REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E024 OF 2022
EDWARD KABORO KATHURI…………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. Wanjiru M.N. SRM, in Gichugu Magistrates Court Criminal Case No. 256 of 2020 delivered on 4/11/2022)
J U D G M E N T
1. The appellant herein Edward Kaboro Kathuri was convicted of the offence of assaulting a police officer contrary to section 103(a) of the National Police Service Act (Cap. 84) Laws of Kenya that on 29/6/2020 at Githure police patrol base, Rungeto sub-location, Ngariama location in Kirinyaga East Sub-County within Kirinyaga County, willfully and unlawfully assaulted No. 120072 PC Jackson Kishe, a police officer who at the time of the said assault was acting in due execution of his duty.
2. The prosecution called 4 witnesses to support its case. PW 1, PC Jackson Kishe was the complainant. He testified that the appellant while in police custody at Githure police patrol base, hit him on the cheek and also pushed him against the wall as a result of which he sustained a slight injury on his right arm. PW 2, Cpl Japheth Nyaga testified that he was an eye witness to the incident as he was present. PW 3, James Kariuki Ombachi, a clinician, attended to the complainant at Joshua Mbai dispensary on the same day, examined him and completed his P3 form. PW 4, PC Clement Wachira took over investigations of the matter after the initial investigating officer PC Richard Osoi deserted duty.
3. The appellant DW 1, gave sworn evidence in defence. He said that he had an altercation with the complainant at the police patrol base when the complainant tried to force him to put his fingerprints on a piece of paper. They were only the two of them at the time. They fought and PW 2, who had left the scene shortly before, heard the commotion and went and separated them.
4. At the end of the trial, the appellant was found guilty of the offence and he was convicted and sentenced to pay a fine of KShs 20,000/= in default to serve four months imprisonment.
5. The appellant was aggrieved by the decision of the trial court and has filed the present appeal based on the following grounds dated 17/11/2022 and filed in court on 21/11/2022:
a. That the learned trial magistrate erred in law and in fact in failing to find that the prosecution evidence was insufficient to sustain the conviction and sentence and by convicting the appellant against the weight of the evidence adduced.
b. That the learned trial magistrate erred in law in convicting the appellant on the unreliable evidence of the prosecution witness without evaluating it and making a finding on it.
c. That the learned trial magistrate erred in law in not considering the reasonable doubts available in the case against the appellant and erred in law in not giving the appellant the benefit of doubt.
d. That the learned trial magistrate erred in law in convicting the accused without the prosecution having proved all the ingredients of the offence.
e. That the learned trial magistrate failed to properly consider the appellant’s defence which if she had, would have arrived at an acquittal verdict.
f. That the learned magistrate erred in law by not considering the appellant’s mitigation.
6. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
7. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
8. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
9. I have examined and reviewed the evidence tendered before the trial court and some facts are undisputed. The complainant and the appellant knew each other well. The appellant was summoned to the police patrol base by way of a phone call by PW 2, who was in charge of the police patrol base on a report of assault against the appellant by a complainant, one Marjorie. The appellant headed to the summons and went to the police patrol base.
10. According to PW 1 and PW 2, after the complainant, who was handling that case informed the appellant of the report made against him, he informed him that he was going to take his finger prints to complete the file. However, the appellant turned aggressive and declined to have his fingerprints taken.
11. According to the complainant, PW 1, the appellant told them that they did not know what they were doing and that, that was not a police post and they were not police officers and they will never take his fingerprints. He then started leaving the police post. The complainant held him back to return him to the cells. The appellant swung and hit him on the cheek, he aimed another blow at the complainant, but he dodged it. The appellant then pushed him against the wall and he sustained a slight injury on his right arm. PW 2 then assisted the complainant to restrain the appellant and they put him back in the police cells. The appellant was later picked by officers from Kianyaga police station and subsequently charged with the offence.
12. According to PW 2, the appellant hit the complainant once and the complainant fell down.
13. PW 3 said that when he examined the complainant later the same day of the incident, he had pain on the right hand on palpation and the probable weapon causing the injury was a blunt object.
