(An appeal arising from a ruling by Hon. G. Serem (RM) in Kisumu Cr. Case No. E791 of 2022)
A. Case Background:
1. The Respondent was arraigned before the Chief Magistrate’s Court at Kisumu in Criminal Case No. E791 of 2022 charged with the offence of assault contrary to Section 251 of the Penal Code.
2. The particulars of the charge were that on 2nd October, 2022 at around 0530hrs at Tom Boya Estate in Kisumu the Respondent assaulted Samuel Omabere by slapping his head, cheeks and right hand thus occasioning him actual bodily harm.
3. The Respondent pleaded not guilty and the matter was set down for hearing with the Appellant calling a total of five (5) witnesses. Upon re-evaluating the evidence adduced by the Appellant, the trial court put the Respondent on her defence. She did not call any witnesses but gave a sworn testimony.
B. Evidence:
4. PW1, Samuel Omabere, the complainant whom upon being subjected to voire dire examination satisfied the trial court on his intelligence and ability to tell the truth, testified on affirmation that he was a pupil at Aga Khan Primary School and that he stayed with his father Thomas Nyamoroyo Omabere. On the material day at about 0530hrs he was at home alone doing his homework in the dining room when he heard the gate being opened. He thought it was the house help but it turned out to be the Respondent who came in, ate some food and started to beat him on the top of his head and hand. When his father came in, he reported the incident to him. The latter told his aunt who in turn told his mother. PW2, the mother then took him to Migosi sub-county hospital where he was treated as outpatient No. 869/2022.
5. PW2 Winnie Ogolla testified that on 3/10/2022 she was called by Janet Onsongo, the aunt to her son who told her the father to Samuel had informed her that a woman had assaulted her son. She got to his school and noticed the child was very scared and there was a scratch on his right hand. The child told her that the woman had slapped him severally. She then took the child to Migosi sub-county hospital and he was treated. They also had a p3 form filled. On cross examination, she clarified that the event took place on 2nd but she went to see her child on 3rd and she took him to a hospital near her residence. She stated that the Respondent had not been taking care of the children. Upon re examination she stated the fact that the accused was not taking care of her children did not give her right to assault her son.
6. PW3 Millicent Atieno Ndai, a clinical officer at Migosi sub-county hospital testified that on 4/10/2022 she filled a p3 form for a patient; Samuel Omabere who had been physically assaulted. She observed no marks, no tears or stains on his clothing. On physical examination she noticed tenderness on the skull around the forehead, an injury caused by a blunt object that did not cause breach of the skin and a scratch mark on the knuckle. She testified on giving him paracetamol and tetanus. The p3 form was produced as p. exhibit 2. Upon cross examination she confirmed she only took bio-data of the patient and that she did not have knowledge of the child being treated in another facility.
7. PW4 No. 239817 PC Achoka Vincent of the Anti-crime office at
Kisumu central testified on being the arresting officer who after being led by the complainant’s mother and after she positively identified the accused, arrested the accused in her office in Alpha house. She was accused of assault to a teenager.
8. PW5 No. 110722 PC Kimombo Christine at the Kisumu Central gender desk testified that on 4/10/2022 at about 0330hrs a lady by the name Winnie Ogola went to her office with an OB number and a medical report and stated that her child, Samuel Omabere aged 11 years had been assaulted by Teresa Adhiambo Ounya. The complainant the narrated the ordeal to her and she the issued him with a p3 form for filling at Migosi hospital On cross examination, she stated that she was the investigating officer. Further that the complainant’s mother made the first report and narrated the ordeal followed by the child who also gave his own narrative and stated that the woman had assaulted him when he inquired from her as to why she was taking away food from the fridge. This witness stated that the alleged assault happened when the minor was with the father and when she talked to the latter he declined to record a statement on grounds that the assault was a family issue. One Janet Onsogo who was the father’s sister also declined to record a statement.
