(Being an appeal from the original conviction and sentence in Sexual Offence Case No. E665 of 2021 at Kangema Law Courts before Hon. I GICHOBI (PM)

1. INTRODUCTION
2. The appellant and 3 others were charged with the offence of Assault causing bodily harm contrary to section 251 of the Penal Code.
3. The particulars are that on 20th September 2021 at Githiga Sublocation in Kanyenyaini Location, Kangema Subcounty within Murang'a County, Onesmus Waiguru Kaboyo, Stephen Kimani Kaboyo, Samuel Kuria Kaboyo (Appellant) and Joseph Muhika Kaboyo willfully and unlawfully assaulted Samuel Njeru thereby occasioning him actual bodily harm.
4. The trial commenced on 24th September 2021 and the prosecution called a total of seven (7) witnesses in support of the said charges. At the close of the prosecution case, the court found that a prima facie case had been established against the 3'd accused person (Appellant) and thus placed him on his defence. The other accused persons were acquitted under Section 210 of the CPC for having been remotely mentioned by the witnesses and their participation in the Assault was not established.
5. The appellant gave sworn evidence in defence and also called 2 witnesses.
6. At the end, the court found that the offence of Assault had been proved beyond reasonable doubt and the appellant was convicted and sentenced to pay a fine of Ksh.15,000 and in default to serve five months imprisonment.
7. The appellant was aggrieved by the conviction and sentence, has lodged this appeal.
8. GROUNDS OF APPEAL

1.  That the learned magistrate erred in finding that the appellant had been adversely mentioned by the prosecution witnesses.

ii. That the learned magistrate did not convict the accused person as per the

evidence adduced since there were major contradictions on the evidence of prosecution witnesses.

1. PRAYERS

The appellant prays that this Appeal be allowed and the conviction be quashed.

D.Duty of Court at First Appeal:

1. This being a first appeal, the duty of the court was well stated in Okeno v Republic [1972) EA 32 thus:

"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shanti/al M. Ruwala vs. R. (1957) EA. 570). 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 finding 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, see Peters vs. Sunday Post [1958] E.A 424."

Proof of offence to required standard

1. The offence of defilement is rooted on three main ingredients being the:
   1. Assault
   2. Actual bodily harm
   3. Intention to assault

In the case of Alex Kinvua Murakaru v Republic (20151 eKLR the court in defining actual bodily harm held:

"... actual bodily injury is any physical injury to a person (which is not permanent), or psychiatric injury that is not merely emotions, fear or panic. To make out the offence, the prosecution must show that there has been an assault, and that the assault has resulted in actual bodly i(v harm. There must be an intention to assault (mens rea) and the assault must have taken place (actus reas)."

Assault

9.The complainant stated that the appellant was the first assailant and he was  a person known to him. The assault happened at around 5pm which was during the day. Other assailants joined later on.

1. There is corroborative evidence from several prosecution eye witnesses (PW2, PW3 and PW4) that the appellant and other persons assaulted the complainant on the stated date. The magistrate also noted that the complainant had indicated that the Appellant was the assailant at the Police station when taking Occurrence Book number.

        . Actual bodily harm

1. There is medical evidence through P3 forms and Treatment notes that the complainant was injured using blows which were blunt objects and the Doctor classified the injuries as harm. The said documents were produced as exhibits 1 and 2. The injuries were bruise on the face and nose bleeding.

iii. Intention to assault

1. It's clear that the intention to assault was that the appellant was furious for being denied church keys by the complainant upon demand. It was said that the complainant was the church's caretaker and elder. He told the appellant, who was a member of the church, to wait for COVID protocal measures to be undertaken before they access to the church. After telling him so, the appellant prepared to attack him and finally attacked him. Specifically, the appellant removed his watch and the complainant's mask and started throwing blows on his head.
2. The identification of the appellant by the complainant was that of recognition as he was well known to him and the incidence happened during the day. The complainant stated that they are neighbors and come from the same clan. They also worship in the same church.