14. In his defence, the appellant said that when he arrived at the police patrol base, he found the complainant and PW 2 at the office but PW 2 left and he remained with the complainant. He says he did not know anything about the case that had been reported against him. The complainant wrote some things on a piece of paper and then asked the appellant to sign and put his finger prints. The appellant declined. The complainant asked him severally to sign but he maintained that he would not do it. The complainant went to him to force him to put his fingerprints on the paper and the appellant threw him away whereupon he went to the other side of the room and he fell. The complainant then tried to beat him but the appellant resisted. They fought and got out of the police patrol base. PW 2 heard the commotion and came out and separated them and he was put in the cells. This left him, the appellant, with a bleeding left finger.
15. It was the appellant’s contention that the complainant was the one who beat him.
16. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of assaulting a police officer in the execution of his duties against the appellant beyond a reasonable doubt and convicted him accordingly.
17. The appellant submitted on all the grounds of appeal together. He submits that his rights were violated at the police patrol base because he could not understand why he was being required to have his fingerprints taken as he had already presented himself to the police station. He also submits that the complainant used violence to try and coerce him to have his fingerprints taken.
18. He has cited articles 49 and 51 of the constitution respectively on the rights of an arrested person and the rights of a person detained, held in custody or imprisoned. Under article 49 of the constitution, he has cited the right to be informed of the reason for the arrest, the right to remain silent and the consequences of not remaining silent. Under article 51 of the constitution.
19. The submissions however do not seem to be compatible with his grounds of appeal which did not mention anything to do with a breach of his constitutional rights as cited above. His grounds of appeal are generally on the insufficiency of evidence tendered by the prosecution at the trial.
20. Learned counsel for the respondent on his part submits that the appellant did not challenge the prosecution evidence that he assaulted the complainant. He submits that the prosecution proved the elements of the offence beyond a reasonable doubt and the appeal should be dismissed as lacking in merit.
21. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof and the submissions by the respondent. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
22. The submission by the appellant that he was not informed or that he did not understand why he was required to have his fingerprints taken is however contrary to his evidence that he was informed that one Marjorie Njini had made a report of assault against him at the police post. He acknowledged that indeed he was aware that the said Marjorie would have made a report against him because they had some differences with her and she had alleged, earlier and away from the police patrol base, at the chief’s officer, that he had assaulted her.
23. Section 103(a) of the National Police Service Act under which the appellant was charged provides that:
S. 103 Any person who
a) assaults, resists, or willfully obstructs a police officer in the execution of the police officer’s duties,
b) …
commits an offence and shall be liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.
24. From this provision, the ingredients of the offence charged are:
a. assault,
b. a police officer,
c. in the execution of the police officer’s duties.
25. The grounds of appeal can be summarized into one, that in convicting the appellant, the learned trial magistrate relied on insufficient and unreliable evidence that was full of doubts and failed to properly consider the defence by the appellant.
26. The learned trial magistrate considered that the complainant had suffered actual bodily harm. Whereas that would be an aggravating circumstance of the commission of the offence, actual bodily harm upon the police officer is not necessary. What is required is a simple assault whose ingredients are that the assailant caused either physical contact or even mere threats causing the officer to fear that he will face immediate physical harm. In other words, the victim does not have to be injured for it to be a crime, nor is it even necessary for the assailant to make physical contact. The prosecution only needs to prove that the culprit could commit violence or that he attempted to commit violence against the complainant.
27. In this case, there is evidence from the complainant, PW 2 and the appellant himself that in fact there was violent physical contact between the appellant and the complainant, a police officer. The altercation was initiated by the appellant who upon being approached to have his finger prints taken, having declined to voluntarily do the same, violently resisted by hitting the complainant and also pushing him away. There does not seem to be any serious contention that the appellant indeed assaulted the complainant in that respect. I am satisfied and do find that the appellant assaulted the complainant.
28. The appellant submits that he was not aware that he was supposed to give his fingerprints and he later made them available at Kianyaga police station. The court record shows that in fact, he only deed so upon the court’s order when he was produced in court for plea and the learned prosecution counsel informed the court that he had refused to have his fingerprints taken and so they required that he provides the same prior to him being released on bond. He answered that, “it is okay if they must be taken it’s okay.” This means that even at the time that he was produced in court for plea, he had not submitted to his finger prints being taken.