9. Upon being placed on her defence, the Respondent gave a sworn
statement while still denying the charge, stated that on the day of the incident, she had gone to look for her husband with her one year old child but only found her step-son, the complainant. She stated that when she called him at around 7:30pm and he stated he was still held up and since she could not wait, she went to the fridge and took some milk and meat and told him he was leaving. She stated she had lived with the complainant in that house and had been taking care of them for six years and had no reason to beat the child.
10. The trial court evaluated the evidence presented by both sides found the Respondent not guilty of the offense of assault stating the evidence by the 11 year old boy was not corroborated and the prosecution did not prove beyond reasonable doubt that the act of assault happened causing bodily harm.
C. Appeal:
11. The Appellant, being aggrieved by the acquitting of the accused, filed the appeal on the following grounds:-
i. The trial court erred in law and fact by failing to find that the ingredients of the offense of assault had been proved by the well corroborated, truthful and consistent evidence of the prosecution witnesses.
ii. The learned trial magistrate erred in law and fact by disregarding the complainant’s testimony.
iii. The learned trial magistrate erred in law and fact by failing to make a finding that it is the Respondent that injured the complainant.
iv. The learned magistrate erred in law and fact in failing to find that the prosecution proved their case beyond reasonable doubt.
v. The trial court erred in acquitting the Respondent on the ground that the evidence of the complainant required corroboration.
vi. The learned magistrate erred in law and fact by acquitting the Respondent on the said offence when the evidence was sufficient and corroborated to warrant a conviction.
vii. The judgement of the trial court was bad in law and against the weight of the evidence since defence did not lay a proper defence as required by law
D. Submissions:
12. The Appellant submits that the overwhelming weight of the well- corroborated evidence presented by the prosecution and the truthful and credible testimony of the complainant and witnesses establishes the Respondent’s guilt beyond reasonable doubt and casts no contradiction together with the fact that the defence failed to raise a proper defence or cast reasonable doubt proves that the acquitting of the Respondent may have resulted in a miscarriage of justice.
13. The Respondent did not file any submissions.
E. Analysis and Determination
14. It is the duty of the High Court as the first appellate court to re-evaluate, re-analyze and re-scrutinize the evidence presented in the trial court so as to arrive at its independent decision whether or not to uphold acquittal of the Respondent. In reaching it’s determination, this court is required to put in mind the fact that it never saw or heard the witnesses as they testified and therefore cannot be expected to make any decision as to the demeanour of the witnesses. The duty of the first Appellant court were set out by the Court of Appeal in Kiilu and another v Republic [2005] 1KLR 174 where it was stated that:
“An Appellant on a first appeal is entitled to expect the evidence in its entirety to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
15. Upon re-evaluation, re-analysis and re-scrutiny of the trial court’s record, the memorandum of appeal and the submissions of the Appellant, the main issues for determination are:-
i. Whether the offence of assault had been proven.
ii. Whether the complainant’s testimony ought to have been disregarded.
iii. Whether it is the Respondent that injured the complainant.
1. Whether the offence of assault had been proven:
For the Appellant, it is submitted that all the elements of the crime of assault as defined in the case of William Kiprotich Cheruiyot v Republic [2021] e KLR were proven beyond reasonable doubt. In that decision, the ingredients were identified to be, assaulting the complainant and occasioning bodily harm. It was underscored that PW1 narrated how he was beaten and injured by the Respondent, and reported to the father, which injuries were corroborated by the clinical officer, PW3 as comprising of the tenderness of the skull and scratch mark on the knuckle.
2. On whether the assault occasioned actual bodily harm, the three words used in the ordinary course and speech demand nor receive no elaboration and should not receive any. Harm is a synonym for injury. Section 4 of the Penal Code states that actual indicates that the injury need not to be permanent and should not be so trivial as to be wholly insignificant. In R v Chan Fook [1994] 2 All ER 557 defines bodily as must only mean the physical human body as opposed to other attributes like reputation or soul. In the testimony of PW3, a clinical officer who examined the complainant stated that there in notable tenderness of the skull around the forehead and a scratch on the knuckle. She assessed the injuries as a product of physical assault. The evidence was never meaningfully challenged or shaken even upon cross examination with the consequence that no reasonable doubt is evident from the record as to the nature of the injury inflicted.
