(Being an appeal from the conviction and sentence in the Ogembo Chief Magistrate’s Criminal Case No. E439 of 2024 delivered by Hon. P.C. Biwott, C.M., on 25th February 2025)
JUDGMENT
Introduction
1. The Appellant, Emmanuel Ogega Omare, was charged before the Chief Magistrate’s Court at Ogembo with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars were that on 25th March 2024 at about 2000 hours at Itumbe Location, Sameta Sub-County within Kisii County, he assaulted Jane Moraa Angwenyi, thereby occasioning her actual bodily harm.
2. The Appellant pleaded not guilty. After the trial, the learned trial magistrate found him guilty as charged and convicted him under section 215 of the Criminal Procedure Code. The record shows that, after conviction, the prosecution indicated that the Appellant had no prior record and offered no mitigation. The court sentenced him to serve three years’ imprisonment.
3. The Appellant, being dissatisfied with both conviction and sentence, preferred the present appeal. In his memorandum of appeal dated 10th March 2025, he raises six principal grounds: first, that the trial court failed to properly evaluate the prosecution evidence, which he contends was concocted and fraught with falsehoods, misrepresentations and distortions; secondly, that the trial court failed to evaluate the circumstances, conditions, situation, time and atmosphere surrounding the alleged assault; thirdly, that the court failed to find that no worthwhile investigations were carried out; fourthly, that the prosecution did not prove its case beyond reasonable doubt; fifthly, that the trial court failed to consider the negative impact of the sentence upon him as a Form 3 student; and sixthly, that the sentence was harsh and cruel and that the court failed to consider a non-custodial sentence.
4. In his written submissions, the Appellant further raised the issue that he was a minor at the time of plea, trial, conviction and sentence; that he was treated as an adult throughout the proceedings; that he was unrepresented; that he was allegedly held in adult custody; and that the trial court failed to apply Article 53 of the Constitution and the Children Act.
5. The prosecution conceded to the appeal
6. The appeal, therefore, calls for this Court to consider not only the evidentiary grounds in the memorandum of appeal, but also the broader question of whether the proceedings complied with the constitutional and statutory safeguards applicable to a child in conflict with the law.
Duty of the First Appellate Court
6. This is a first appeal. The duty of a first appellate court is settled. In Okeno v Republic [1972] EA 32, the Court of Appeal held that a first appellate court is required to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
7. The Court must therefore re-evaluate the entire record and determine whether the conviction was supported by evidence beyond a reasonable doubt and whether the sentence was lawful, proper and proportionate.
Evidence before the Trial Court
8. The prosecution called three witnesses. PW1, Jane Moraa Angwenyi, testified that on 25th March 2024 at about 8.00 p.m., she was in her kitchen preparing supper. She entered her room and found someone inside. According to her, the person attacked her, boxed her down and kicked her. She identified the assailant as the Appellant, whom she knew as the son of her step-cousin. She stated that the house had lights and that she saw him well. She later went to the police to report and was treated. On cross-examination, she maintained that the lights were on and that she saw the Appellant coming towards her before the attack.
9. PW2, Nancy Martins, a clinical officer at Gucha Sub-County Hospital, testified on behalf of Agnes Oirere, who had filled the P3 form. She stated that the complainant was seen on 26th March 2024 on allegations of assault and that she had injuries on the neck, teeth, chest and knees. The P3 form and treatment notes were produced. The degree of injury was assessed as “harm.”
10. PW3, CPL Julius Ngeno, stated that he had taken over the matter from PC Chepkwony, who had been transferred. He testified that, from the records, the complainant reported that the Appellant attacked her at her home on 25th March 2024 at about 8.00 p.m.; that the Appellant was arrested the same night; and that the complainant was treated and issued with a P3 form. In cross-examination, he confirmed that the complainant knew the Appellant and that they were related.
11. When placed on his defence, the Appellant gave sworn evidence. He denied the charge. He stated that on the material date at about 8.00 pm, he was at his grandmother’s place and at the tea-buying centre where they were weighing tea. He stated that his mother called his grandmother concerning alleged invaders, and that they went to report to the police, only for him to be arrested and charged.