29. In his defence, the appellant said that he told the complainant that he knew nothing to do with the case that had been brought against him. He also said that he was aware that his neighbor Marjorie Wawira had been advised by their chief to report her allegations of assault against the appellant to the police. The appellant said he had earlier that day had an exchange with Marjorie’s son at the chief’s office over Marjorie’s complaint that he had assaulted her. I am therefore satisfied that he was aware, both from his own knowledge from the meeting at the chief’s office and from the complainant and PW 2, upon informing him when he arrived at the police patrol base, that a complaint of assault had been made against him by Marjorie and thus the reason for his being summoned to the police patrol base.
30. I therefore find that he was lawfully in police custody at the time and his allegation that he was not aware and he was not told of the same is not true.
31. Taking of fingerprints for a suspect of an offence who is in police lawful custody is a legal requirement under the NPS Act. Section 55(1) provides inter alia that a police officer may take, or cause to be taken in his presence, for the purposes of record and identification, the finger-prints and other forensic evidence of any person in lawful custody.
32. The section further provides further that:
(1) …
(5) A person who refuses to permit his measurements, photographs, footprints and casts thereof, palm-prints or finger-prints and other forensic evidence to be taken under this section commits an offence.
(6) Upon conviction under subsection (5), reasonable force may be used to facilitate the taking of measurements, photographs, footprints and casts thereof, palm-prints and finger-prints of the person convicted.
33. The appellant was in lawful police custody when he assaulted the complainant. The complainant was at his work station, where he was executing his lawful duty of requiring the appellant to provide his fingerprints to be taken as required under the law.
34. I will now consider the credibility of the evidence tendered to prove the prosecution’s case, seeing that the appellant’s ground of appeal is that the evidence was unreliable.
35. It is apparent from the evidence of the complainant, PW 2 and the appellant that there were the only 3 people at the police patrol base at the time. All of them have said that at the very least, the appellant pushed the complainant. PW 1 and PW 2 both said that the appellant in fact hit the complainant. The appellant’s evidence in defence was as follows:
“Nyaga left. I was left with Kishe. I told him that I knew nothing to do with the case that had been brought. He wrote things on a paper. He then told me to sign and put finger prints. I refused. He told me severally and I told him I would not do it. I folded my fingers. He came to force me to put my prints. I threw him away. He went to the other side of the room and he fell.
He tried to beat me. I resisted. It was just two of us. We fought and got out of the police station. Nyaga heard the commotion and came out. He separated us and I was put in the cell. My left middle finger was bleeding.”
36. In that evidence, I find no indication that the complainant held him and forced him to put his fingerprints with no explanation whatsoever on why the same was being carried out. I have found above that he was aware of why he was summoned to the police patrol base. That he had limited understanding of why he was at the police station is not only not true but was no reason for him to assault the police officer who was simply carrying out his duties as required under the law. There is no evidence that the complainant chose violence to try and coerce the appellant into permitting his fingerprints to be taken as submitted. The appellant was the one who attacked the police officer.
37. The appellant submits that there was gross violation of his fundamental rights without pointing out in which way nor tendering evidence to support the same. I have considered the judgment of the learned trial magistrate and I am satisfied that, contrary to the appellant’s submissions, she fully considered the circumstances surrounding the incident before arriving at her conclusion that the offence had been proved against the appellant.
38. The appellant was clearly not acting in self-defence against some unjustified force applied by the complainant. The police officer only approached him to try and have him submit his fingerprints to be taken. He then folded his fingers in resistance and then pushed or punched the police officer. Whatever action he did in that resistance it was unreasonable and uncalled for and therefore an assault upon the police officer. It is apparent that under the circumstances, having folded his fingers, the complainant was required to expend an additional effort to have the appellant comply which had him move towards the appellant or even touch his hands, if at all that happened.
39. I find that the appellant clearly had the mens rea to assault the complainant because he was determined to resist his fingerprints being taken at all costs, believing that the complaint laid against him by Marjorie was not genuine. There is no indication that the complainant used excessive force in requiring the appellant to have his fingerprints taken or that the appellant reasonably believed that the officer was about to harm him. It is true and PW 2 testified as much that the appellant sustained some injury on his finger. But that clearly came after his actions of hitting and pushing the complainant away. He could have been injured by the door while being returned to the cells as testified by PW 2 or in the cause of his fight with the complainant as he testified himself. In either case, he had already committed the offence of assault against the complainant.
