[1] This appeal arises from the Judgment and Order of acquittal made by the trial magistrate, Hon. B. W. Murangasia, Resident Magistrate, on 21 st August 2024 in Ndhiwa MCCR No. E209 of 2023 . In that matter, the respondent had been charged with the offence of assault, causing actual bodily harm, contrary to Section 251 of the Penal Code. It was alleged that on the 19 th June 2023 at around 1830 hours at Kumungu Subloction in Kobodo Division in Ndhiwa Sub County, within Homa Bay County in the Republic of Kenya, he unlawfully assaulted Johnson Nyakundi Nyakundi thereby occasioning him actual bodily harm.
[2] The record of the lower court shows that respondent denied the charge, was taken through the trial process in which the Prosecution called 4 witnesses. On being placed on his defence, the respondent also testified on his own behalf. The learned magistrate thereafter considered the evidence presented and found the respondent not guilty. Accordingly, the respondent was acquitted of the charge pursuant to Section 215 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
[3] Being aggrieved by the lower court’s judgment and order the appellant filed this appeal on the following grounds:
[a] That the learned magistrate erred in law and fact in acquitting the respondent yet a prima facie case had been established against him.
[b] The learned magistrate misdirected himself by applying the wrong principles of the law thereby arriving at a wrong decision.
[c] That the learned magistrate erred in law and fact by disregarding the evidence of an eye witness thereby occasioning an injustice to the appellant by arriving at a wrong decision.
[d] That the learned trial magistrate erred in law by acquitting the respondent yet he was supposed to be convicted based on the concrete evidence that was adduced against him.
[e] That the learned trial magistrate erred in law and fact in failing to observe that the ingredients of the charge of assault as envisaged in Section 251 of the Penal Code were met in the case.
[4] Accordingly, the appellant prayed that the respondent’s acquittal be set aside and a custodial sentence be imposed on the respondent.
[5] The appeal was urged by way of written submissions. The appellant reiterated the evidence adduced before the lower court and pointed out that the complainant had gone to visit Enos Odhiambo who is a brother to the respondent; and that the respondent also went there and on finding the complainant at his brother’s place, started assaulting him with kicks and blows without saying a word. The respondent further stated that a passerby, Angeline Akoth (PW2) on hearing the commotion went to the scene and found the respondent beating the complainant. She tried to separate the two in vain. She screamed for help.
[6] The complainant thereafter went to Ndhiwa Sub County Hospital for treatment after which he reported the incident to Kamata Police Post. The matter was handled by PC Isaac Opondo (PW3). He issued the complainant with a P3 Form which was filled by a Clinical Officer, PW4. PW4 formed the opinion that the complainant had been assaulted and that he had suffered harm. Accordingly, the appellant impugned the decision of the lower court for failing to find that the elements of the offence of assault were proved beyond reasonable doubt. The appellant further submitted that failure to call Enos Odhiambo at whose home the incident took place did not have any adverse effect on the Prosecution case because Enos opted to remain neutral. Hence, the appellant invited the Court to find that the respondent was the aggressor and that he ought to have been convicted and punished for the offence of assault.
[7] The respondent relied on his written submissions dated 1 st December 2025. He referred to the cases of Ndaa v Republic [1985] eKLR, Vicky Chelangat v Republic [2022] eKLR and Argut v Republic [2023] KEHC 2690 (KLR) in which the key elements of the offence of assault were discussed. The respondent asserted that this was a fight between him and the complainant and therefore the learned magistrate came to the correct conclusion that there was no evidence to prove that he was the aggressor. It was further the submission of the respondent that the burden of proof was on the Prosecution and that having failed to discharge that burden, the learned magistrate had no option but to acquit him. In this regard, the respondent relied on Miller v Minister of Pensions [1947] 2 AllER 372 at 373 and Bhatt v Republic [1957] EA 332 at 334 and urged the Court to find that the appeal is utterly lacking in merit.
[8] This is a first appeal. Therefore, it is expected of this Court to subject the evidence presented before the lower court to a fresh analysis and evaluation. In Okeno v Republic [1972] EA 32 by the Court of Appeal for East Africa made this point thus:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole 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 conclusion; it must make its own findings and draw its own 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..."
[9] The complainant testified before the lower court on the 11 th September 2023. He stated that he had gone to visit Enos Odhiambo ; and that the respondent emerged and started assaulting him for no apparent reason. He mentioned that Angeline Akoth (PW2) who was from the posho mill tried in vain to intervene and separate them. He added that he did not scream or ask for help.
[10] Angeline Akoth PW2, told the lower court that she was coming from the posho mill and found the complainant and the respondent fighting within the homestead of Enos . PW2 pointed out that Enos was present and was just watching as the two fought each other. She further stated that she tried to separate the two but failed; and that she resorted to screaming for help and that villagers respondent and went to the scene and managed to stop the fight.
[11] PC Isaac Opondo (PW3) confirmed that the complainant reported a case of assault to their station and that he was assigned to investigate the same. He testified that he issued the complainant with a P3 Form which was filed and returned. He proceeded to record statements from the witnesses and thereafter arrested and charged the respondent with the offence of assault.