CONTRADICTIONS

1. On the issue of contradiction of the number of people that assaulted the complainant,  I note that he had indicated in his statement that he was first assaulted by the appellant and later on by other people (Accused 1, 2,3 and their father). The allegation that the P3 form indicated that he was assaulted by a known person instead of known persons does not change the fact that he was assaulted by the appellant and other persons.
2. On the issue of contradictory dates of OB number on the P3 form, it came out clear from Pw5 - Doctor that he examined the complainant on 20th September 2021 at Kangema Sub-County Hospital and filled Treatment notes and later filled the P3 form on 22nd September 2021 at Murang'a Level 5 Hospital. The doctor owned the Treatment notes and the P3 form having filled them although at different hospitals which issue was sufficiently addressed by the complainant and the doctor.
3. Still on the same issue, it was noted that there was an error of OB Number in the P3 form but the same was explained by the doctor and the Investigating Officer during exam in chief and cross-examination. The doctor confirmed that he does not fill the said part but police officers do.
4. On the other hand, the Investigating Officer confirmed that the date of the Assault as 20/9/2021 as per the OB number and the indicated date of 3/9/2021 on the P3 form was erroneous. All in all, the Investigating Officer confirmed that OB number 3/20/9/201 and 24/23/9/201 were all related to the subject case. The first one was the initial complaint made at Githiga Police post while the second related to the arrest of the accused at Kangema Police station. The learned magistrate made the said observations in his judgment and also noted that the defence did not produce the two controversial OB numbers to prove that one or both did not relate to the accused person.
5. Whether or not the date of commission of the offence as indicated in the P3 form was erroneous, it does change the fact that the prosecution was able to prove that the appellant assaulted the complainant on 20'h September 2021. The prosecution was able to prove all ingredients of the subject offence by the evidence of eye witnesses and medical evidence.
6. On the issue of lack of mention of the assailants by PWl-complainant, PW2, PW3 and PW4 in their statements, the same is not fatal since a statement only acts as a guide and the witnesses are not restricted to testify on the statement. This position has been addressed in several precedents. In exam in chief, the said witness testified and filled in the gaps.
7. On the issue of contradictions as to the injuries sustained, the court finds  that there were no contradictions to warrant doubt and the case was proved beyond reasonable doubt. The doctor stated that the complainant came complaining of body pains also had soft tissue injuries and was nose bleeding. This is constituent with what the complainant stated in his testimony. The other eye witnesses saw the complainant being assaulted in the face and other parts of the body which is consistent with what the doctor observed.
8. On the issue of blood-stained clothes that the complainant had worn, upon being shown the same, the complainant denied a shirt that was shown to him in court claiming that it was not the shirt that he had worn on the date of the incidence. The mix up could have been done at the police station. Notably, having been disputed, the said clothes were not produced as exhibits hence the same was not a consideration in making the judgment. Lack of production of the said clothes is not fatal to the case.
9. The learned magistrate considered  the accused person's alibi given during defence stage and corroborated by DW2. The alibi of not being in locus quo was that the appellant was at Kisii county and not at Githiga in Murang'a county at the date of the incident.The magistrate observed that the said alibi was brought at the tail end of the defence case hence the conclusion that it was a mere afterthought. The magistrate reiterated that higher courts have stated that Alibi ought to have been brought at the earliest opportune time to enable the prosecution investigate and ascertain its veracity.
10. At the end, the court noted although the defence was brought at the end of the case, the alibi had been rebutted by the evidence of prosecution witnesses who identified the accused person at the scene of crime and explained his role in the

commission of the offence. The said witnesses pointed to the accused/appellant as the main assailant. The learned magistrate observed that PW2, PW3 and PW3 saw the accused assault the complainant while DW3 alleges not to have seen him but had seen the said witnesses. Due to the above, the court noted that DW3 was not honest and which led to the disbelieve of the alibi of locus quo.

1. After careful consideration, the learned magistrate sentenced the appellant to a fine of Ksh. 15,000 and in default serve 5 months imprisonment.
2. CONCLUSION
3. The court finds that the conviction and sentence passed was appropriate and the learned magistrate made no error hence the court not disturb the lower court's decision.
4. The appellant has failed to give sufficient grounds of appeal to warrant quashing of the conviction and setting side of the sentence by the trial court and the appeal is dismissed in its entirety

It is so ordered.

Dated , signed and delivered virtually this ___30TH_____day of July 2024

                                                                                       Wendy Kagendo

                                                                                        Judge

PRESENT

FOR THE APPELLANT   ;MR KAGWE

FOR THE RESPONDENT; WAWERU

BEBORA COURT ASSISTANT