40. The learned trial magistrate considered the evidence by the prosecution and the defence by the appellant. I am satisfied that she was correct in her evaluation of the evidence and her decisions thereon was sound.
41. I am satisfied that the evidence considered as a whole was sufficient and cogent and find that the elements of the offence of assaulting a police officer in due execution of his duty were all proved against the appellant beyond a reasonable doubt and learned trial magistrate was correct in her finding.
42. Consequently, I am satisfied that the appellant was correctly convicted. I affirm the trial court’s conviction on the offence of assaulting a police officer contrary to section 103(a) of the National Police Service Act (Cap. 84) Laws of Kenya. The appeal on conviction is therefore dismissed as lacking in merit.
43. The final ground raised by the appellant was on sentence with the appellant submitting that the learned trial magistrate failed to consider the appellant’s mitigation. That ground of appeal and submission in support thereof is not correct. To the contrary, the learned trial magistrate fully considered the mitigation, if what he said can be considered as such. The appellant said after the judgment was read convicting him that, “I do not agree with you. I too was injured. I do not understand why you are telling me I am the one that injured him.” The learned magistrate then went on to observe that she had considered the mitigation and the appellant did not show any remorse and he did not seem to appreciate that he had committed an offence.
44. The learned trial magistrate was extremely lenient in passing her sentence given the circumstances of the case. The appellant should also be grateful that he was not even charged with the offence of refusing to have his fingerprints taken as provided for under section 55(1) of the NPS Act. The seriousness of this offence of assaulting a police officer in due execution of his duty is underscored by the hefty punishment prescribed which is commensurate to the fact that an assault upon a police officer who is in lawful execution of his duty means he is being obstructed from carrying out his lawful duty and the wider public is put at risk because those services are threatened. It is thus a serious offence which the courts should treat with the requisite seriousness depending on the aggravating circumstances.
45. In the result, I find that the entire appeal is without merit and the same is dismissed.
46. Orders accordingly.
47. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 11th day of April 2025 in the presence of:
The appellant in person in court - he arrived late in the course of delivering the judgment.
Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E024 OF 2022
EDWARD KABORO KATHURI…………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. Wanjiru M.N. SRM, in Gichugu Magistrates Court Criminal Case No. 256 of 2020 delivered on 4/11/2022)
J U D G M E N T
1. The appellant herein Edward Kaboro Kathuri was convicted of the offence of assaulting a police officer contrary to section 103(a) of the National Police Service Act (Cap. 84) Laws of Kenya that on 29/6/2020 at Githure police patrol base, Rungeto sub-location, Ngariama location in Kirinyaga East Sub-County within Kirinyaga County, willfully and unlawfully assaulted No. 120072 PC Jackson Kishe, a police officer who at the time of the said assault was acting in due execution of his duty.
2. The prosecution called 4 witnesses to support its case. PW 1, PC Jackson Kishe was the complainant. He testified that the appellant while in police custody at Githure police patrol base, hit him on the cheek and also pushed him against the wall as a result of which he sustained a slight injury on his right arm. PW 2, Cpl Japheth Nyaga testified that he was an eye witness to the incident as he was present. PW 3, James Kariuki Ombachi, a clinician, attended to the complainant at Joshua Mbai dispensary on the same day, examined him and completed his P3 form. PW 4, PC Clement Wachira took over investigations of the matter after the initial investigating officer PC Richard Osoi deserted duty.
3. The appellant DW 1, gave sworn evidence in defence. He said that he had an altercation with the complainant at the police patrol base when the complainant tried to force him to put his fingerprints on a piece of paper. They were only the two of them at the time. They fought and PW 2, who had left the scene shortly before, heard the commotion and went and separated them.
4. At the end of the trial, the appellant was found guilty of the offence and he was convicted and sentenced to pay a fine of KShs 20,000/= in default to serve four months imprisonment.