12. DW2, Mary Teresa Moraa, testified that the Appellant was her grandson. She stated that on the material day, she asked the Appellant’s mother to release the Appellant so that he could take her tea to the buying centre. She stated that she later received information that the Appellant had been accused of assaulting someone, went to the buying centre, found him weighing tea, and later escorted him to the police station. In cross-examination, however, she stated that she was not at the tea-buying centre at 8.00 p.m. and that she arrived there at about 8.30 p.m.
Issues for Determination
13. Having considered the memorandum of appeal, the record and the submissions, the issues for determination are:
a. Whether the trial court properly evaluated the prosecution and defence evidence;
b. Whether the prosecution proved the offence beyond a reasonable doubt;
c. Whether the investigations were so defective as to render the conviction unsafe;
d. Whether the Appellant was a child and, if so, whether the trial complied with the law governing children in conflict with the law;
e. Whether the sentence was lawful and appropriate; and
f. What orders should be issued?
Whether the Trial Court Properly Evaluated the Evidence
14. The first, second and fourth grounds of appeal substantially attack the learned trial magistrate’s evaluation of the evidence. The Appellant contends that the evidence was not properly analysed; that the circumstances of the alleged assault were not sufficiently considered; and that the prosecution's case contained inconsistencies, contradictions and misrepresentations.
15. The judgment of the trial court correctly identified that the complainant’s evidence was central. The complainant stated that she saw the Appellant because the house had lights. The incident was said to have occurred at about 8.00 p.m. inside or around the complainant’s house. The complainant also knew the Appellant. That evidence, if properly tested and accepted, would amount to recognition rather than identification of a stranger.
16. However, even recognition evidence must be approached with caution. In Wamunga v Republic [1989] KLR 424, the Court of Appeal warned that evidence of visual identification in criminal cases can lead to a miscarriage of justice unless it is carefully tested. In R v Turnbull [1977] QB 224, the court set out relevant considerations, including the lighting, distance, period of observation, the complaintns prior knowledge prior knowledge, and the circumstances under which the witness made the identification. It is a trite law that in cases of recognition at night, the possibility of mistake cannot be ruled out, and the courts must be careful before admitting such evidence.
17. Pw1 said that the incident occurred at about 8.00 pm in her room, which was lit by light. The trial court accepted the complainant’s evidence on recognition but did not sufficiently analyse the surrounding circumstances. The court did not fully consider the time of the incident, the nature and source of the light, its intensity, the duration of the encounter, the suddenness of the alleged attack, or the possibility of error notwithstanding prior knowledge. It also did not carefully weigh the Appellant’s defence that he was at a tea-buying centre against the complainant’s evidence placing him at the scene.
18. The Appellant gave a sworn denial and placed himself at the tea-buying centre. DW2 supported him to the extent that she said he had been involved in weighing tea and that she found him at the buying centre. Once an accused raises an alibi, the burden does not shift to him. The prosecution remains under a duty to disprove the defence and prove the charge beyond a reasonable doubt. In Kiarie v Republic [1984] KLR 739, the Court of Appeal held that an accused who raises an alibi does not assume the burden of proving it; the burden remains on the prosecution.
19. In the present case, the learned trial magistrate dismissed the defence as dishonest but did not evaluate the defence case with the prosecution’s case. The court did not expressly analyse whether the prosecution had displaced the Appellant’s version. That omission is material.
Whether the Prosecution Proved the Case Beyond a Reasonable Doubt
21. The offence of assault causing actual bodily harm under section 251 of the Penal Code requires proof that the accused unlawfully assaulted the complainant and occasioned actual bodily harm.
22. The medical evidence showed that the complainant suffered injuries assessed as harm. PW2 produced the P3 form and treatment notes. The Appellant did not contest that the complainant had injuries. The main question was whether the Appellant inflicted them.
23. The burden of proof in criminal cases rests throughout on the prosecution. In Woolmington v Director of Public Prosecutions [1935] AC 462, the House of Lords stated the “golden thread” of criminal law: that it is the duty of the prosecution to prove the prisoner’s guilt. The same principle has been repeatedly applied in Kenya, including in Pius Arap Maina v Republic [2013] eKLR, where the Court of Appeal reiterated that the prosecution must prove its case beyond a reasonable doubt.
24. The alleged assault took place at night. The identification evidence was brief. The prosecution did not call the original investigating officer. PW3 took over the file and testified largely from records. The court did not sufficiently analyse whether the defence evidence raised a reasonable doubt.