3. The court therefore finds that the offence of assault causing actual bodily harm was proved by the Appellant beyond reasonable doubt as against the Respondent.
4. Whether the complainant’s testimony ought to have been disregarded.
The trial court disregarded PW1’s testimony on the grounds that they were of tender years and their evidence needed corroboration. Section 124 of the Evidence Act states that an accused person shall not be liable to be convicted on the evidence of a child of tender age unless such evidence is corroborated by other material evidence in support thereof implicating him. In determining this appeal, it is crucial for this court to decide whether or not the complainant was of “tender age” If so, this court has to also decide whether or not the complainant’s evidence was corroborated in a material particular as to implicate the Respondent in the offence. The learned magistrate found that the complainant understood the meaning of oath and allowed him to give evidence on oath as he understood his obligation to only speak the truth. The complainant was aged about 12 years. Section 2 of the Children’s Act defines a child as an individual who has not attained the age of eighteen years and a child of tender age as one who has not attained the age of 10 years. According to The Oxford dictionary ‘tender age’ is said to be one who is immature. Taking the two definitions together, a child of tender age seems to be one who is immature and incapable of being responsible for own actions. The Penal Code under section 14(1) highlights that that all children under the age of eight years are said to be immature and not criminally responsible for any acts or omissions.
5. In Njoki v Republic [1987] eKLR, the High Court in Nairobi pronounced itself on who a child of tender years is as follows.
“…Persons highlighted in section 14(1) of the Penal Code are said to be children of tender years. It is therefore our view that section 124 of the Evidence Act only applies to children under the age of 8 years upon whose uncorroborated evidence no conviction can be based. Other considerations ought to be applicable to children who are not ‘tender years”.
In the case before this court, the child is aged about 12 years, not of ‘tender years’ but whose evidence required corroboration as a matter of law, however he was not above 14 years thus his evidence required corroboration as a matter of practice. The complainant claimed that he had been hit by the Respondent on the head and the hand. PW2, Winnie Ogolla, the mother to the complainant testified that Janet Onsongo, the child’s aunt, notified her that the brother told her there was a woman who had beat her child. PW3, Millicent Atieno Ndai who worked at Migosi sub-county hospital where the child was taken by his mother for treatment physically examined. The outpatient hospital card given to them Pmfi1verifies the visit. The boy and noticed tenderness of the skull and scratch mark on the knuckle. She also filled a p3 - Pmfi2 on that day to confirm this. These exhibits co-align with the witness’ statement on where he was injured. The fact that the court conducted a voir dire examination on the witness is valid ground for the court to admit his statement. In the case of Gamaldene Abdi Abdiraham and another v Republic [2013] eKLR, the High Court in Garissa set aside a conviction and sentence of the Appellant on account of failure on the part of the trial magistrate to conduct a voire dire examination of the complainant who aged 13 years at the time she gave evidence.
It is therefore the finding of the court that the complainant’s testimony ought not to have been disregarded as the reasons were not compelling enough and yet it was consistent, and corroborated by other evidence.
6. Whether it is the Respondent that injured the complainant.
The complainant testified that he was at home alone doing his homework when the Respondent came in took food and beat him. The Respondent did not deny going to the house however she alleges that she did not beat the child and had no reason to beat the child. The complainant does not state the reasons he presumed the Respondent had to beat him. She states that she lived in that house with the complainant and had been taking care of them for six years. It is expected that the child would inform her of his injuries had he been hurt by anything before her arrival. The child reported his injuries to his father who arrived 30 minutes later. It is note able that there is no stated contact by the child with any other person before the father came back home and reported the matter to him. The court is led to believe that it was the Respondent.
F. Conclusion and orders:
16. The court has considered the nature, the manner of commissioning of the offence and the principle of sentencing. Ultimately, I find that the appeal has merit and is hereby allowed. According to Section 251 of the Penal Code the penalty given is imprisonment for five years and according to the Sentencing and Policy guidelines where the Respondent is a mother of a child about 3 years old, the court hereby sentences the Respondent to three years imprisonment.
