(Being an Appeal against the judgment of the Chief Magistrate’s Court at Malindi Hon. James Ongondo (SPM) delivered on 19 th December, 2024)
Introduction.
This is an appeal against the judgment delivered by Hon. James Ongondo Senior Principal Magistrate on 19 th December, 2024 in Criminal Case No. E601 of 2023 whereby the appellant was convicted on the charge of assault causing actual bodily harm contrary to Section 251 of the Penal Code and accusing another of being a witch contrary to Section 6 of the Witchcraft Act. The particulars of the charges were that on 18 th June, 2021 at Maweni area Kilifi County the appellant unlawfully assaulted Josephine Minyazi Jilani and also willfully and unlawfully and without any reasonable cause accused Josephine Minyazi Jilani to be a witch when he uttered words “wewe ni mchawi” meaning “you are a witch”.
The appellant has appealed against both the conviction and sentence on the grounds set out below.
Grounds of Appeal.
The appellant has raised the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution case was not proved beyond reasonable doubt.
2. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution case was made up of fabrications.
3. That the learned trial magistrate erred in law and facts by failing to consider the appellant’s defence.
4. That the learned trial magistrate erred in law and facts by failing to consider that the appellant was not identified as the perpetrator.
Summary of the prosecution case.
The prosecution case was that on 18 th June, 2021 at around 6.30am the complainant opened her gate to venture outside when she saw the appellant armed with a club. The appellant hit her with the club and called her a witch. She managed to get away but the appellant continued pushing her and hitting her with fists on her head. In cross-examination she said that at the time of assault she was with another woman and a girl. She denied provoking the appellant. She further said that she had holy water which she was splashing in the house to protect her house from theft. She said she believed the appellant called her a witch because she was sprinkling water in her house. She denied that she sprinkled the water on the window of the appellant’s house.
PW2 on her part said she was at the complainant’s house at the time when the appellant came and stood at the door. He started telling the complainant that she was a witch. The appellant had a club which he used to push the complainant.
PW3 a boda rider told the court that on the material date and time he had gone to pick a passenger at Maweni area. He found the appellant assaulting the complainant and calling her a witch. He said the appellant had a stick.
PW4 produced the P3 Form and treatment notes prepared by Dr. Ibrahim whom he had worked with for more that 10 years. He testified that the treatment notes showed that the complainant was assaulted on 18 th June, 2021. He said the complainant’s head was swollen and the right eye was also swollen and painful. He said the injuries were classified as harm and were caused by a blunt object.
PW5 P.C Martin Muturi from Malindi police station investigated the case. He said the mater was reported on 18 th June, 2021. He recorded statement from the complainant and issued her with a P3 Form and later recorded statements from her witnesses. He also summoned the appellant to the station and recorded his statement.
Summary of defence case.
The appellant gave a sworn testimony in his defence. He said that on 16 th June, 2021 at 12.00am he was watching a movie on his phone when he heard someone sprinkling water into their house through a wire mesh. He said he heard a woman voice murmuring “kufa die”. He was alarmed and when he asked who it was the woman ran into her house. He said he was unable to sleep and he stayed awake the whole night. In the morning he asked the complainant about the issue. The complainant started shouting at him calling him a son of a prostitute. After that she started saying that he had attacked her and called her a witch and that she would make sure he is jailed. He left the area and went to stay at Sea Breeze with his father. After three days police went to Maweni but they did not find him. Later he went to the police station with his mother where he recorded statement.
DW2 Juma Hamisi testified that the complainant was a neighbour when he used to stay with the appellant his cousin. He said on 18 th June, 2021 at 6.00am the complainant was sprinkling water through the window. He said when he returned to the appellant’s house to collect his clothes, he found the complainant saying she had been called a witch and assaulted. In cross-examination he said he was not present at night when water was allegedly sprinkled. He was also not present when the appellant went to talk with the complainant about sprinkling water at night. He said he cannot tell what happened in the morning of 18 th June, 2021.
DW3 testified that on the material date he was out of the country in Saudi Arabia working.