25. The Appellant’s complaint that the prosecution failed to prove its case beyond a reasonable doubt, therefore, has force. The issue is not that every minor inconsistency must result in an acquittal. It is that, in this case, the trial court’s evaluation did not adequately address the central evidentiary question: whether the recognition evidence, in the circumstances of a night attack and against the Appellant’s defence, eliminated reasonable doubt.
Whether the Investigations were shoddy
26. The third ground of appeal is that no worthwhile investigations were carried out and that the investigations were shoddy, incomplete and unreliable.
27. The record shows that the officer who investigated the matter originally, PC Chepkwony, did not testify. PW3 stated that he took over the file after PC Chepkwony was transferred. His evidence was substantially based on what was recorded in the file. He did not personally visit the scene, interview the witnesses at the initial stage, or explain why certain lines of inquiry were not pursued.
28. The failure to call the original investigating officer is not invariably fatal. However, where the prosecution's case turns on contested circumstances, including the time of the assault, the scene, the existence of lights, the Appellant’s alleged arrest the same night, and his defence that he was at a tea-buying centre, the investigating officer’s evidence would have been important. He could have clarified whether the alibi was investigated, whether the tea-buying centre records were checked, whether the alleged family dispute was considered, and whether the conditions at the scene supported the complainant’s account.
29. The omission did not merely leave a formal gap; it weakened the evidentiary chain on identity and surrounding circumstances. The Appellant’s complaint regarding the investigations is therefore well-founded as the investigations were not satisfactory .
Whether the Prosecution Proved the Case Beyond a Reasonable Doubt
30. The offence of assault causing actual bodily harm under section 251 of the Penal Code requires proof that the accused unlawfully assaulted the complainant and occasioned actual bodily harm.
31. The medical evidence showed that the complainant suffered injuries assessed as harm. PW2 produced the P3 form and treatment notes. The Appellant did not contest that the complainant had injuries. The main question was whether the Appellant inflicted them.
32. The burden of proof in criminal cases rests throughout on the prosecution. In Woolmington v Director of Public Prosecutions [1935] AC 462, the House of Lords stated the “golden thread” of criminal law: that it is the duty of the prosecution to prove the prisoner’s guilt. The same principle has been repeatedly applied in Kenya, including in Pius Arap Maina v Republic [2013] eKLR, where the Court of Appeal reiterated that the prosecution must prove its case beyond a reasonable doubt.
33. The alleged assault took place at night. The identification evidence was brief. The prosecution did not call the original investigating officer. PW3 took over the file and testified largely from records. The court did not sufficiently analyse whether the defence evidence raised a reasonable doubt.
34. The Appellant’s complaint that the prosecution failed to prove its case beyond a reasonable doubt is therefore plausible. The issue goes to the root of the prosecution’s case. It is that, in this case, the trial court’s evaluation did not adequately address the central evidentiary question: whether the recognition evidence, in the circumstances of a night attack and against the Appellant’s defence, eliminated reasonable doubt.
Whether the Appellant Was a Child and Whether Child Safeguards Were Observed
30. Although the memorandum of appeal focused on the evaluation of evidence and sentence, the written submissions raised a further and fundamental question: that the Appellant was a minor at the time of plea, trial, conviction and sentence. The submissions state that the Appellant was born on 17th March 2007, and was therefore 17 years old when he was first presented to court and when the offence was allegedly committed.
31. The proceedings show that when the Appellant gave his defence on 21st January 2025, he stated that he was then 18 years old. That statement itself ought to have alerted the trial court to the probability that he had been below 18 years at the time of the plea and at the time of the alleged offence. The court was then required to inquire into his age.
32. Section 143 of the Children Act, 2022 requires a court to make a due inquiry as to age where a person brought before it appears to be under eighteen years. The court may take such evidence as may be necessary, including medical evidence. The importance of age inquiry is that it determines the procedure, safeguards, detention conditions and sentencing options applicable to the child.
33. Article 53(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Article 53(1)(f) further provides that every child has the right not to be detained except as a measure of last resort and, when detained, to be held for the shortest appropriate period and to be kept separate from adults.
34. The Children Act also contains safeguards for children in conflict with the law. These include the child’s right to privacy, appropriate assistance, protective procedure, and age-appropriate sentencing. The child justice system is not merely punitive; it is rehabilitative and protective.