Dated, signed and delivered at Kisumu on this 31st Day of October 2024.
A. Case Background:
1. The Respondent was arraigned before the Chief Magistrate’s Court at Kisumu in Criminal Case No. E791 of 2022 charged with the offence of assault contrary to Section 251 of the Penal Code.
2. The particulars of the charge were that on 2nd October, 2022 at around 0530hrs at Tom Boya Estate in Kisumu the Respondent assaulted Samuel Omabere by slapping his head, cheeks and right hand thus occasioning him actual bodily harm.
3. The Respondent pleaded not guilty and the matter was set down for hearing with the Appellant calling a total of five (5) witnesses. Upon re-evaluating the evidence adduced by the Appellant, the trial court put the Respondent on her defence. She did not call any witnesses but gave a sworn testimony.
B. Evidence:
4. PW1, Samuel Omabere, the complainant whom upon being subjected to voire dire examination satisfied the trial court on his intelligence and ability to tell the truth, testified on affirmation that he was a pupil at Aga Khan Primary School and that he stayed with his father Thomas Nyamoroyo Omabere. On the material day at about 0530hrs he was at home alone doing his homework in the dining room when he heard the gate being opened. He thought it was the house help but it turned out to be the Respondent who came in, ate some food and started to beat him on the top of his head and hand. When his father came in, he reported the incident to him. The latter told his aunt who in turn told his mother. PW2, the mother then took him to Migosi sub-county hospital where he was treated as outpatient No. 869/2022.
5. PW2 Winnie Ogolla testified that on 3/10/2022 she was called by Janet Onsongo, the aunt to her son who told her the father to Samuel had informed her that a woman had assaulted her son. She got to his school and noticed the child was very scared and there was a scratch on his right hand. The child told her that the woman had slapped him severally. She then took the child to Migosi sub-county hospital and he was treated. They also had a p3 form filled. On cross examination, she clarified that the event took place on 2nd but she went to see her child on 3rd and she took him to a hospital near her residence. She stated that the Respondent had not been taking care of the children. Upon re examination she stated the fact that the accused was not taking care of her children did not give her right to assault her son.
6. PW3 Millicent Atieno Ndai, a clinical officer at Migosi sub-county hospital testified that on 4/10/2022 she filled a p3 form for a patient; Samuel Omabere who had been physically assaulted. She observed no marks, no tears or stains on his clothing. On physical examination she noticed tenderness on the skull around the forehead, an injury caused by a blunt object that did not cause breach of the skin and a scratch mark on the knuckle. She testified on giving him paracetamol and tetanus. The p3 form was produced as p. exhibit 2. Upon cross examination she confirmed she only took bio-data of the patient and that she did not have knowledge of the child being treated in another facility.
7. PW4 No. 239817 PC Achoka Vincent of the Anti-crime office at
Kisumu central testified on being the arresting officer who after being led by the complainant’s mother and after she positively identified the accused, arrested the accused in her office in Alpha house. She was accused of assault to a teenager.
8. PW5 No. 110722 PC Kimombo Christine at the Kisumu Central gender desk testified that on 4/10/2022 at about 0330hrs a lady by the name Winnie Ogola went to her office with an OB number and a medical report and stated that her child, Samuel Omabere aged 11 years had been assaulted by Teresa Adhiambo Ounya. The complainant the narrated the ordeal to her and she the issued him with a p3 form for filling at Migosi hospital On cross examination, she stated that she was the investigating officer. Further that the complainant’s mother made the first report and narrated the ordeal followed by the child who also gave his own narrative and stated that the woman had assaulted him when he inquired from her as to why she was taking away food from the fridge. This witness stated that the alleged assault happened when the minor was with the father and when she talked to the latter he declined to record a statement on grounds that the assault was a family issue. One Janet Onsogo who was the father’s sister also declined to record a statement.
9. Upon being placed on her defence, the Respondent gave a sworn
statement while still denying the charge, stated that on the day of the incident, she had gone to look for her husband with her one year old child but only found her step-son, the complainant. She stated that when she called him at around 7:30pm and he stated he was still held up and since she could not wait, she went to the fridge and took some milk and meat and told him he was leaving. She stated she had lived with the complainant in that house and had been taking care of them for six years and had no reason to beat the child.