DW4 testified that on 18 th June, 2021 he had rented the appellant and complainant house. The appellant was staying in house No. 0160 while the complainant was in house No. 0159. He told the court that on the material date at around 6.30am the appellant called him and informed him what had happened in the morning. He called the neighbours and particularly Mr. Badi who told him that nothing had happened. In cross-examination he said he did not witness anything on 18 th June, 2021.
DW5 told the court that the appellant was his neighbour. He said that on the material date the appellant asked the complainant why she was sprinkling water on his window. The complainant started abusing the appellant and then left. He said he did not see any assault.
DW6 said that on a date she cannot exactly remember he was at Maweni. She was washing utensils when she saw the appellant asking the complainant why she sprinkled water at his window. The complainant abused the appellant. People came to the scene and the complainant left. She said she did not see the complainant being injured.
Submissions.
The appellant in his submissions faulted the trial court for allowing amendments of the charge sheet when the matter had proceeded and PW1 testified which fundamentally changed the nature of the charges. He submitted that the amendment brought the allegation that the appellant assaulted the complainant by pushing her abandoning the allegation that the appellant used a metal rod. He also faulted the trial court for allowing introduction of another count of accusing the complainant for being a witch long after the appellant had already understood the charge he was facing. He submitted that the amendment misled him and occasioned embarrassment in preparation of his defence thus occasioning him injustice. He relied on the case of Sigilai vs Republic (2004) 2 KLR where the court emphasized that an amendment which introduces a new set of facts or alters the character of the offence after trial had commenced is prejudicial and ought not to be allowed. He alleged that the amendment resulted into material shift as to the alleged weapon used, mode of assault and alternative allegations. He thus submitted that the amendment embarrassed him in his defence.
The appellant further submitted that the prosecution failed to prove the actus reus of the offence of assault causing actual bodily harm even after the amendment. He submitted that the evidence adduced by the prosecution was contradictory and inconsistent. He contended that though the charge alleged that the appellant assaulted the complainant by pushing her, the complainant did not mention being pushed but instead alleged that she was hit with fist and metal rod. He submitted these allegations were never reconciled. He further submitted that not a single witness testified witnessing any physical assault thus there was no single eyewitness to support the complainant version that she was assaulted. He contended that the defence case was never shaken by the prosecution notwithstanding that the burden of proof is always on the prosecution.
The appellant further submitted that the trial court admitted the medical evidence which was inadmissible and unreliable. He contended that PW4 who produced the P3 Form admitted that he was not the one who examined or treated the complainant neither did he fill the P3 Form. He alleged that no explanation or foundation laid why the maker of the P3 Form was never called. He relied on the case of Kiarie vs Republic (1984) KLR 739 where the Court of Appeal emphasized that medical evidence must be produced by the maker.
Further the appellant attacked the investigation terming the same as shoddy. He alleged that even though the offence is alleged to have been committed on 18 th June, 2021 the investigating officer visited the scene of crime way later on 2 nd February, 2022. He further submitted that PW5 conceded that the appellant was charged before the investigations were completed thus violating his right to fair trial under Article 50 of the Constitution.
The appellant further submitted that the trial court failed to consider his defence. He contended that the trial court failed to consider the evidence adduced by his defence witnesses who were independent with no interest to the outcome of the outcome of the case. He relied on the case of Oketch Gicheru vs Republic (2006) e KLR where the Court of Appeal emphasized the duty of the trial court to meaningfully evaluate the defence evidence and that failure to do constitute an error of law warranting interference by the appellate court.
He concluded his submissions by contending that the conviction was unsafe and cannot be sustained in law.
The respondent in its submissions supported the conviction by submitting that the offence of assault causing actual bodily harm was proved beyond reasonable doubt. It was submitted that the prosecution proved that the assault was unlawful and it occasioned the complainant actual bodily harm. It was further submitted that the prosecution proved the link between the assault and the harm occasioned to the complainant to the appellant. It was further contended that the sentence imposed was justified taking into consideration that the maximum sentence for the offence is five years.
On the second count of accusing another to be a witch, it was submitted that the prosecution proved the elements of the offence to wit, accusing another to be a witch and the exact words uttered being directed at the complainant. Reliance was placed on the case of Republic vs Chengo Criminal Appeal E038 of 2024 (2025) KEHC 5230 (KLR).
