by Hon. Gichimu.
  2. The prosecution has relied on section 200 of the Criminal Procedure Code in support of this ground. The said section would apply in cases where a Magistrate ceases to exercise jurisdiction and is succeeded by another Magistrate who has, and exercises that Jurisdiction. However, in my considered view, there is nothing illegal or un procedural for a Magistrate or even a Judge to deliver a ruling / judgement that has been duly signed and dated by his / her colleague. The Judge/Magistrate would merely be reading but not writing the judgment and, therefore, I dismiss this ground of appeal.
  3. Having considered all the issues raised in this appeal, I find that the same has no merit and it is hereby dismissed.
  4. It is so ordered.

Delivered, dated and signed at Embu this 28th day of August, 2024.


    DAVID NJERU NYAGA VS The Republic DAVID NJERU NYAGA VS The Republic