10. The trial court evaluated the evidence presented by both sides found the Respondent not guilty of the offense of assault stating the evidence by the 11 year old boy was not corroborated and the prosecution did not prove beyond reasonable doubt that the act of assault happened causing bodily harm.
C. Appeal:
11. The Appellant, being aggrieved by the acquitting of the accused, filed the appeal on the following grounds:-
i. The trial court erred in law and fact by failing to find that the ingredients of the offense of assault had been proved by the well corroborated, truthful and consistent evidence of the prosecution witnesses.
ii. The learned trial magistrate erred in law and fact by disregarding the complainant’s testimony.
iii. The learned trial magistrate erred in law and fact by failing to make a finding that it is the Respondent that injured the complainant.
iv. The learned magistrate erred in law and fact in failing to find that the prosecution proved their case beyond reasonable doubt.
v. The trial court erred in acquitting the Respondent on the ground that the evidence of the complainant required corroboration.
vi. The learned magistrate erred in law and fact by acquitting the Respondent on the said offence when the evidence was sufficient and corroborated to warrant a conviction.
vii. The judgement of the trial court was bad in law and against the weight of the evidence since defence did not lay a proper defence as required by law
D. Submissions:
12. The Appellant submits that the overwhelming weight of the well- corroborated evidence presented by the prosecution and the truthful and credible testimony of the complainant and witnesses establishes the Respondent’s guilt beyond reasonable doubt and casts no contradiction together with the fact that the defence failed to raise a proper defence or cast reasonable doubt proves that the acquitting of the Respondent may have resulted in a miscarriage of justice.
13. The Respondent did not file any submissions.
E. Analysis and Determination
14. It is the duty of the High Court as the first appellate court to re-evaluate, re-analyze and re-scrutinize the evidence presented in the trial court so as to arrive at its independent decision whether or not to uphold acquittal of the Respondent. In reaching it’s determination, this court is required to put in mind the fact that it never saw or heard the witnesses as they testified and therefore cannot be expected to make any decision as to the demeanour of the witnesses. The duty of the first Appellant court were set out by the Court of Appeal in Kiilu and another v Republic [2005] 1KLR 174 where it was stated that:
“An Appellant on a first appeal is entitled to expect the evidence in its entirety to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
15. Upon re-evaluation, re-analysis and re-scrutiny of the trial court’s record, the memorandum of appeal and the submissions of the Appellant, the main issues for determination are:-
i. Whether the offence of assault had been proven.
ii. Whether the complainant’s testimony ought to have been disregarded.
iii. Whether it is the Respondent that injured the complainant.
1. Whether the offence of assault had been proven:
For the Appellant, it is submitted that all the elements of the crime of assault as defined in the case of William Kiprotich Cheruiyot v Republic [2021] e KLR were proven beyond reasonable doubt. In that decision, the ingredients were identified to be, assaulting the complainant and occasioning bodily harm. It was underscored that PW1 narrated how he was beaten and injured by the Respondent, and reported to the father, which injuries were corroborated by the clinical officer, PW3 as comprising of the tenderness of the skull and scratch mark on the knuckle.
2. On whether the assault occasioned actual bodily harm, the three words used in the ordinary course and speech demand nor receive no elaboration and should not receive any. Harm is a synonym for injury. Section 4 of the Penal Code states that actual indicates that the injury need not to be permanent and should not be so trivial as to be wholly insignificant. In R v Chan Fook [1994] 2 All ER 557 defines bodily as must only mean the physical human body as opposed to other attributes like reputation or soul. In the testimony of PW3, a clinical officer who examined the complainant stated that there in notable tenderness of the skull around the forehead and a scratch on the knuckle. She assessed the injuries as a product of physical assault. The evidence was never meaningfully challenged or shaken even upon cross examination with the consequence that no reasonable doubt is evident from the record as to the nature of the injury inflicted.