35. The authorities placed before the Court by the Appellant are instructive. In NKR v Republic [2021] eKLR, the High Court held that where a minor is processed, tried and sentenced as an adult, the resulting proceedings are fundamentally flawed because the court, prosecution and investigating agencies have failed to apply the constitutional and statutory protections due to children. The conviction and sentence were thus quashed
36. In the present appeal, the trial court did not inquire into the Appellant’s age. The Appellant was not represented. There is no indication that a parent, guardian, children officer or probation officer participated in the proceedings. There is no indication that the proceedings were conducted with the privacy protections required in respect of a child. There is no indication that the trial court considered child-specific safeguards at plea, during trial, or at sentence.
37. I therefore find that the Appellant was dealt with as an adult when the record and the material placed before this Court show that he was, at the very least, a person whose age required formal inquiry. That failure went to the root of the trial. It affected the fairness of the proceedings and the legality of the sentence. In any event, in this appeal, the appellant produced a birth certificate serial No. 4266560 showing that he was born on 17.3.2007, while the record indicated that he was charged in 2024. This was not disputed. It is clear that he was 17 years old at the material time and thus a minor for all intents and purposes.
Sentence and the Appellant’s Education
39. The fifth and sixth grounds of appeal relate to the sentence. The Appellant states that he was a Form 3 student and that the sentence jeopardised his education. He also contends that the three-year term was harsh and cruel and that the trial court failed to consider a non-custodial sentence.
40. Section 251 of the Penal Code provides that assault causing actual bodily harm is punishable by imprisonment for five years. A sentence of three years would therefore be within the adult statutory range. However, sentencing is not a mechanical exercise. The court must consider the offender, the offence, the circumstances, the objectives of sentencing, mitigation, proportionality and, where the offender is a child, the best interests of the child.
41. The record shows that the Appellant was treated as a first offender. The prosecution stated that he had no previous records. However, the trial court did not call for a probation officer’s report, did not inquire into his age, did not consider whether he was a student, did not evaluate non-custodial options, and did not consider whether the Children Act applied.
42. Even assuming that the conviction had been safe, the sentence would still have been questionable. If the Appellant were a child, imprisonment as an adult was unlawful in principle. If he were a student and a first offender, the trial court was required to consider whether a non-custodial or rehabilitative sentence would meet the ends of justice. That did not happen.
43. The sentence was therefore harsh, disproportionate and imposed without taking into account relevant factors. The fifth and sixth grounds of appeal succeed.
Whether to Order a Retrial
44. Where a conviction is quashed because the trial was defective, the appellate court may consider whether to order a retrial. The guiding principle is whether the interests of justice require a retrial and whether such an order would occasion injustice to the Appellant. In Fatehali Manji V.R, [1966] EA 343, the Court of Appeal of East Africa restated the principles upon which the court should order a retrial. It said:- “…in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person…” In this case, it is clear that the original trial was defective.
45. In this case, the evidence was insufficient to convict the appellant, and he was treated like an adult during the trial, though the offence occurred when he was a minor. Thus, his rights under Article 53 of the Constitution were violated.
46. A retrial would require the Appellant to undergo a fresh criminal process for an offence allegedly committed in March 2024, after the State and the court failed to apply the proper child justice framework at the time when it mattered most. In the circumstances of this case, a retrial would not serve the interests of justice.
Disposition
47. Having re-evaluated the record in light of the memorandum of appeal, the submissions and the applicable law, I find that the appeal has merit. The prosecution's evidence was not adequately evaluated; the circumstances of identification were not sufficiently tested; the investigations left material gaps; the Appellant’s defence was not properly weighed; and the prosecution did not prove the case beyond a reasonable doubt. In addition, the Appellant was treated as an adult despite material showing that he was a child, or at least that his age required inquiry under the Children Act.
48. Consequently, I make the following orders:
a, The appeal is allowed.
b. The conviction of the Appellant for assault causing actual bodily harm contrary to section 251 of the Penal Code is hereby quashed.
c. The sentence of three years’ imprisonment imposed on 25th February 2025 is hereby set aside.
d. Security be released to depositor.