On the appellant allegation that the trial court failed to consider his defence, it was submitted that the trial court duly considered the appellant’s defence and found that the same was not tenable to outweigh the prosecution case.
Analysis and Determination
This being the first appeal, this court is duty bound to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent conclusion without overlooking the fact it did not have the opportunity to hear and see the witnesses testify before the trial court. This cardinal principle was laid down in the case of Okeno vs Republic (9172) E.A 32. Further the it must be borne in mind that the prosecution bears the burden to prove the charges against an accused person beyond reasonable doubt. Bearing the foregoing in mind, the issues for determination in this case are:
1. Whether the amendment of the charges when the matter had proceeded prejudiced the appellant’s right to fair trial;
2. Whether the charges were proved beyond reasonable doubt as required;
3. Whether the trial court considered the appellant’s defence, and if so, whether the same place doubt on the prosecution’s case; and
4. Whether the sentence imposed by the trial court was lawful.
Regarding the first issue, the appellant argued that by allowing the amendment of the charge sheet when the matter had proceeded prejudiced his right to fair trial in the sense that he was embarrassed and he could not mount his defence leading to failure of justice. The law on amendment of charges is governed by Section 214 of the Criminal Procedure Code which provides:
“(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that—
(i) where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
(ii) where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.”
From the foregoing section, the court has power to amend the charges at any stage before the close of the prosecution case. The only safeguard is that once the charges have been altered, the court shall call upon the accused person to plead to the altered or amended charges and the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate.
In the instant case, the charges were amended on 23 rd May, 2024. The amendment introduced by the prosecution was the addition of count two of accusing the complainant of being a witch. As at the time of the amendment three prosecution witnesses had testified. Since the charge of assault was not affected by the amendment, the court ordered for the recall of the complainant for further cross-examination. The appellant was given an opportunity to further cross-examine the complainant. It cannot be said that the appellant was prejudiced. The allegations by the appellant that the amendment made a drastic shift so as to occasion miscarriage of justice cannot be tenable. There was no material alteration to the charge of assault as alleged by the appellant so as to amount to unfair trial to the appellant. The appellant had already cross-examined the complainant on the initial charge of assault. The amendment did not introduce any material changes to the evidence the complainant had adduced before the amendment. I therefore find the contention by the appellant that he was not accorded fair trial misplaced.
Regarding whether the prosecution proved the charges as required, the accused was charged in the first count with assault causing actual bodily harm contrary to Section251 of the Penal Code which provides:
“Any person who commits assault causing actual bodily is guilty of misdemeanor and is liable to imprisonment for five years.”
In the case of Ndaa vs Republic (1984) KLR the ingredients of the offence of assault causing actual bodily harm were spelt out as:
a) Assaulting the complainant or the victim;
b) Occasioning actual bodily harm; and
c) The accused was perpetrator.
In the instant case the complainant testified that on the material date she was in her house. When she opened the gate, she saw the appellant who hit him with a with a club calling her a witch. The appellant continued to push her and hit her with a fist on the head. PW2 who was at the scene witnessed the incident. She said she saw the appellant calling the complainant a witch and pushed her using a club. PW3 similarly told the court that he witnessed the appellant assaulting the complainant. The appellant in his defence admitted that he had an argument with the complainant on the material date when he asked her why she was sprinkling water into his room. DW2 also confirmed that the appellant questioned the complainant why he was sprinkling water to his house. He however said that he did not witness the assault. DW4 on his part said that the appellant called him and informed him what the complainant had done but he was told by Badi that nothing happened as alleged by the complainant.DW5 on his part also said he heard the appellant asking the complainant why he was sprinkling water on his window. Similarly, DW6 also gave same version of the event save that she said she did not witness the assault. It is clear from the version given by the complainant and his witnesses and the appellant and his witnesses that there was altercation between the complainant and the appellant save that all the defence witnesses said nothing happened like assault. The version given by the complainant and his witnesses weighed against that of the appellant and his witnesses clearly shows that the appellant assaulted the complainant. The trial court considered both version and found the appellant’s defence untenable. The medical evidence adduced showed that the complainant sustained injuries. I have no reason to fault the trial court on the finding that the appellant assaulted the complainant.