[12] PW4 , Irene Bolo , is a Clinical Officer who was then attached to Ndhiwa Sub-County Hospital. She confirmed that she examined the complainant and filled his P3 Form on the 21 st June 2023 following an incident of assault that occurred on the 19 th June 2023. She assessed the degree of injury as “Harm”. She produced the P3 Form as the Prosecution’s Exhibit 2 before the lower court.
[13] On being placed on his defence, the complainant stated on oath that the complainant is his uncle; and that on the 19 th June 2023 at 1830 hours his brother Enos called him to his home. He went there and found him with the complainant. He explained that he had a dispute with the complainant stemming from a report that the complainant’s son had assaulted his son. His brother brought up the issue with a view of making peace between them. It was further the evidence of the respondent that the complainant was carrying a wooden stick which he proceeded to hit him with, accusing him of disrespect. He further stated that he asked his brother Enos whether he had called him to be beaten or to settle the dispute. He concluded his evidence by stating that he merely reacted by defending himself from assault at the hands of the complainant and had no prior intention of harming the complainant.
[14] I have considered the evidence adduced before the lower court, the Grounds of Appeal raised by the two appellants as well as the written submissions filed herein. The offence was laid under Section 251 of the Penal Code , and its elements were well set out by the learned trial magistrate in his judgment dated 22 nd May 2024 to be actual bodily harm to the complainant and identification of the culprit. (see Ndaa v Republic [1985] eKLR).
[15] Upon a re-evaluation of the evidence presented, there is no gainsaying the lower court had to make a determination as to who, between the complainant and the respondent was telling the truth. Enos, who was the only witness was not called to testify. There is no doubt that Enos was a crucial witness, granted the disparate positions taken by PW1 and the respondent. It is now trite that where the Prosecution fails to call a crucial witness, the court is at liberty to presume that had the witness been called, his evidence would have been adverse to the Prosecution. Indeed, in the case of Bukenya & Others v Uganda [1972] EA 549, it was held that:
“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
[16] The principle was restated by the Court of Appeal in Sahali Omar v Republic [2017] eKLR thus:
“The principle used to determine the consequences of failure to call witnesses was succinctly stated in Bukenya & Others v Uganda (1972 E.A; where the court held that:
i. “The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
ii. That court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case.
iii. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
[17] The evidence of PW2 did not help resolve this crucial issue because by the time she arrived at the scene the two were already engaged in a fight. She was not in a position to state who between the complainant and the respondent was the aggressor.
[18] It is therefore my finding that, on the evidence presented before the lower court, the learned magistrate cannot be faulted for finding that the charge of assault had not been proved beyond reasonable doubt and for acquitting the respondent.
[19] In the result, it is my finding that the appeal lacks merit. The same is hereby dismissed.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4 TH DAY OF JUNE 2026
[2] The record of the lower court shows that respondent denied the charge, was taken through the trial process in which the Prosecution called 4 witnesses. On being placed on his defence, the respondent also testified on his own behalf. The learned magistrate thereafter considered the evidence presented and found the respondent not guilty. Accordingly, the respondent was acquitted of the charge pursuant to Section 215 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
[3] Being aggrieved by the lower court’s judgment and order the appellant filed this appeal on the following grounds:
[a] That the learned magistrate erred in law and fact in acquitting the respondent yet a prima facie case had been established against him.
[b] The learned magistrate misdirected himself by applying the wrong principles of the law thereby arriving at a wrong decision.
[c] That the learned magistrate erred in law and fact by disregarding the evidence of an eye witness thereby occasioning an injustice to the appellant by arriving at a wrong decision.
[d] That the learned trial magistrate erred in law by acquitting the respondent yet he was supposed to be convicted based on the concrete evidence that was adduced against him.
[e] That the learned trial magistrate erred in law and fact in failing to observe that the ingredients of the charge of assault as envisaged in Section 251 of the Penal Code were met in the case.
[4] Accordingly, the appellant prayed that the respondent’s acquittal be set aside and a custodial sentence be imposed on the respondent.
[5] The appeal was urged by way of written submissions. The appellant reiterated the evidence adduced before the lower court and pointed out that the complainant had gone to visit Enos Odhiambo who is a brother to the respondent; and that the respondent also went there and on finding the complainant at his brother’s place, started assaulting him with kicks and blows without saying a word. The respondent further stated that a passerby, Angeline Akoth (PW2) on hearing the commotion went to the scene and found the respondent beating the complainant. She tried to separate the two in vain. She screamed for help.
[6] The complainant thereafter went to Ndhiwa Sub County Hospital for treatment after which he reported the incident to Kamata Police Post. The matter was handled by PC Isaac Opondo (PW3). He issued the complainant with a P3 Form which was filled by a Clinical Officer, PW4. PW4 formed the opinion that the complainant had been assaulted and that he had suffered harm. Accordingly, the appellant impugned the decision of the lower court for failing to find that the elements of the offence of assault were proved beyond reasonable doubt. The appellant further submitted that failure to call Enos Odhiambo at whose home the incident took place did not have any adverse effect on the Prosecution case because Enos opted to remain neutral. Hence, the appellant invited the Court to find that the respondent was the aggressor and that he ought to have been convicted and punished for the offence of assault.