T.A. ODERA
JUDGE
18.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 20TH DAY OF MAY 2026 IN THE PRESENCE OF APPELLANT , MR OBURE FOR ACCUSED AND CA- KIPCHIRCHIR
JUDGMENT
Introduction
1. The Appellant, Emmanuel Ogega Omare, was charged before the Chief Magistrate’s Court at Ogembo with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars were that on 25th March 2024 at about 2000 hours at Itumbe Location, Sameta Sub-County within Kisii County, he assaulted Jane Moraa Angwenyi, thereby occasioning her actual bodily harm.
2. The Appellant pleaded not guilty. After the trial, the learned trial magistrate found him guilty as charged and convicted him under section 215 of the Criminal Procedure Code. The record shows that, after conviction, the prosecution indicated that the Appellant had no prior record and offered no mitigation. The court sentenced him to serve three years’ imprisonment.
3. The Appellant, being dissatisfied with both conviction and sentence, preferred the present appeal. In his memorandum of appeal dated 10th March 2025, he raises six principal grounds: first, that the trial court failed to properly evaluate the prosecution evidence, which he contends was concocted and fraught with falsehoods, misrepresentations and distortions; secondly, that the trial court failed to evaluate the circumstances, conditions, situation, time and atmosphere surrounding the alleged assault; thirdly, that the court failed to find that no worthwhile investigations were carried out; fourthly, that the prosecution did not prove its case beyond reasonable doubt; fifthly, that the trial court failed to consider the negative impact of the sentence upon him as a Form 3 student; and sixthly, that the sentence was harsh and cruel and that the court failed to consider a non-custodial sentence.
4. In his written submissions, the Appellant further raised the issue that he was a minor at the time of plea, trial, conviction and sentence; that he was treated as an adult throughout the proceedings; that he was unrepresented; that he was allegedly held in adult custody; and that the trial court failed to apply Article 53 of the Constitution and the Children Act.
5. The prosecution conceded to the appeal
6. The appeal, therefore, calls for this Court to consider not only the evidentiary grounds in the memorandum of appeal, but also the broader question of whether the proceedings complied with the constitutional and statutory safeguards applicable to a child in conflict with the law.
Duty of the First Appellate Court
6. This is a first appeal. The duty of a first appellate court is settled. In Okeno v Republic [1972] EA 32, the Court of Appeal held that a first appellate court is required to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
7. The Court must therefore re-evaluate the entire record and determine whether the conviction was supported by evidence beyond a reasonable doubt and whether the sentence was lawful, proper and proportionate.
Evidence before the Trial Court
8. The prosecution called three witnesses. PW1, Jane Moraa Angwenyi, testified that on 25th March 2024 at about 8.00 p.m., she was in her kitchen preparing supper. She entered her room and found someone inside. According to her, the person attacked her, boxed her down and kicked her. She identified the assailant as the Appellant, whom she knew as the son of her step-cousin. She stated that the house had lights and that she saw him well. She later went to the police to report and was treated. On cross-examination, she maintained that the lights were on and that she saw the Appellant coming towards her before the attack.
9. PW2, Nancy Martins, a clinical officer at Gucha Sub-County Hospital, testified on behalf of Agnes Oirere, who had filled the P3 form. She stated that the complainant was seen on 26th March 2024 on allegations of assault and that she had injuries on the neck, teeth, chest and knees. The P3 form and treatment notes were produced. The degree of injury was assessed as “harm.”
10. PW3, CPL Julius Ngeno, stated that he had taken over the matter from PC Chepkwony, who had been transferred. He testified that, from the records, the complainant reported that the Appellant attacked her at her home on 25th March 2024 at about 8.00 p.m.; that the Appellant was arrested the same night; and that the complainant was treated and issued with a P3 form. In cross-examination, he confirmed that the complainant knew the Appellant and that they were related.
11. When placed on his defence, the Appellant gave sworn evidence. He denied the charge. He stated that on the material date at about 8.00 pm, he was at his grandmother’s place and at the tea-buying centre where they were weighing tea. He stated that his mother called his grandmother concerning alleged invaders, and that they went to report to the police, only for him to be arrested and charged.
12. DW2, Mary Teresa Moraa, testified that the Appellant was her grandson. She stated that on the material day, she asked the Appellant’s mother to release the Appellant so that he could take her tea to the buying centre. She stated that she later received information that the Appellant had been accused of assaulting someone, went to the buying centre, found him weighing tea, and later escorted him to the police station. In cross-examination, however, she stated that she was not at the tea-buying centre at 8.00 p.m. and that she arrived there at about 8.30 p.m.