On whether the assault was unlawful, the prosecution is bound to show that the same was intentional and the appellant unlawfully applied force to the complainant. It is evident that the appellant must have been unhappy by the action of the complainant of sprinkling water on his window. This must have motivated the appellant to assault the complainant. The assault was therefore intentional and consequently unlawful. The same occasioned the complainant actual bodily harm as per the medical evidence adduced.
The appellant argued that PW4 who produced the P3 Form was not the maker of the same. Indeed, that is true but the appellant did not raise an objection and, in any case, the P3 Form is a public document which in my view was rightly produced in court.
From the foregoing, I am satisfied that the charge of assault causing actual bodily harm was proved as required and the trial court cannot be faulted.
On the charge of accusing the complainant to be a witch contrary to Section 6 of the Witchcraft Act, the essential ingredients which the prosecution must establish is the act of accusation which the accused person explicitly stated to the complainant with the intention of to cause fear or harm, stigma or incite the public against the victim. In this case it is common evidence that the appellant accused the complainant of sprinkling water to his window. The complainant in her evidence was categorical that the appellant called her a witch. This evidence by the complainant was never rebutted by the appellant. The trial court rightly found that the charge was properly proved as required and I have no reason to interfere with that finding.
Regarding the sentence in respect of count one the trial court sentenced the appellant to serve three years. The sentence provided for under Section 251 of the Penal Code is imprisonment for five years. As to the charge under Section 6 of the Witchcraft Act, the sentence provide for is a fine not exceeding Kshs. 500/= or imprisonment for a term not exceeding five years. in this case the trial court sentenced the appellant to serve two years. I have considered the sentence imposed by the trial court against the appellant. I note that the appellant was a first offender. He told the court that he was the sole bread winner and that he left school after the charges herein. In my view the sentence imposed on the appellant was harsh in the circumstances. I am minded to interfere with the same. I shall substitute the sentence in both counts to the term the appellant has already served in prison.
The upshot is that the appeal partly succeeds and the appellant shall forthwith be released from prison.
Dated, signed and delivered virtually this 17 th day of June, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually from Malindi prison
Ms. Mutua for respondent appearing virtually from Malindi
Ms. Otwo Court Assistant appearing virtually from Milimani Law Courts.
2
Introduction.
This is an appeal against the judgment delivered by Hon. James Ongondo Senior Principal Magistrate on 19 th December, 2024 in Criminal Case No. E601 of 2023 whereby the appellant was convicted on the charge of assault causing actual bodily harm contrary to Section 251 of the Penal Code and accusing another of being a witch contrary to Section 6 of the Witchcraft Act. The particulars of the charges were that on 18 th June, 2021 at Maweni area Kilifi County the appellant unlawfully assaulted Josephine Minyazi Jilani and also willfully and unlawfully and without any reasonable cause accused Josephine Minyazi Jilani to be a witch when he uttered words “wewe ni mchawi” meaning “you are a witch”.
The appellant has appealed against both the conviction and sentence on the grounds set out below.
Grounds of Appeal.
The appellant has raised the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution case was not proved beyond reasonable doubt.
2. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution case was made up of fabrications.
3. That the learned trial magistrate erred in law and facts by failing to consider the appellant’s defence.
4. That the learned trial magistrate erred in law and facts by failing to consider that the appellant was not identified as the perpetrator.
Summary of the prosecution case.
The prosecution case was that on 18 th June, 2021 at around 6.30am the complainant opened her gate to venture outside when she saw the appellant armed with a club. The appellant hit her with the club and called her a witch. She managed to get away but the appellant continued pushing her and hitting her with fists on her head. In cross-examination she said that at the time of assault she was with another woman and a girl. She denied provoking the appellant. She further said that she had holy water which she was splashing in the house to protect her house from theft. She said she believed the appellant called her a witch because she was sprinkling water in her house. She denied that she sprinkled the water on the window of the appellant’s house.
PW2 on her part said she was at the complainant’s house at the time when the appellant came and stood at the door. He started telling the complainant that she was a witch. The appellant had a club which he used to push the complainant.
PW3 a boda rider told the court that on the material date and time he had gone to pick a passenger at Maweni area. He found the appellant assaulting the complainant and calling her a witch. He said the appellant had a stick.