5. The appellant was aggrieved by the decision of the trial court and has filed the present appeal based on the following grounds dated 17/11/2022 and filed in court on 21/11/2022:
a. That the learned trial magistrate erred in law and in fact in failing to find that the prosecution evidence was insufficient to sustain the conviction and sentence and by convicting the appellant against the weight of the evidence adduced.
b. That the learned trial magistrate erred in law in convicting the appellant on the unreliable evidence of the prosecution witness without evaluating it and making a finding on it.
c. That the learned trial magistrate erred in law in not considering the reasonable doubts available in the case against the appellant and erred in law in not giving the appellant the benefit of doubt.
d. That the learned trial magistrate erred in law in convicting the accused without the prosecution having proved all the ingredients of the offence.
e. That the learned trial magistrate failed to properly consider the appellant’s defence which if she had, would have arrived at an acquittal verdict.
f. That the learned magistrate erred in law by not considering the appellant’s mitigation.
6. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
7. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
8. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
9. I have examined and reviewed the evidence tendered before the trial court and some facts are undisputed. The complainant and the appellant knew each other well. The appellant was summoned to the police patrol base by way of a phone call by PW 2, who was in charge of the police patrol base on a report of assault against the appellant by a complainant, one Marjorie. The appellant headed to the summons and went to the police patrol base.
10. According to PW 1 and PW 2, after the complainant, who was handling that case informed the appellant of the report made against him, he informed him that he was going to take his finger prints to complete the file. However, the appellant turned aggressive and declined to have his fingerprints taken.
11. According to the complainant, PW 1, the appellant told them that they did not know what they were doing and that, that was not a police post and they were not police officers and they will never take his fingerprints. He then started leaving the police post. The complainant held him back to return him to the cells. The appellant swung and hit him on the cheek, he aimed another blow at the complainant, but he dodged it. The appellant then pushed him against the wall and he sustained a slight injury on his right arm. PW 2 then assisted the complainant to restrain the appellant and they put him back in the police cells. The appellant was later picked by officers from Kianyaga police station and subsequently charged with the offence.
12. According to PW 2, the appellant hit the complainant once and the complainant fell down.
13. PW 3 said that when he examined the complainant later the same day of the incident, he had pain on the right hand on palpation and the probable weapon causing the injury was a blunt object.
14. In his defence, the appellant said that when he arrived at the police patrol base, he found the complainant and PW 2 at the office but PW 2 left and he remained with the complainant. He says he did not know anything about the case that had been reported against him. The complainant wrote some things on a piece of paper and then asked the appellant to sign and put his finger prints. The appellant declined. The complainant asked him severally to sign but he maintained that he would not do it. The complainant went to him to force him to put his fingerprints on the paper and the appellant threw him away whereupon he went to the other side of the room and he fell. The complainant then tried to beat him but the appellant resisted. They fought and got out of the police patrol base. PW 2 heard the commotion and came out and separated them and he was put in the cells. This left him, the appellant, with a bleeding left finger.
15. It was the appellant’s contention that the complainant was the one who beat him.
16. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of assaulting a police officer in the execution of his duties against the appellant beyond a reasonable doubt and convicted him accordingly.
17. The appellant submitted on all the grounds of appeal together. He submits that his rights were violated at the police patrol base because he could not understand why he was being required to have his fingerprints taken as he had already presented himself to the police station. He also submits that the complainant used violence to try and coerce him to have his fingerprints taken.
18. He has cited articles 49 and 51 of the constitution respectively on the rights of an arrested person and the rights of a person detained, held in custody or imprisoned. Under article 49 of the constitution, he has cited the right to be informed of the reason for the arrest, the right to remain silent and the consequences of not remaining silent. Under article 51 of the constitution.
19. The submissions however do not seem to be compatible with his grounds of appeal which did not mention anything to do with a breach of his constitutional rights as cited above. His grounds of appeal are generally on the insufficiency of evidence tendered by the prosecution at the trial.
20. Learned counsel for the respondent on his part submits that the appellant did not challenge the prosecution evidence that he assaulted the complainant. He submits that the prosecution proved the elements of the offence beyond a reasonable doubt and the appeal should be dismissed as lacking in merit.
21. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof and the submissions by the respondent. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
22. The submission by the appellant that he was not informed or that he did not understand why he was required to have his fingerprints taken is however contrary to his evidence that he was informed that one Marjorie Njini had made a report of assault against him at the police post. He acknowledged that indeed he was aware that the said Marjorie would have made a report against him because they had some differences with her and she had alleged, earlier and away from the police patrol base, at the chief’s officer, that he had assaulted her.