Issues for Determination
13. Having considered the memorandum of appeal, the record and the submissions, the issues for determination are:
a. Whether the trial court properly evaluated the prosecution and defence evidence;
b. Whether the prosecution proved the offence beyond a reasonable doubt;
c. Whether the investigations were so defective as to render the conviction unsafe;
d. Whether the Appellant was a child and, if so, whether the trial complied with the law governing children in conflict with the law;
e. Whether the sentence was lawful and appropriate; and
f. What orders should be issued?
Whether the Trial Court Properly Evaluated the Evidence
14. The first, second and fourth grounds of appeal substantially attack the learned trial magistrate’s evaluation of the evidence. The Appellant contends that the evidence was not properly analysed; that the circumstances of the alleged assault were not sufficiently considered; and that the prosecution's case contained inconsistencies, contradictions and misrepresentations.
15. The judgment of the trial court correctly identified that the complainant’s evidence was central. The complainant stated that she saw the Appellant because the house had lights. The incident was said to have occurred at about 8.00 p.m. inside or around the complainant’s house. The complainant also knew the Appellant. That evidence, if properly tested and accepted, would amount to recognition rather than identification of a stranger.
16. However, even recognition evidence must be approached with caution. In Wamunga v Republic [1989] KLR 424, the Court of Appeal warned that evidence of visual identification in criminal cases can lead to a miscarriage of justice unless it is carefully tested. In R v Turnbull [1977] QB 224, the court set out relevant considerations, including the lighting, distance, period of observation, the complaintns prior knowledge prior knowledge, and the circumstances under which the witness made the identification. It is a trite law that in cases of recognition at night, the possibility of mistake cannot be ruled out, and the courts must be careful before admitting such evidence.
17. Pw1 said that the incident occurred at about 8.00 pm in her room, which was lit by light. The trial court accepted the complainant’s evidence on recognition but did not sufficiently analyse the surrounding circumstances. The court did not fully consider the time of the incident, the nature and source of the light, its intensity, the duration of the encounter, the suddenness of the alleged attack, or the possibility of error notwithstanding prior knowledge. It also did not carefully weigh the Appellant’s defence that he was at a tea-buying centre against the complainant’s evidence placing him at the scene.
18. The Appellant gave a sworn denial and placed himself at the tea-buying centre. DW2 supported him to the extent that she said he had been involved in weighing tea and that she found him at the buying centre. Once an accused raises an alibi, the burden does not shift to him. The prosecution remains under a duty to disprove the defence and prove the charge beyond a reasonable doubt. In Kiarie v Republic [1984] KLR 739, the Court of Appeal held that an accused who raises an alibi does not assume the burden of proving it; the burden remains on the prosecution.
19. In the present case, the learned trial magistrate dismissed the defence as dishonest but did not evaluate the defence case with the prosecution’s case. The court did not expressly analyse whether the prosecution had displaced the Appellant’s version. That omission is material.
Whether the Prosecution Proved the Case Beyond a Reasonable Doubt
21. The offence of assault causing actual bodily harm under section 251 of the Penal Code requires proof that the accused unlawfully assaulted the complainant and occasioned actual bodily harm.
22. The medical evidence showed that the complainant suffered injuries assessed as harm. PW2 produced the P3 form and treatment notes. The Appellant did not contest that the complainant had injuries. The main question was whether the Appellant inflicted them.
23. The burden of proof in criminal cases rests throughout on the prosecution. In Woolmington v Director of Public Prosecutions [1935] AC 462, the House of Lords stated the “golden thread” of criminal law: that it is the duty of the prosecution to prove the prisoner’s guilt. The same principle has been repeatedly applied in Kenya, including in Pius Arap Maina v Republic [2013] eKLR, where the Court of Appeal reiterated that the prosecution must prove its case beyond a reasonable doubt.
24. The alleged assault took place at night. The identification evidence was brief. The prosecution did not call the original investigating officer. PW3 took over the file and testified largely from records. The court did not sufficiently analyse whether the defence evidence raised a reasonable doubt.