PW4 produced the P3 Form and treatment notes prepared by Dr. Ibrahim whom he had worked with for more that 10 years. He testified that the treatment notes showed that the complainant was assaulted on 18 th June, 2021. He said the complainant’s head was swollen and the right eye was also swollen and painful. He said the injuries were classified as harm and were caused by a blunt object.
PW5 P.C Martin Muturi from Malindi police station investigated the case. He said the mater was reported on 18 th June, 2021. He recorded statement from the complainant and issued her with a P3 Form and later recorded statements from her witnesses. He also summoned the appellant to the station and recorded his statement.
Summary of defence case.
The appellant gave a sworn testimony in his defence. He said that on 16 th June, 2021 at 12.00am he was watching a movie on his phone when he heard someone sprinkling water into their house through a wire mesh. He said he heard a woman voice murmuring “kufa die”. He was alarmed and when he asked who it was the woman ran into her house. He said he was unable to sleep and he stayed awake the whole night. In the morning he asked the complainant about the issue. The complainant started shouting at him calling him a son of a prostitute. After that she started saying that he had attacked her and called her a witch and that she would make sure he is jailed. He left the area and went to stay at Sea Breeze with his father. After three days police went to Maweni but they did not find him. Later he went to the police station with his mother where he recorded statement.
DW2 Juma Hamisi testified that the complainant was a neighbour when he used to stay with the appellant his cousin. He said on 18 th June, 2021 at 6.00am the complainant was sprinkling water through the window. He said when he returned to the appellant’s house to collect his clothes, he found the complainant saying she had been called a witch and assaulted. In cross-examination he said he was not present at night when water was allegedly sprinkled. He was also not present when the appellant went to talk with the complainant about sprinkling water at night. He said he cannot tell what happened in the morning of 18 th June, 2021.
DW3 testified that on the material date he was out of the country in Saudi Arabia working.
DW4 testified that on 18 th June, 2021 he had rented the appellant and complainant house. The appellant was staying in house No. 0160 while the complainant was in house No. 0159. He told the court that on the material date at around 6.30am the appellant called him and informed him what had happened in the morning. He called the neighbours and particularly Mr. Badi who told him that nothing had happened. In cross-examination he said he did not witness anything on 18 th June, 2021.
DW5 told the court that the appellant was his neighbour. He said that on the material date the appellant asked the complainant why she was sprinkling water on his window. The complainant started abusing the appellant and then left. He said he did not see any assault.
DW6 said that on a date she cannot exactly remember he was at Maweni. She was washing utensils when she saw the appellant asking the complainant why she sprinkled water at his window. The complainant abused the appellant. People came to the scene and the complainant left. She said she did not see the complainant being injured.
Submissions.
The appellant in his submissions faulted the trial court for allowing amendments of the charge sheet when the matter had proceeded and PW1 testified which fundamentally changed the nature of the charges. He submitted that the amendment brought the allegation that the appellant assaulted the complainant by pushing her abandoning the allegation that the appellant used a metal rod. He also faulted the trial court for allowing introduction of another count of accusing the complainant for being a witch long after the appellant had already understood the charge he was facing. He submitted that the amendment misled him and occasioned embarrassment in preparation of his defence thus occasioning him injustice. He relied on the case of Sigilai vs Republic (2004) 2 KLR where the court emphasized that an amendment which introduces a new set of facts or alters the character of the offence after trial had commenced is prejudicial and ought not to be allowed. He alleged that the amendment resulted into material shift as to the alleged weapon used, mode of assault and alternative allegations. He thus submitted that the amendment embarrassed him in his defence.
The appellant further submitted that the prosecution failed to prove the actus reus of the offence of assault causing actual bodily harm even after the amendment. He submitted that the evidence adduced by the prosecution was contradictory and inconsistent. He contended that though the charge alleged that the appellant assaulted the complainant by pushing her, the complainant did not mention being pushed but instead alleged that she was hit with fist and metal rod. He submitted these allegations were never reconciled. He further submitted that not a single witness testified witnessing any physical assault thus there was no single eyewitness to support the complainant version that she was assaulted. He contended that the defence case was never shaken by the prosecution notwithstanding that the burden of proof is always on the prosecution.