3. The court therefore finds that the offence of assault causing actual bodily harm was proved by the Appellant beyond reasonable doubt as against the Respondent.
4. Whether the complainant’s testimony ought to have been disregarded.
The trial court disregarded PW1’s testimony on the grounds that they were of tender years and their evidence needed corroboration. Section 124 of the Evidence Act states that an accused person shall not be liable to be convicted on the evidence of a child of tender age unless such evidence is corroborated by other material evidence in support thereof implicating him. In determining this appeal, it is crucial for this court to decide whether or not the complainant was of “tender age” If so, this court has to also decide whether or not the complainant’s evidence was corroborated in a material particular as to implicate the Respondent in the offence. The learned magistrate found that the complainant understood the meaning of oath and allowed him to give evidence on oath as he understood his obligation to only speak the truth. The complainant was aged about 12 years. Section 2 of the Children’s Act defines a child as an individual who has not attained the age of eighteen years and a child of tender age as one who has not attained the age of 10 years. According to The Oxford dictionary ‘tender age’ is said to be one who is immature. Taking the two definitions together, a child of tender age seems to be one who is immature and incapable of being responsible for own actions. The Penal Code under section 14(1) highlights that that all children under the age of eight years are said to be immature and not criminally responsible for any acts or omissions.
5. In Njoki v Republic [1987] eKLR, the High Court in Nairobi pronounced itself on who a child of tender years is as follows.
“…Persons highlighted in section 14(1) of the Penal Code are said to be children of tender years. It is therefore our view that section 124 of the Evidence Act only applies to children under the age of 8 years upon whose uncorroborated evidence no conviction can be based. Other considerations ought to be applicable to children who are not ‘tender years”.
In the case before this court, the child is aged about 12 years, not of ‘tender years’ but whose evidence required corroboration as a matter of law, however he was not above 14 years thus his evidence required corroboration as a matter of practice. The complainant claimed that he had been hit by the Respondent on the head and the hand. PW2, Winnie Ogolla, the mother to the complainant testified that Janet Onsongo, the child’s aunt, notified her that the brother told her there was a woman who had beat her child. PW3, Millicent Atieno Ndai who worked at Migosi sub-county hospital where the child was taken by his mother for treatment physically examined. The outpatient hospital card given to them Pmfi1verifies the visit. The boy and noticed tenderness of the skull and scratch mark on the knuckle. She also filled a p3 - Pmfi2 on that day to confirm this. These exhibits co-align with the witness’ statement on where he was injured. The fact that the court conducted a voir dire examination on the witness is valid ground for the court to admit his statement. In the case of Gamaldene Abdi Abdiraham and another v Republic [2013] eKLR, the High Court in Garissa set aside a conviction and sentence of the Appellant on account of failure on the part of the trial magistrate to conduct a voire dire examination of the complainant who aged 13 years at the time she gave evidence.
It is therefore the finding of the court that the complainant’s testimony ought not to have been disregarded as the reasons were not compelling enough and yet it was consistent, and corroborated by other evidence.
6. Whether it is the Respondent that injured the complainant.
The complainant testified that he was at home alone doing his homework when the Respondent came in took food and beat him. The Respondent did not deny going to the house however she alleges that she did not beat the child and had no reason to beat the child. The complainant does not state the reasons he presumed the Respondent had to beat him. She states that she lived in that house with the complainant and had been taking care of them for six years. It is expected that the child would inform her of his injuries had he been hurt by anything before her arrival. The child reported his injuries to his father who arrived 30 minutes later. It is note able that there is no stated contact by the child with any other person before the father came back home and reported the matter to him. The court is led to believe that it was the Respondent.
F. Conclusion and orders:
16. The court has considered the nature, the manner of commissioning of the offence and the principle of sentencing. Ultimately, I find that the appeal has merit and is hereby allowed. According to Section 251 of the Penal Code the penalty given is imprisonment for five years and according to the Sentencing and Policy guidelines where the Respondent is a mother of a child about 3 years old, the court hereby sentences the Respondent to three years imprisonment.
Dated, signed and delivered at Kisumu on this 31st Day of October 2024.