[7] The respondent relied on his written submissions dated 1 st December 2025. He referred to the cases of Ndaa v Republic [1985] eKLR, Vicky Chelangat v Republic [2022] eKLR and Argut v Republic [2023] KEHC 2690 (KLR) in which the key elements of the offence of assault were discussed. The respondent asserted that this was a fight between him and the complainant and therefore the learned magistrate came to the correct conclusion that there was no evidence to prove that he was the aggressor. It was further the submission of the respondent that the burden of proof was on the Prosecution and that having failed to discharge that burden, the learned magistrate had no option but to acquit him. In this regard, the respondent relied on Miller v Minister of Pensions [1947] 2 AllER 372 at 373 and Bhatt v Republic [1957] EA 332 at 334 and urged the Court to find that the appeal is utterly lacking in merit.
[8] This is a first appeal. Therefore, it is expected of this Court to subject the evidence presented before the lower court to a fresh analysis and evaluation. In Okeno v Republic [1972] EA 32 by the Court of Appeal for East Africa made this point thus:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole 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 conclusion; it must make its own findings and draw its own 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..."
[9] The complainant testified before the lower court on the 11 th September 2023. He stated that he had gone to visit Enos Odhiambo ; and that the respondent emerged and started assaulting him for no apparent reason. He mentioned that Angeline Akoth (PW2) who was from the posho mill tried in vain to intervene and separate them. He added that he did not scream or ask for help.
[10] Angeline Akoth PW2, told the lower court that she was coming from the posho mill and found the complainant and the respondent fighting within the homestead of Enos . PW2 pointed out that Enos was present and was just watching as the two fought each other. She further stated that she tried to separate the two but failed; and that she resorted to screaming for help and that villagers respondent and went to the scene and managed to stop the fight.
[11] PC Isaac Opondo (PW3) confirmed that the complainant reported a case of assault to their station and that he was assigned to investigate the same. He testified that he issued the complainant with a P3 Form which was filed and returned. He proceeded to record statements from the witnesses and thereafter arrested and charged the respondent with the offence of assault.
[12] PW4 , Irene Bolo , is a Clinical Officer who was then attached to Ndhiwa Sub-County Hospital. She confirmed that she examined the complainant and filled his P3 Form on the 21 st June 2023 following an incident of assault that occurred on the 19 th June 2023. She assessed the degree of injury as “Harm”. She produced the P3 Form as the Prosecution’s Exhibit 2 before the lower court.
[13] On being placed on his defence, the complainant stated on oath that the complainant is his uncle; and that on the 19 th June 2023 at 1830 hours his brother Enos called him to his home. He went there and found him with the complainant. He explained that he had a dispute with the complainant stemming from a report that the complainant’s son had assaulted his son. His brother brought up the issue with a view of making peace between them. It was further the evidence of the respondent that the complainant was carrying a wooden stick which he proceeded to hit him with, accusing him of disrespect. He further stated that he asked his brother Enos whether he had called him to be beaten or to settle the dispute. He concluded his evidence by stating that he merely reacted by defending himself from assault at the hands of the complainant and had no prior intention of harming the complainant.
[14] I have considered the evidence adduced before the lower court, the Grounds of Appeal raised by the two appellants as well as the written submissions filed herein. The offence was laid under Section 251 of the Penal Code , and its elements were well set out by the learned trial magistrate in his judgment dated 22 nd May 2024 to be actual bodily harm to the complainant and identification of the culprit. (see Ndaa v Republic [1985] eKLR).
[15] Upon a re-evaluation of the evidence presented, there is no gainsaying the lower court had to make a determination as to who, between the complainant and the respondent was telling the truth. Enos, who was the only witness was not called to testify. There is no doubt that Enos was a crucial witness, granted the disparate positions taken by PW1 and the respondent. It is now trite that where the Prosecution fails to call a crucial witness, the court is at liberty to presume that had the witness been called, his evidence would have been adverse to the Prosecution. Indeed, in the case of Bukenya & Others v Uganda [1972] EA 549, it was held that:
“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
[16] The principle was restated by the Court of Appeal in Sahali Omar v Republic [2017] eKLR thus:
“The principle used to determine the consequences of failure to call witnesses was succinctly stated in Bukenya & Others v Uganda (1972 E.A; where the court held that:
i. “The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
ii. That court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case.
iii. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
[17] The evidence of PW2 did not help resolve this crucial issue because by the time she arrived at the scene the two were already engaged in a fight. She was not in a position to state who between the complainant and the respondent was the aggressor.
[18] It is therefore my finding that, on the evidence presented before the lower court, the learned magistrate cannot be faulted for finding that the charge of assault had not been proved beyond reasonable doubt and for acquitting the respondent.
[19] In the result, it is my finding that the appeal lacks merit. The same is hereby dismissed.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4 TH DAY OF JUNE 2026