The appellant further submitted that the trial court admitted the medical evidence which was inadmissible and unreliable. He contended that PW4 who produced the P3 Form admitted that he was not the one who examined or treated the complainant neither did he fill the P3 Form. He alleged that no explanation or foundation laid why the maker of the P3 Form was never called. He relied on the case of Kiarie vs Republic (1984) KLR 739 where the Court of Appeal emphasized that medical evidence must be produced by the maker.
Further the appellant attacked the investigation terming the same as shoddy. He alleged that even though the offence is alleged to have been committed on 18 th June, 2021 the investigating officer visited the scene of crime way later on 2 nd February, 2022. He further submitted that PW5 conceded that the appellant was charged before the investigations were completed thus violating his right to fair trial under Article 50 of the Constitution.
The appellant further submitted that the trial court failed to consider his defence. He contended that the trial court failed to consider the evidence adduced by his defence witnesses who were independent with no interest to the outcome of the outcome of the case. He relied on the case of Oketch Gicheru vs Republic (2006) e KLR where the Court of Appeal emphasized the duty of the trial court to meaningfully evaluate the defence evidence and that failure to do constitute an error of law warranting interference by the appellate court.
He concluded his submissions by contending that the conviction was unsafe and cannot be sustained in law.
The respondent in its submissions supported the conviction by submitting that the offence of assault causing actual bodily harm was proved beyond reasonable doubt. It was submitted that the prosecution proved that the assault was unlawful and it occasioned the complainant actual bodily harm. It was further submitted that the prosecution proved the link between the assault and the harm occasioned to the complainant to the appellant. It was further contended that the sentence imposed was justified taking into consideration that the maximum sentence for the offence is five years.
On the second count of accusing another to be a witch, it was submitted that the prosecution proved the elements of the offence to wit, accusing another to be a witch and the exact words uttered being directed at the complainant. Reliance was placed on the case of Republic vs Chengo Criminal Appeal E038 of 2024 (2025) KEHC 5230 (KLR).
On the appellant allegation that the trial court failed to consider his defence, it was submitted that the trial court duly considered the appellant’s defence and found that the same was not tenable to outweigh the prosecution case.
Analysis and Determination
This being the first appeal, this court is duty bound to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent conclusion without overlooking the fact it did not have the opportunity to hear and see the witnesses testify before the trial court. This cardinal principle was laid down in the case of Okeno vs Republic (9172) E.A 32. Further the it must be borne in mind that the prosecution bears the burden to prove the charges against an accused person beyond reasonable doubt. Bearing the foregoing in mind, the issues for determination in this case are:
1. Whether the amendment of the charges when the matter had proceeded prejudiced the appellant’s right to fair trial;
2. Whether the charges were proved beyond reasonable doubt as required;
3. Whether the trial court considered the appellant’s defence, and if so, whether the same place doubt on the prosecution’s case; and
4. Whether the sentence imposed by the trial court was lawful.
Regarding the first issue, the appellant argued that by allowing the amendment of the charge sheet when the matter had proceeded prejudiced his right to fair trial in the sense that he was embarrassed and he could not mount his defence leading to failure of justice. The law on amendment of charges is governed by Section 214 of the Criminal Procedure Code which provides:
“(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that—
(i) where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
(ii) where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.”
From the foregoing section, the court has power to amend the charges at any stage before the close of the prosecution case. The only safeguard is that once the charges have been altered, the court shall call upon the accused person to plead to the altered or amended charges and the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate.
In the instant case, the charges were amended on 23 rd May, 2024. The amendment introduced by the prosecution was the addition of count two of accusing the complainant of being a witch. As at the time of the amendment three prosecution witnesses had testified. Since the charge of assault was not affected by the amendment, the court ordered for the recall of the complainant for further cross-examination. The appellant was given an opportunity to further cross-examine the complainant. It cannot be said that the appellant was prejudiced. The allegations by the appellant that the amendment made a drastic shift so as to occasion miscarriage of justice cannot be tenable. There was no material alteration to the charge of assault as alleged by the appellant so as to amount to unfair trial to the appellant. The appellant had already cross-examined the complainant on the initial charge of assault. The amendment did not introduce any material changes to the evidence the complainant had adduced before the amendment. I therefore find the contention by the appellant that he was not accorded fair trial misplaced.
Regarding whether the prosecution proved the charges as required, the accused was charged in the first count with assault causing actual bodily harm contrary to Section251 of the Penal Code which provides:
“Any person who commits assault causing actual bodily is guilty of misdemeanor and is liable to imprisonment for five years.”
In the case of Ndaa vs Republic (1984) KLR the ingredients of the offence of assault causing actual bodily harm were spelt out as:
a) Assaulting the complainant or the victim;
b) Occasioning actual bodily harm; and
c) The accused was perpetrator.
In the instant case the complainant testified that on the material date she was in her house. When she opened the gate, she saw the appellant who hit him with a with a club calling her a witch. The appellant continued to push her and hit her with a fist on the head. PW2 who was at the scene witnessed the incident. She said she saw the appellant calling the complainant a witch and pushed her using a club. PW3 similarly told the court that he witnessed the appellant assaulting the complainant. The appellant in his defence admitted that he had an argument with the complainant on the material date when he asked her why she was sprinkling water into his room. DW2 also confirmed that the appellant questioned the complainant why he was sprinkling water to his house. He however said that he did not witness the assault. DW4 on his part said that the appellant called him and informed him what the complainant had done but he was told by Badi that nothing happened as alleged by the complainant.DW5 on his part also said he heard the appellant asking the complainant why he was sprinkling water on his window. Similarly, DW6 also gave same version of the event save that she said she did not witness the assault. It is clear from the version given by the complainant and his witnesses and the appellant and his witnesses that there was altercation between the complainant and the appellant save that all the defence witnesses said nothing happened like assault. The version given by the complainant and his witnesses weighed against that of the appellant and his witnesses clearly shows that the appellant assaulted the complainant. The trial court considered both version and found the appellant’s defence untenable. The medical evidence adduced showed that the complainant sustained injuries. I have no reason to fault the trial court on the finding that the appellant assaulted the complainant.
On whether the assault was unlawful, the prosecution is bound to show that the same was intentional and the appellant unlawfully applied force to the complainant. It is evident that the appellant must have been unhappy by the action of the complainant of sprinkling water on his window. This must have motivated the appellant to assault the complainant. The assault was therefore intentional and consequently unlawful. The same occasioned the complainant actual bodily harm as per the medical evidence adduced.
The appellant argued that PW4 who produced the P3 Form was not the maker of the same. Indeed, that is true but the appellant did not raise an objection and, in any case, the P3 Form is a public document which in my view was rightly produced in court.
From the foregoing, I am satisfied that the charge of assault causing actual bodily harm was proved as required and the trial court cannot be faulted.
On the charge of accusing the complainant to be a witch contrary to Section 6 of the Witchcraft Act, the essential ingredients which the prosecution must establish is the act of accusation which the accused person explicitly stated to the complainant with the intention of to cause fear or harm, stigma or incite the public against the victim. In this case it is common evidence that the appellant accused the complainant of sprinkling water to his window. The complainant in her evidence was categorical that the appellant called her a witch. This evidence by the complainant was never rebutted by the appellant. The trial court rightly found that the charge was properly proved as required and I have no reason to interfere with that finding.
Regarding the sentence in respect of count one the trial court sentenced the appellant to serve three years. The sentence provided for under Section 251 of the Penal Code is imprisonment for five years. As to the charge under Section 6 of the Witchcraft Act, the sentence provide for is a fine not exceeding Kshs. 500/= or imprisonment for a term not exceeding five years. in this case the trial court sentenced the appellant to serve two years. I have considered the sentence imposed by the trial court against the appellant. I note that the appellant was a first offender. He told the court that he was the sole bread winner and that he left school after the charges herein. In my view the sentence imposed on the appellant was harsh in the circumstances. I am minded to interfere with the same. I shall substitute the sentence in both counts to the term the appellant has already served in prison.
The upshot is that the appeal partly succeeds and the appellant shall forthwith be released from prison.
Dated, signed and delivered virtually this 17 th day of June, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually from Malindi prison
Ms. Mutua for respondent appearing virtually from Malindi
Ms. Otwo Court Assistant appearing virtually from Milimani Law Courts.
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