25. The Appellant’s complaint that the prosecution failed to prove its case beyond a reasonable doubt, therefore, has force. The issue is not that every minor inconsistency must result in an acquittal. It is that, in this case, the trial court’s evaluation did not adequately address the central evidentiary question: whether the recognition evidence, in the circumstances of a night attack and against the Appellant’s defence, eliminated reasonable doubt.
Whether the Investigations were shoddy
26. The third ground of appeal is that no worthwhile investigations were carried out and that the investigations were shoddy, incomplete and unreliable.
27. The record shows that the officer who investigated the matter originally, PC Chepkwony, did not testify. PW3 stated that he took over the file after PC Chepkwony was transferred. His evidence was substantially based on what was recorded in the file. He did not personally visit the scene, interview the witnesses at the initial stage, or explain why certain lines of inquiry were not pursued.
28. The failure to call the original investigating officer is not invariably fatal. However, where the prosecution's case turns on contested circumstances, including the time of the assault, the scene, the existence of lights, the Appellant’s alleged arrest the same night, and his defence that he was at a tea-buying centre, the investigating officer’s evidence would have been important. He could have clarified whether the alibi was investigated, whether the tea-buying centre records were checked, whether the alleged family dispute was considered, and whether the conditions at the scene supported the complainant’s account.
29. The omission did not merely leave a formal gap; it weakened the evidentiary chain on identity and surrounding circumstances. The Appellant’s complaint regarding the investigations is therefore well-founded as the investigations were not satisfactory .
Whether the Prosecution Proved the Case Beyond a Reasonable Doubt
30. The offence of assault causing actual bodily harm under section 251 of the Penal Code requires proof that the accused unlawfully assaulted the complainant and occasioned actual bodily harm.
31. The medical evidence showed that the complainant suffered injuries assessed as harm. PW2 produced the P3 form and treatment notes. The Appellant did not contest that the complainant had injuries. The main question was whether the Appellant inflicted them.
32. The burden of proof in criminal cases rests throughout on the prosecution. In Woolmington v Director of Public Prosecutions [1935] AC 462, the House of Lords stated the “golden thread” of criminal law: that it is the duty of the prosecution to prove the prisoner’s guilt. The same principle has been repeatedly applied in Kenya, including in Pius Arap Maina v Republic [2013] eKLR, where the Court of Appeal reiterated that the prosecution must prove its case beyond a reasonable doubt.
33. The alleged assault took place at night. The identification evidence was brief. The prosecution did not call the original investigating officer. PW3 took over the file and testified largely from records. The court did not sufficiently analyse whether the defence evidence raised a reasonable doubt.
34. The Appellant’s complaint that the prosecution failed to prove its case beyond a reasonable doubt is therefore plausible. The issue goes to the root of the prosecution’s case. It is that, in this case, the trial court’s evaluation did not adequately address the central evidentiary question: whether the recognition evidence, in the circumstances of a night attack and against the Appellant’s defence, eliminated reasonable doubt.
Whether the Appellant Was a Child and Whether Child Safeguards Were Observed
30. Although the memorandum of appeal focused on the evaluation of evidence and sentence, the written submissions raised a further and fundamental question: that the Appellant was a minor at the time of plea, trial, conviction and sentence. The submissions state that the Appellant was born on 17th March 2007, and was therefore 17 years old when he was first presented to court and when the offence was allegedly committed.
31. The proceedings show that when the Appellant gave his defence on 21st January 2025, he stated that he was then 18 years old. That statement itself ought to have alerted the trial court to the probability that he had been below 18 years at the time of the plea and at the time of the alleged offence. The court was then required to inquire into his age.
32. Section 143 of the Children Act, 2022 requires a court to make a due inquiry as to age where a person brought before it appears to be under eighteen years. The court may take such evidence as may be necessary, including medical evidence. The importance of age inquiry is that it determines the procedure, safeguards, detention conditions and sentencing options applicable to the child.
33. Article 53(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Article 53(1)(f) further provides that every child has the right not to be detained except as a measure of last resort and, when detained, to be held for the shortest appropriate period and to be kept separate from adults.
34. The Children Act also contains safeguards for children in conflict with the law. These include the child’s right to privacy, appropriate assistance, protective procedure, and age-appropriate sentencing. The child justice system is not merely punitive; it is rehabilitative and protective.