23. Section 103(a) of the National Police Service Act under which the appellant was charged provides that:
S. 103 Any person who
a) assaults, resists, or willfully obstructs a police officer in the execution of the police officer’s duties,
b) …
commits an offence and shall be liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.
24. From this provision, the ingredients of the offence charged are:
a. assault,
b. a police officer,
c. in the execution of the police officer’s duties.
25. The grounds of appeal can be summarized into one, that in convicting the appellant, the learned trial magistrate relied on insufficient and unreliable evidence that was full of doubts and failed to properly consider the defence by the appellant.
26. The learned trial magistrate considered that the complainant had suffered actual bodily harm. Whereas that would be an aggravating circumstance of the commission of the offence, actual bodily harm upon the police officer is not necessary. What is required is a simple assault whose ingredients are that the assailant caused either physical contact or even mere threats causing the officer to fear that he will face immediate physical harm. In other words, the victim does not have to be injured for it to be a crime, nor is it even necessary for the assailant to make physical contact. The prosecution only needs to prove that the culprit could commit violence or that he attempted to commit violence against the complainant.
27. In this case, there is evidence from the complainant, PW 2 and the appellant himself that in fact there was violent physical contact between the appellant and the complainant, a police officer. The altercation was initiated by the appellant who upon being approached to have his finger prints taken, having declined to voluntarily do the same, violently resisted by hitting the complainant and also pushing him away. There does not seem to be any serious contention that the appellant indeed assaulted the complainant in that respect. I am satisfied and do find that the appellant assaulted the complainant.
28. The appellant submits that he was not aware that he was supposed to give his fingerprints and he later made them available at Kianyaga police station. The court record shows that in fact, he only deed so upon the court’s order when he was produced in court for plea and the learned prosecution counsel informed the court that he had refused to have his fingerprints taken and so they required that he provides the same prior to him being released on bond. He answered that, “it is okay if they must be taken it’s okay.” This means that even at the time that he was produced in court for plea, he had not submitted to his finger prints being taken.
29. In his defence, the appellant said that he told the complainant that he knew nothing to do with the case that had been brought against him. He also said that he was aware that his neighbor Marjorie Wawira had been advised by their chief to report her allegations of assault against the appellant to the police. The appellant said he had earlier that day had an exchange with Marjorie’s son at the chief’s office over Marjorie’s complaint that he had assaulted her. I am therefore satisfied that he was aware, both from his own knowledge from the meeting at the chief’s office and from the complainant and PW 2, upon informing him when he arrived at the police patrol base, that a complaint of assault had been made against him by Marjorie and thus the reason for his being summoned to the police patrol base.
30. I therefore find that he was lawfully in police custody at the time and his allegation that he was not aware and he was not told of the same is not true.
31. Taking of fingerprints for a suspect of an offence who is in police lawful custody is a legal requirement under the NPS Act. Section 55(1) provides inter alia that a police officer may take, or cause to be taken in his presence, for the purposes of record and identification, the finger-prints and other forensic evidence of any person in lawful custody.
32. The section further provides further that:
(1) …
(5) A person who refuses to permit his measurements, photographs, footprints and casts thereof, palm-prints or finger-prints and other forensic evidence to be taken under this section commits an offence.
(6) Upon conviction under subsection (5), reasonable force may be used to facilitate the taking of measurements, photographs, footprints and casts thereof, palm-prints and finger-prints of the person convicted.
33. The appellant was in lawful police custody when he assaulted the complainant. The complainant was at his work station, where he was executing his lawful duty of requiring the appellant to provide his fingerprints to be taken as required under the law.
34. I will now consider the credibility of the evidence tendered to prove the prosecution’s case, seeing that the appellant’s ground of appeal is that the evidence was unreliable.
35. It is apparent from the evidence of the complainant, PW 2 and the appellant that there were the only 3 people at the police patrol base at the time. All of them have said that at the very least, the appellant pushed the complainant. PW 1 and PW 2 both said that the appellant in fact hit the complainant. The appellant’s evidence in defence was as follows:
“Nyaga left. I was left with Kishe. I told him that I knew nothing to do with the case that had been brought. He wrote things on a paper. He then told me to sign and put finger prints. I refused. He told me severally and I told him I would not do it. I folded my fingers. He came to force me to put my prints. I threw him away. He went to the other side of the room and he fell.