35. The authorities placed before the Court by the Appellant are instructive. In NKR v Republic [2021] eKLR, the High Court held that where a minor is processed, tried and sentenced as an adult, the resulting proceedings are fundamentally flawed because the court, prosecution and investigating agencies have failed to apply the constitutional and statutory protections due to children. The conviction and sentence were thus quashed
36. In the present appeal, the trial court did not inquire into the Appellant’s age. The Appellant was not represented. There is no indication that a parent, guardian, children officer or probation officer participated in the proceedings. There is no indication that the proceedings were conducted with the privacy protections required in respect of a child. There is no indication that the trial court considered child-specific safeguards at plea, during trial, or at sentence.
37. I therefore find that the Appellant was dealt with as an adult when the record and the material placed before this Court show that he was, at the very least, a person whose age required formal inquiry. That failure went to the root of the trial. It affected the fairness of the proceedings and the legality of the sentence. In any event, in this appeal, the appellant produced a birth certificate serial No. 4266560 showing that he was born on 17.3.2007, while the record indicated that he was charged in 2024. This was not disputed. It is clear that he was 17 years old at the material time and thus a minor for all intents and purposes.
Sentence and the Appellant’s Education
39. The fifth and sixth grounds of appeal relate to the sentence. The Appellant states that he was a Form 3 student and that the sentence jeopardised his education. He also contends that the three-year term was harsh and cruel and that the trial court failed to consider a non-custodial sentence.
40. Section 251 of the Penal Code provides that assault causing actual bodily harm is punishable by imprisonment for five years. A sentence of three years would therefore be within the adult statutory range. However, sentencing is not a mechanical exercise. The court must consider the offender, the offence, the circumstances, the objectives of sentencing, mitigation, proportionality and, where the offender is a child, the best interests of the child.
41. The record shows that the Appellant was treated as a first offender. The prosecution stated that he had no previous records. However, the trial court did not call for a probation officer’s report, did not inquire into his age, did not consider whether he was a student, did not evaluate non-custodial options, and did not consider whether the Children Act applied.
42. Even assuming that the conviction had been safe, the sentence would still have been questionable. If the Appellant were a child, imprisonment as an adult was unlawful in principle. If he were a student and a first offender, the trial court was required to consider whether a non-custodial or rehabilitative sentence would meet the ends of justice. That did not happen.
43. The sentence was therefore harsh, disproportionate and imposed without taking into account relevant factors. The fifth and sixth grounds of appeal succeed.
Whether to Order a Retrial
44. Where a conviction is quashed because the trial was defective, the appellate court may consider whether to order a retrial. The guiding principle is whether the interests of justice require a retrial and whether such an order would occasion injustice to the Appellant. In Fatehali Manji V.R, [1966] EA 343, the Court of Appeal of East Africa restated the principles upon which the court should order a retrial. It said:- “…in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person…” In this case, it is clear that the original trial was defective.
45. In this case, the evidence was insufficient to convict the appellant, and he was treated like an adult during the trial, though the offence occurred when he was a minor. Thus, his rights under Article 53 of the Constitution were violated.
46. A retrial would require the Appellant to undergo a fresh criminal process for an offence allegedly committed in March 2024, after the State and the court failed to apply the proper child justice framework at the time when it mattered most. In the circumstances of this case, a retrial would not serve the interests of justice.
Disposition
47. Having re-evaluated the record in light of the memorandum of appeal, the submissions and the applicable law, I find that the appeal has merit. The prosecution's evidence was not adequately evaluated; the circumstances of identification were not sufficiently tested; the investigations left material gaps; the Appellant’s defence was not properly weighed; and the prosecution did not prove the case beyond a reasonable doubt. In addition, the Appellant was treated as an adult despite material showing that he was a child, or at least that his age required inquiry under the Children Act.
48. Consequently, I make the following orders:
a, The appeal is allowed.
b. The conviction of the Appellant for assault causing actual bodily harm contrary to section 251 of the Penal Code is hereby quashed.
c. The sentence of three years’ imprisonment imposed on 25th February 2025 is hereby set aside.
d. Security be released to depositor.
T.A. ODERA
JUDGE
18.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 20TH DAY OF MAY 2026 IN THE PRESENCE OF APPELLANT , MR OBURE FOR ACCUSED AND CA- KIPCHIRCHIR