He tried to beat me. I resisted. It was just two of us. We fought and got out of the police station. Nyaga heard the commotion and came out. He separated us and I was put in the cell. My left middle finger was bleeding.”
36. In that evidence, I find no indication that the complainant held him and forced him to put his fingerprints with no explanation whatsoever on why the same was being carried out. I have found above that he was aware of why he was summoned to the police patrol base. That he had limited understanding of why he was at the police station is not only not true but was no reason for him to assault the police officer who was simply carrying out his duties as required under the law. There is no evidence that the complainant chose violence to try and coerce the appellant into permitting his fingerprints to be taken as submitted. The appellant was the one who attacked the police officer.
37. The appellant submits that there was gross violation of his fundamental rights without pointing out in which way nor tendering evidence to support the same. I have considered the judgment of the learned trial magistrate and I am satisfied that, contrary to the appellant’s submissions, she fully considered the circumstances surrounding the incident before arriving at her conclusion that the offence had been proved against the appellant.
38. The appellant was clearly not acting in self-defence against some unjustified force applied by the complainant. The police officer only approached him to try and have him submit his fingerprints to be taken. He then folded his fingers in resistance and then pushed or punched the police officer. Whatever action he did in that resistance it was unreasonable and uncalled for and therefore an assault upon the police officer. It is apparent that under the circumstances, having folded his fingers, the complainant was required to expend an additional effort to have the appellant comply which had him move towards the appellant or even touch his hands, if at all that happened.
39. I find that the appellant clearly had the mens rea to assault the complainant because he was determined to resist his fingerprints being taken at all costs, believing that the complaint laid against him by Marjorie was not genuine. There is no indication that the complainant used excessive force in requiring the appellant to have his fingerprints taken or that the appellant reasonably believed that the officer was about to harm him. It is true and PW 2 testified as much that the appellant sustained some injury on his finger. But that clearly came after his actions of hitting and pushing the complainant away. He could have been injured by the door while being returned to the cells as testified by PW 2 or in the cause of his fight with the complainant as he testified himself. In either case, he had already committed the offence of assault against the complainant.
40. The learned trial magistrate considered the evidence by the prosecution and the defence by the appellant. I am satisfied that she was correct in her evaluation of the evidence and her decisions thereon was sound.
41. I am satisfied that the evidence considered as a whole was sufficient and cogent and find that the elements of the offence of assaulting a police officer in due execution of his duty were all proved against the appellant beyond a reasonable doubt and learned trial magistrate was correct in her finding.
42. Consequently, I am satisfied that the appellant was correctly convicted. I affirm the trial court’s conviction on the offence of assaulting a police officer contrary to section 103(a) of the National Police Service Act (Cap. 84) Laws of Kenya. The appeal on conviction is therefore dismissed as lacking in merit.
43. The final ground raised by the appellant was on sentence with the appellant submitting that the learned trial magistrate failed to consider the appellant’s mitigation. That ground of appeal and submission in support thereof is not correct. To the contrary, the learned trial magistrate fully considered the mitigation, if what he said can be considered as such. The appellant said after the judgment was read convicting him that, “I do not agree with you. I too was injured. I do not understand why you are telling me I am the one that injured him.” The learned magistrate then went on to observe that she had considered the mitigation and the appellant did not show any remorse and he did not seem to appreciate that he had committed an offence.
44. The learned trial magistrate was extremely lenient in passing her sentence given the circumstances of the case. The appellant should also be grateful that he was not even charged with the offence of refusing to have his fingerprints taken as provided for under section 55(1) of the NPS Act. The seriousness of this offence of assaulting a police officer in due execution of his duty is underscored by the hefty punishment prescribed which is commensurate to the fact that an assault upon a police officer who is in lawful execution of his duty means he is being obstructed from carrying out his lawful duty and the wider public is put at risk because those services are threatened. It is thus a serious offence which the courts should treat with the requisite seriousness depending on the aggravating circumstances.
45. In the result, I find that the entire appeal is without merit and the same is dismissed.
46. Orders accordingly.
47. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 11th day of April 2025 in the presence of:
The appellant in person in court - he arrived late in the course of delivering the judgment.
Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE