( Being an appeal against the Conviction and Sentence of Hon. Stephen Jalang’o – Senior Principal Magistrate passed on the 18 th February, 2025 in Tawa Magistrates Court Criminal Case No. E383 of 2021 )
JUDGMENT.
Introduction
1. This Appeal arises from the conviction and imprisonment of the Appellant in Tawa Magistrates Court Criminal Case No. E383 of 3032 wherein the Appellant in the first count was charged with the offence of committing an indecent act with an adult contrary to Section 11 (a) of the Sexual offences act No. 3 of 2005 . The particulars are that the Appellant on the 27 th day of October, 2021 at around 0900hr at Ilarll market in Mbooni West Sub – County within Makueni County intentionally touched the breasts of Caroline Mueni Kimeu using his hands against her will.
2. The Appellant was further charged with the offence of Assault causing actual bodily harm contrary to Section 251 of the Penal Code . The particulars are that the Appellant on the 27 th day of October, 2021 in Tolimaryi location Mbooni Sub County within Makueni County assaulted Caroline Mueni Kimeu thereby occasioning actual bodily harm at the shoulder.
3. The Appellant was also charged with a third count with the offence of creating disturbance in a manner likely to cause a breach of peace contrary to Section 95(1) (b) of the Penal Code . The particulars are that the Appellant on the 27 th day of October, 2021 at around 09:00 hours at Ilarll market in Mbooni West Sub – County within Makueni County created disturbance in a manner likely to cause a breach of peace by chasing Caroline Kimeu from her M-Pesa shop and locking the shop.
4. The Appellant pleaded not guilty to the charges and thereafter the case proceeded to trial wherein the Prosecution called a total of 5 Witnesses. At the close of the prosecution case, the Court found that the Appellant had a case to answer in respect to count (ii) and Count (iii) and he was placed on his defence where he opted to give sworn evidence and called no witnesses.
5. By a judgement dated and delivered on the 18 th day of February 2025, the Appellant was convicted of the 2 nd count and sentenced to serve 5 years. He was also convicted of the 3 rd Count and sentence to serve 2 years and both sentences were to run concurrently.
6. Being dissatisfied with the decision, the Appellant filed this Appeal vide a Petition dated the 12 th day of March, 2026 in which he relied on the following Five (5) grounds reproduced verbatim
1. That the learned trial magistrate erred in matters of law and facts by failing to consider that the prosecution did not prove its case to beyond reasonable doubt.
2. That the learned trial magistrate erred in matters of law and facts by failing to consider the contradictions and inconsistencies that did not warrant conviction.
3. That the learned trial magistrate erred in matters of law and facts by failing to consider that the prosecution witnesses were of questionable integrity.
4. That the learned trial magistrate erred in matters of law and facts by failing to consider my cogent defence and mitigation.
5. That I may be supplied with the trial court proceedings for more amended grounds of Appeal.
7. It was his prayer that the appeal succeeds in its entirety, the conviction be quashed, sentence set aside and the Appellant be set at liberty.
Prosecution evidence before the trial court.
8. PW1 testified that she operates a business and on the 27 th October, 2021 she was in her house at around 6.00 a.m and had prepared the kids for school and was back to her normal chores when she was called out by a customer who was asking for pull carts. She served him and was paid Kshs. 200/= and she went back to her house. She testified that while in her house, a person who was well known to her being his brother in law and the Appellant herein intruded into her house and asked for the said Kshs. 200/= but she refused to give it to him. She testified that the Appellant became violent and assaulted her and pulled on her left breasts and hit her on the back using his hands. PW1 testified that since she was alone in the house, she picked her phone and called a neighbor who came to her rescue and found her on the floor and took her to the Hospital. At this point the Appellant had already left the house. She further testified that it was the neighbour, one Isaac Kimeu Mutuku who took the Appellant to the Police station. She testified that she was issued with a P3 Form and which she went with it to the Police station and the Appellant was eventually arrested but at the time he had also closed PW1’s house.
9. On cross examination she testified that no one was present when she was assaulted and she was only found lying on the ground after calling Isaac and Chris. She testified that she still goes to the clinic for treatment for the Injuries she sustained on her breast and that she did not fabricate the charges due to her marital issues.
10. PW2 testified that on the date of the incident, PW1 called him asking for rescue and when he went to the shop belonging to PW1 where he found the Appellant on PW1’s shop and PW1 was on the ground and the Appellant was threatening to kill PW1. He testified that the Appellant was at the entrance of the shop and in intervention he took hold of the Appellant and escorted him to Ilani Police station. He testified that he later learnt the issue was Kshs. 200/= for the pull cart business and he also took the Complainant to the Hospital where she was issued with a P3 Form and the Appellant was later arrested.
11. On cross examination he testified that he arrived at the scene and found PW1 on the floor but he did not see the Appellant assaulting her but he was there in the shop.
12. PW3 testified that he got a report that the Complainant’s shop had been closed and he advised the 3 individuals who reported to bring the victim to the police station which she later did and she was issued with a P3 form. His evidence was that the Complainant had stated that she had been assaulted in the breasts and that her shop had been closed. PW3 testified that he went to the scene and found that the shop had been closed and a later time he proceeded and booked the Appellant.
13. In cross examination he stated that the Appellant was escorted to the station by 3 people where he re-arrested him. He further stated that the Appellant touched the complainant’s breast by pushing him to the ground. However, there were no other witness who could confirm that indeed that had happened. However, he confirmed that he found the Complainant’s shop locked but the additional padlocks belonged to the Appellant as he was the one who unlocked them thereafter.
14. PW4 testified that he also went to the scene together with PW3 where they found the shop belonging to PW1 had been locked with 3 padlocks and advised the complainant to go to the Hospital and he issued her with a P3 Form which was filled by a doctor from Mbooni Sub – County Hospital. On cross examination he testified that three people reported the case of assault to the Police station and had frog matched the Appellant to the station but he was not aware whether the 3 men assaulted the Appellant. He testified that he issued the Appellant with a P3 Form but has never taken action against the three individuals for assault.
15. PW5 the clinical officer testified that he had a P3 Form and treatment notes for PW1. He testified that PW1 had swollen left breast tissue, tender right scapular aspect, no tears/bruises and he made a diagnosis of soft tissue injuries. On cross examination, he stated the weapon used was blows as per the history of the patient. On re-examination he stated that no allegation of sexual assault had been made at the time of the examination and that the injuries were on her breasts.
Defence Evidence before the trial court
16. The Appellant elected to give sworn evidence. He testified that he had been framed and that PW1 had hired his cart to another person and was paid. He testified that after being paid she refused to hand over the money to him and was eventually paid by officer Nyandoro. He testified it is PW1 who called PW2 who came and attacked him and took him to the police station but he did not assault the Complainant. On cross examination he stated that he was at the shop where he found PW1 outside and demanded for his money and that nobody saw him assaulting PW1.
Submissions by Parties
17. The Appeal was canvassed by way of written submissions wherein the Appellant filed his submissions dated the 15 th day of May, 2026. The Appellant submitted that although the magistrate expressly acquitted him on the first count under Section 210 of the Criminal Procedure Code, and further found no basis to convict on the third count of creating disturbance, the same magistrate nonetheless proceeded to sentence him to five years' imprisonment on the first count and two years on the second, the sentences to run concurrently and that sentencing him on a count already quashed amounts to double jeopardy contrary to Article 50(2)(o) of the Constitution stating that the matter with a predisposition to convict rather than an impartial evaluation of the evidence. He relied on the case of David Mwangirwa v Republic [2017] KECA .
18. He submitted that the prosecution did not prove its case beyond reasonable doubt pointing to material contradictions and inconsistencies among the prosecution witnesses that render them unreliable. He highlights that the complainant's account of where and how the assault occurred shifted materially between her examination-in-chief and cross-examination particularly regarding whether she was found in her house or at an M-Pesa shop.
19. He further notes that PW2, said to be the complainant's cousin, gave a conflicting narrative as to time and place and in cross-examination revealed a pre-existing grudge and prior litigation between himself, the complainant, and the Appellant's family which he stated casted doubts on his impartiality.
20. The Appellant further questioned the reliability of the medical evidence tendered by PW5, submitting that the P3 form and clinical presentation date do not align with the date of the alleged assault and suggests the medical report may relate to unrelated treatment the complainant was receiving. He relies on Biruri v Republic [2025] KECA 375, Philip Nzaka Watu vs Republic [2016] KECA 696, Ndungu Kimanyi vs Republic [1979] KLR 282 .
21. The Appellant contends that the trial court failed to comprehensively consider his sworn defence in which he explained the genesis of the dispute as arising from long-standing family discord with the complainant including a tribunal case, a child maintenance suit and a disagreement over payment for hire of a cart and submits that these facts point to malicious motive rather than a genuine assault.
22. Conclusively, the Appellant urges the Court to find that the sentence imposed on the count on which he had been acquitted was illegal and unsafe and that the conviction and sentence on the assault count were similarly the product of bias and improper motive arising from a family dispute.
23. He prays that this Honourable Court sets aside the sentence and orders of the lower court delivered on 4 th March 2025 declaring the proceedings judgment and sentence null and void quashing the conviction and orders his release in the interest of justice.
24. On the part of the Respondent, they however did file submissions in opposition of the Appeal and conceded that the trial court who took over the matter from the initial court failed to take account that the Appellant had been discharged on count I under section 210 of the CPC. In that regard, their submissions were only in regard to count II. They asked the court to uphold the conviction and sentence imposed by the trial court.
Analysis and Determination
25. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanor of the witnesses ( See Okeno vs. Republic [1972] E.A 32 )
26. The issues for determination are evidently the following;
1) Whether the learned trial court properly convicted the Appellant on Count I.
2) Whether Count 2 was proved beyond reasonable doubt against the Appellant.
3) What should the Court do in respect to count 3 ?
27. On the first issue, the court notes from the ruling delivered on the 13 th day of May, 2024 at the close of the prosecution case, the learned trial magistrate considered the evidence tendered in respect of the three counts. The trial court found that the Appellant had no case to answer on Count I and consequently acquitted him in respect thereof. But upon the matter being heard on defence the Appellant was convicted on count 1 & 11 and not Count III and this meant that the Appellant was thereafter called upon to defend himself only in respect of Counts II and III and not Count 1.
28. The question that therefore arises is whether having found at the close of the prosecution case that the Appellant had no case to answer on Count I and having consequently acquitted him thereon, the trial court could subsequently revisit that count upon consideration of the defence evidence and convict the Appellant.
29. The Court is guided by Section 210 of the Criminal Procedure Code , which provides as follows:
“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him .”
30. The language of Section 210 is mandatory and where the trial court finds at the close of the prosecution case that that no case has been made out sufficiently to require the accused person to make a defence then the court is required to dismiss the case and forthwith acquit the accused person. The consequence is that the particular charge in respect of which the finding is made is brought to an end.
31. This position was considered in Robert Karanja Kamau vs Prosecution [2016] eKLR , where the appellant had been acquitted under Section 210 of the Criminal Procedure Code on several counts and placed on his defence on another count. The trial magistrate subsequently convicted him on the counts on which he had already been acquitted. The High Court held that the magistrate had erred in convicting the appellant on the counts in respect of which he had earlier been acquitted under Section 210. The Court observed that the appellant had correctly been acquitted on those counts and that it was erroneous for the magistrate who subsequently delivered the judgment to convict him on the same counts. The High Court further noted that Section 354(3) of the Criminal Procedure Code empowers the appellate court to correct mistakes made by subordinate courts.
32. The rationale for the foregoing principle is that the finding of no case to answer under Section 210 is not a provisional or interlocutory finding and once the court makes that finding and proceeds to acquit the accused person, there remains no charge upon which the accused can properly be called upon to make a defence meaning the court cannot thereafter cannot proceed to determine it upon the basis of the defence evidence.
33. In the present case, the learned trial magistrate had already determined Count I at the close of the prosecution case. The Appellant was expressly found to have no case to answer and was acquitted on that count and he was thereafter required to defend himself only against Counts II and III meaning there was therefore no lawful basis upon which Count I could subsequently be revived and considered together with the defence case.
34. To this end the conviction on Count I was therefore made in circumstances where there was no longer a pending charge upon which the Appellant could be convicted. The learned trial magistrate thereby fell into error by revisiting a count that had already been determined in the Appellant's favour hence irregular and amounted to an error in the conduct of the trial court.
35. I therefore find that the conviction on Count I cannot stand. The same is hereby quashed and the sentence imposed of 5 years’ imprisonment is hereby set aside
36. On the second issue for determination, it is trite that for the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code the prosecution is required to prove beyond reasonable doubt the essential elements of the offence. Section 251 of the Penal Code provides that:
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
37. From the above the essential elements of the offence which the prosecution was required to establish beyond reasonable doubt are that the Appellant assaulted the complainant and that the said assault occasioned the complainant actual bodily harm meaning that the prosecution was therefore required to establish not only the occurrence of the assault but also a causal connection between the assault and the actual bodily harm suffered by the complainant.
38. The foregoing position has been affirmed in recent decisions of the High Court.
a) In Jepchirchir vs Republic [2024] KEHC 16335 (KLR), at paragraph 21 , the Court, relied on the decision of the Court of Appeal in Ndaa vs Republic [1985] eKLR ,
‘21. the essential elements of the offence of assault causing actual bodily harm are that the accused assaulted the complainant or victim and that the assault occasioned actual bodily harm.
23. the Court further observed that the prosecution must demonstrate that there was an intention to assault, that the assault took place and that it resulted in actual bodily harm.
b) Similarly, in Sunguti v Republic [2025] KEHC 11185 (KLR )
‘14, the Court held that the offence of assault causing actual bodily harm requires proof of two essential elements, namely, that there was an assault against the complainant and that the assault resulted in actual bodily harm. 17. the Court found that the second element was established through medical evidence which documented the injuries sustained by the complainant and classified them as harm. The Court consequently held that the injuries met the threshold of actual bodily harm as they were neither trifling nor transient.
39. Turning to the first element, namely whether the Appellant assaulted the complainant, the prosecution case principally rests on the evidence of PW1. PW1 testified that while she was at her house, the Appellant, whom she knew as her brother-in-law, entered the house and demanded Kshs. 200/= from her. Upon her refusal to give him the money, the Appellant became violent, pulled her on the left breast and hit her on the back using his hands. She further testified that she fell to the ground and, being alone in the house, called PW2 and another neighbour for assistance.
40. PW2 did not witness the actual assault as his evidence was that upon receiving a distress call from PW1, he proceeded to the scene where he found PW1 on the ground and the Appellant at the entrance of the shop. PW2 intervened, restrained the Appellant and subsequently escorted him to Iani Police Station. His evidence therefore corroborates the presence of the Appellant at the scene and the fact that PW1 was found on the ground shortly after she had sought assistance, but does not establish that he saw the Appellant assaulting her.
41. The evidence of PW3 and PW4 similarly places the Appellant and the complainant within the circumstances surrounding the incident. PW3 testified that upon receiving the report, he proceeded to the scene and found the complainant's shop locked. He further testified that the Appellant was subsequently brought to the police station and that the additional padlocks found on the shop belonged to the Appellant. PW4 likewise confirmed that the complainant's shop had been locked and that he advised the complainant to seek medical attention. These witnesses did not witness the alleged assault.
42. The Court therefore appreciates that the direct evidence regarding the actual assault is that of PW1 and the fact that there was no eyewitness to the assault does not render her evidence incapable of sustaining a conviction. The law permits a conviction to be founded on the evidence of a single witness where the court having cautioned itself on the dangers of relying on such evidence finds the witness credible and the evidence cogent and sufficient to prove the charge beyond reasonable doubt.
43. In the present case, PW1 gave a relatively consistent account that the Appellant entered the premises and demanded for Kshs. 200/= and he became violent when she refused to give him the money and ended up assaulting her and thereafter left when she sought assistance. Her account finds material support in the evidence that PW2 responded to her distress call and found her on the ground while PW3 and PW4 the police officers subsequently confirmed the circumstances at the scene and the report made to them
44. The second element is whether the assault occasioned the complainant actual bodily harm. PW5 the clinical officer testified that upon examination PW1 had swollen left breast tissue and tenderness on the right scapular aspect. He further noted that there were no tears or bruises and formed the diagnosis of soft tissue injuries. He classified the injuries as having been caused by blows based on the history given by the patient.
45. The medical evidence therefore establishes that PW1 had sustained physical injuries and the injuries were not merely alleged by the complainant but were independently observed and documented by PW5. The evidence of the swollen left breast tissue and tenderness on the scapular aspect is consistent with PW1's account that she had been pulled on the breast and hit on the back.
46. That said, the Court is alive to the fact that the medical evidence by itself does not identify the person who inflicted the injuries. The question of identity must therefore be determined from the totality of the evidence, particularly the testimony of PW1 and the surrounding circumstances.
47. The Appellant denied assaulting PW1 and maintained that the dispute arose from Kshs. 200/= which PW1 had received from the hire of his cart. He further alleged that PW2 attacked him and escorted him to the police station. The defence therefore places the Appellant at the scene but disputes the alleged assault.
48. I have considered the Appellant's defence alongside the prosecution evidence and it is not disputed that the Appellant was at the premises where the disagreement over the Kshs. 200/= arose and it is also not disputed that PW2 responded to PW1's call and found the Appellant at the scene while PW1 was on the ground and that the evidence further establishes that PW1 made a report of having been assaulted and was subsequently medically examined.
49. I am of the considered view that the Appellant's defence that PW1 fabricated the allegations on account of their existing family disagreements and the dispute over the Kshs. 200/= was a matter that the trial court was required to consider, needless to say the existence of a disagreement between the parties does not in itself establish that the allegation of assault was fabricated.
50. Having re-evaluated the evidence as a whole, I find that the evidence establishes that PW1 was assaulted and sustained actual bodily harm. However, the Court must further determine whether the prosecution proved beyond reasonable doubt that it was the Appellant who unlawfully inflicted the injuries.
51. I note that that the Appellant does not dispute that he was present at the scene on the material day as in his sworn defence the Appellant admitted that he went to the complainant’s shop and confronted her regarding payment of Kshs. 200/= arising from the pull-cart business, his defence therefore places him at the scene and confirms that there was an interaction and confrontation between him and the complainant at the material time. This aspect of his evidence lends credence to the prosecution evidence regarding the Appellant’s presence at the scene and the existence of the dispute which preceded the assault.
52. While the Appellant’s mere presence at the scene would not be sufficient to establish the offence, the Court is entitled to consider that admission together with the evidence of the complainant and the circumstances immediately obtaining after the incident and between the evidence of PW1 & PW2. The medical evidence further lends support to the complainant’s account that she had sustained physical injuries and further PW5 testified that upon examination the complainant had swollen left breast tissue and tenderness on the right scapular aspect, which injuries were assessed as soft tissue injuries consistent with the complainant’s account that she had been struck by the Appellant and with his admitted confrontation with the complainant over the Kshs. 200/=, the evidence of PW2 as to the immediate aftermath, and the medical findings, the evidence establishes a coherent and unbroken chain connecting the Appellant to the assault.
53. I am therefore satisfied that the prosecution proved beyond reasonable doubt that the Appellant assaulted the complainant and that the assault occasioned her actual bodily harm within the meaning of Section 251 of the Penal Code and I so hold.
54. In respect to Count 111 the Appellant was charged with creating a disturbance in a manner likely to cause a breach of the peace contrary to Section 95(1)(b) of the Penal Code. It is important to observe that, unlike Count I, the Appellant was not acquitted of Count III at the close of the prosecution case. The learned trial magistrate found that he had a case to answer and accordingly placed him on his defence on both Counts II and III.
55. However, upon conclusion of the defence case, the learned trial magistrate proceeded to determine Count I and Count II and convicted the Appellant on those two counts. The judgment thereafter proceeded to sentence the Appellant on Counts I and II. In the judgment, the trial court determined that having convicted the Appellant on count II, it was unnecessary to make a determination on Count III.
56. Two issues arise. First, the trial magistrate erroneously treated count III as an alternative count yet it was a substantive count. The trial court was required to make a substantive determination on the charge, based on the evidence adduced before the court and either convict or acquit the Appellant.
57. Secondly but more critically, the recent decision in Law Society of Kenya vs Director of Public Prosecutions & Others; Kebaso (interested Party) Petition E573 of 2024 , the High Court declared the provisions of section 95 (1) of the Penal Code unconstitutional and thus the charges brought under that section are no longer sustainable. The import therefore is that the Appellant is discharged on count III.
58. In the result, the appeal succeeds in part. The conviction on Count I is quashed and the sentence of five (5) years imprisonment set aside. The conviction and sentence of two (2) years imprisonment on Count II are upheld without alteration save that the sentence shall run from the date the Appellant was first taken into custody.
Final Order
59. The upshot of the above is that I order as follows:
a) The conviction and sentence on Count I are quashed and set aside.
b) The conviction and sentence on Count II is upheld, with the sentence to run from the date of the Appellant's custody.
c) The Appellant is discharged on Count III .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 17 th September 2026.
HCCA NO. E010 OF 2026 SAUL MBALI KIMEU VS REPUBLIC JUDGMENT Pg. 16
JUDGMENT.
Introduction
1. This Appeal arises from the conviction and imprisonment of the Appellant in Tawa Magistrates Court Criminal Case No. E383 of 3032 wherein the Appellant in the first count was charged with the offence of committing an indecent act with an adult contrary to Section 11 (a) of the Sexual offences act No. 3 of 2005 . The particulars are that the Appellant on the 27 th day of October, 2021 at around 0900hr at Ilarll market in Mbooni West Sub – County within Makueni County intentionally touched the breasts of Caroline Mueni Kimeu using his hands against her will.
2. The Appellant was further charged with the offence of Assault causing actual bodily harm contrary to Section 251 of the Penal Code . The particulars are that the Appellant on the 27 th day of October, 2021 in Tolimaryi location Mbooni Sub County within Makueni County assaulted Caroline Mueni Kimeu thereby occasioning actual bodily harm at the shoulder.
3. The Appellant was also charged with a third count with the offence of creating disturbance in a manner likely to cause a breach of peace contrary to Section 95(1) (b) of the Penal Code . The particulars are that the Appellant on the 27 th day of October, 2021 at around 09:00 hours at Ilarll market in Mbooni West Sub – County within Makueni County created disturbance in a manner likely to cause a breach of peace by chasing Caroline Kimeu from her M-Pesa shop and locking the shop.
4. The Appellant pleaded not guilty to the charges and thereafter the case proceeded to trial wherein the Prosecution called a total of 5 Witnesses. At the close of the prosecution case, the Court found that the Appellant had a case to answer in respect to count (ii) and Count (iii) and he was placed on his defence where he opted to give sworn evidence and called no witnesses.
5. By a judgement dated and delivered on the 18 th day of February 2025, the Appellant was convicted of the 2 nd count and sentenced to serve 5 years. He was also convicted of the 3 rd Count and sentence to serve 2 years and both sentences were to run concurrently.
6. Being dissatisfied with the decision, the Appellant filed this Appeal vide a Petition dated the 12 th day of March, 2026 in which he relied on the following Five (5) grounds reproduced verbatim
1. That the learned trial magistrate erred in matters of law and facts by failing to consider that the prosecution did not prove its case to beyond reasonable doubt.
2. That the learned trial magistrate erred in matters of law and facts by failing to consider the contradictions and inconsistencies that did not warrant conviction.
3. That the learned trial magistrate erred in matters of law and facts by failing to consider that the prosecution witnesses were of questionable integrity.
4. That the learned trial magistrate erred in matters of law and facts by failing to consider my cogent defence and mitigation.
5. That I may be supplied with the trial court proceedings for more amended grounds of Appeal.
7. It was his prayer that the appeal succeeds in its entirety, the conviction be quashed, sentence set aside and the Appellant be set at liberty.
Prosecution evidence before the trial court.
8. PW1 testified that she operates a business and on the 27 th October, 2021 she was in her house at around 6.00 a.m and had prepared the kids for school and was back to her normal chores when she was called out by a customer who was asking for pull carts. She served him and was paid Kshs. 200/= and she went back to her house. She testified that while in her house, a person who was well known to her being his brother in law and the Appellant herein intruded into her house and asked for the said Kshs. 200/= but she refused to give it to him. She testified that the Appellant became violent and assaulted her and pulled on her left breasts and hit her on the back using his hands. PW1 testified that since she was alone in the house, she picked her phone and called a neighbor who came to her rescue and found her on the floor and took her to the Hospital. At this point the Appellant had already left the house. She further testified that it was the neighbour, one Isaac Kimeu Mutuku who took the Appellant to the Police station. She testified that she was issued with a P3 Form and which she went with it to the Police station and the Appellant was eventually arrested but at the time he had also closed PW1’s house.
9. On cross examination she testified that no one was present when she was assaulted and she was only found lying on the ground after calling Isaac and Chris. She testified that she still goes to the clinic for treatment for the Injuries she sustained on her breast and that she did not fabricate the charges due to her marital issues.
10. PW2 testified that on the date of the incident, PW1 called him asking for rescue and when he went to the shop belonging to PW1 where he found the Appellant on PW1’s shop and PW1 was on the ground and the Appellant was threatening to kill PW1. He testified that the Appellant was at the entrance of the shop and in intervention he took hold of the Appellant and escorted him to Ilani Police station. He testified that he later learnt the issue was Kshs. 200/= for the pull cart business and he also took the Complainant to the Hospital where she was issued with a P3 Form and the Appellant was later arrested.
11. On cross examination he testified that he arrived at the scene and found PW1 on the floor but he did not see the Appellant assaulting her but he was there in the shop.
12. PW3 testified that he got a report that the Complainant’s shop had been closed and he advised the 3 individuals who reported to bring the victim to the police station which she later did and she was issued with a P3 form. His evidence was that the Complainant had stated that she had been assaulted in the breasts and that her shop had been closed. PW3 testified that he went to the scene and found that the shop had been closed and a later time he proceeded and booked the Appellant.
13. In cross examination he stated that the Appellant was escorted to the station by 3 people where he re-arrested him. He further stated that the Appellant touched the complainant’s breast by pushing him to the ground. However, there were no other witness who could confirm that indeed that had happened. However, he confirmed that he found the Complainant’s shop locked but the additional padlocks belonged to the Appellant as he was the one who unlocked them thereafter.
14. PW4 testified that he also went to the scene together with PW3 where they found the shop belonging to PW1 had been locked with 3 padlocks and advised the complainant to go to the Hospital and he issued her with a P3 Form which was filled by a doctor from Mbooni Sub – County Hospital. On cross examination he testified that three people reported the case of assault to the Police station and had frog matched the Appellant to the station but he was not aware whether the 3 men assaulted the Appellant. He testified that he issued the Appellant with a P3 Form but has never taken action against the three individuals for assault.
15. PW5 the clinical officer testified that he had a P3 Form and treatment notes for PW1. He testified that PW1 had swollen left breast tissue, tender right scapular aspect, no tears/bruises and he made a diagnosis of soft tissue injuries. On cross examination, he stated the weapon used was blows as per the history of the patient. On re-examination he stated that no allegation of sexual assault had been made at the time of the examination and that the injuries were on her breasts.
Defence Evidence before the trial court
16. The Appellant elected to give sworn evidence. He testified that he had been framed and that PW1 had hired his cart to another person and was paid. He testified that after being paid she refused to hand over the money to him and was eventually paid by officer Nyandoro. He testified it is PW1 who called PW2 who came and attacked him and took him to the police station but he did not assault the Complainant. On cross examination he stated that he was at the shop where he found PW1 outside and demanded for his money and that nobody saw him assaulting PW1.
Submissions by Parties
17. The Appeal was canvassed by way of written submissions wherein the Appellant filed his submissions dated the 15 th day of May, 2026. The Appellant submitted that although the magistrate expressly acquitted him on the first count under Section 210 of the Criminal Procedure Code, and further found no basis to convict on the third count of creating disturbance, the same magistrate nonetheless proceeded to sentence him to five years' imprisonment on the first count and two years on the second, the sentences to run concurrently and that sentencing him on a count already quashed amounts to double jeopardy contrary to Article 50(2)(o) of the Constitution stating that the matter with a predisposition to convict rather than an impartial evaluation of the evidence. He relied on the case of David Mwangirwa v Republic [2017] KECA .
18. He submitted that the prosecution did not prove its case beyond reasonable doubt pointing to material contradictions and inconsistencies among the prosecution witnesses that render them unreliable. He highlights that the complainant's account of where and how the assault occurred shifted materially between her examination-in-chief and cross-examination particularly regarding whether she was found in her house or at an M-Pesa shop.
19. He further notes that PW2, said to be the complainant's cousin, gave a conflicting narrative as to time and place and in cross-examination revealed a pre-existing grudge and prior litigation between himself, the complainant, and the Appellant's family which he stated casted doubts on his impartiality.
20. The Appellant further questioned the reliability of the medical evidence tendered by PW5, submitting that the P3 form and clinical presentation date do not align with the date of the alleged assault and suggests the medical report may relate to unrelated treatment the complainant was receiving. He relies on Biruri v Republic [2025] KECA 375, Philip Nzaka Watu vs Republic [2016] KECA 696, Ndungu Kimanyi vs Republic [1979] KLR 282 .
21. The Appellant contends that the trial court failed to comprehensively consider his sworn defence in which he explained the genesis of the dispute as arising from long-standing family discord with the complainant including a tribunal case, a child maintenance suit and a disagreement over payment for hire of a cart and submits that these facts point to malicious motive rather than a genuine assault.
22. Conclusively, the Appellant urges the Court to find that the sentence imposed on the count on which he had been acquitted was illegal and unsafe and that the conviction and sentence on the assault count were similarly the product of bias and improper motive arising from a family dispute.
23. He prays that this Honourable Court sets aside the sentence and orders of the lower court delivered on 4 th March 2025 declaring the proceedings judgment and sentence null and void quashing the conviction and orders his release in the interest of justice.
24. On the part of the Respondent, they however did file submissions in opposition of the Appeal and conceded that the trial court who took over the matter from the initial court failed to take account that the Appellant had been discharged on count I under section 210 of the CPC. In that regard, their submissions were only in regard to count II. They asked the court to uphold the conviction and sentence imposed by the trial court.
Analysis and Determination
25. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanor of the witnesses ( See Okeno vs. Republic [1972] E.A 32 )
26. The issues for determination are evidently the following;
1) Whether the learned trial court properly convicted the Appellant on Count I.
2) Whether Count 2 was proved beyond reasonable doubt against the Appellant.
3) What should the Court do in respect to count 3 ?
27. On the first issue, the court notes from the ruling delivered on the 13 th day of May, 2024 at the close of the prosecution case, the learned trial magistrate considered the evidence tendered in respect of the three counts. The trial court found that the Appellant had no case to answer on Count I and consequently acquitted him in respect thereof. But upon the matter being heard on defence the Appellant was convicted on count 1 & 11 and not Count III and this meant that the Appellant was thereafter called upon to defend himself only in respect of Counts II and III and not Count 1.
28. The question that therefore arises is whether having found at the close of the prosecution case that the Appellant had no case to answer on Count I and having consequently acquitted him thereon, the trial court could subsequently revisit that count upon consideration of the defence evidence and convict the Appellant.
29. The Court is guided by Section 210 of the Criminal Procedure Code , which provides as follows:
“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him .”
30. The language of Section 210 is mandatory and where the trial court finds at the close of the prosecution case that that no case has been made out sufficiently to require the accused person to make a defence then the court is required to dismiss the case and forthwith acquit the accused person. The consequence is that the particular charge in respect of which the finding is made is brought to an end.
31. This position was considered in Robert Karanja Kamau vs Prosecution [2016] eKLR , where the appellant had been acquitted under Section 210 of the Criminal Procedure Code on several counts and placed on his defence on another count. The trial magistrate subsequently convicted him on the counts on which he had already been acquitted. The High Court held that the magistrate had erred in convicting the appellant on the counts in respect of which he had earlier been acquitted under Section 210. The Court observed that the appellant had correctly been acquitted on those counts and that it was erroneous for the magistrate who subsequently delivered the judgment to convict him on the same counts. The High Court further noted that Section 354(3) of the Criminal Procedure Code empowers the appellate court to correct mistakes made by subordinate courts.
32. The rationale for the foregoing principle is that the finding of no case to answer under Section 210 is not a provisional or interlocutory finding and once the court makes that finding and proceeds to acquit the accused person, there remains no charge upon which the accused can properly be called upon to make a defence meaning the court cannot thereafter cannot proceed to determine it upon the basis of the defence evidence.
33. In the present case, the learned trial magistrate had already determined Count I at the close of the prosecution case. The Appellant was expressly found to have no case to answer and was acquitted on that count and he was thereafter required to defend himself only against Counts II and III meaning there was therefore no lawful basis upon which Count I could subsequently be revived and considered together with the defence case.
34. To this end the conviction on Count I was therefore made in circumstances where there was no longer a pending charge upon which the Appellant could be convicted. The learned trial magistrate thereby fell into error by revisiting a count that had already been determined in the Appellant's favour hence irregular and amounted to an error in the conduct of the trial court.
35. I therefore find that the conviction on Count I cannot stand. The same is hereby quashed and the sentence imposed of 5 years’ imprisonment is hereby set aside
36. On the second issue for determination, it is trite that for the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code the prosecution is required to prove beyond reasonable doubt the essential elements of the offence. Section 251 of the Penal Code provides that:
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
37. From the above the essential elements of the offence which the prosecution was required to establish beyond reasonable doubt are that the Appellant assaulted the complainant and that the said assault occasioned the complainant actual bodily harm meaning that the prosecution was therefore required to establish not only the occurrence of the assault but also a causal connection between the assault and the actual bodily harm suffered by the complainant.
38. The foregoing position has been affirmed in recent decisions of the High Court.
a) In Jepchirchir vs Republic [2024] KEHC 16335 (KLR), at paragraph 21 , the Court, relied on the decision of the Court of Appeal in Ndaa vs Republic [1985] eKLR ,
‘21. the essential elements of the offence of assault causing actual bodily harm are that the accused assaulted the complainant or victim and that the assault occasioned actual bodily harm.
23. the Court further observed that the prosecution must demonstrate that there was an intention to assault, that the assault took place and that it resulted in actual bodily harm.
b) Similarly, in Sunguti v Republic [2025] KEHC 11185 (KLR )
‘14, the Court held that the offence of assault causing actual bodily harm requires proof of two essential elements, namely, that there was an assault against the complainant and that the assault resulted in actual bodily harm. 17. the Court found that the second element was established through medical evidence which documented the injuries sustained by the complainant and classified them as harm. The Court consequently held that the injuries met the threshold of actual bodily harm as they were neither trifling nor transient.
39. Turning to the first element, namely whether the Appellant assaulted the complainant, the prosecution case principally rests on the evidence of PW1. PW1 testified that while she was at her house, the Appellant, whom she knew as her brother-in-law, entered the house and demanded Kshs. 200/= from her. Upon her refusal to give him the money, the Appellant became violent, pulled her on the left breast and hit her on the back using his hands. She further testified that she fell to the ground and, being alone in the house, called PW2 and another neighbour for assistance.
40. PW2 did not witness the actual assault as his evidence was that upon receiving a distress call from PW1, he proceeded to the scene where he found PW1 on the ground and the Appellant at the entrance of the shop. PW2 intervened, restrained the Appellant and subsequently escorted him to Iani Police Station. His evidence therefore corroborates the presence of the Appellant at the scene and the fact that PW1 was found on the ground shortly after she had sought assistance, but does not establish that he saw the Appellant assaulting her.
41. The evidence of PW3 and PW4 similarly places the Appellant and the complainant within the circumstances surrounding the incident. PW3 testified that upon receiving the report, he proceeded to the scene and found the complainant's shop locked. He further testified that the Appellant was subsequently brought to the police station and that the additional padlocks found on the shop belonged to the Appellant. PW4 likewise confirmed that the complainant's shop had been locked and that he advised the complainant to seek medical attention. These witnesses did not witness the alleged assault.
42. The Court therefore appreciates that the direct evidence regarding the actual assault is that of PW1 and the fact that there was no eyewitness to the assault does not render her evidence incapable of sustaining a conviction. The law permits a conviction to be founded on the evidence of a single witness where the court having cautioned itself on the dangers of relying on such evidence finds the witness credible and the evidence cogent and sufficient to prove the charge beyond reasonable doubt.
43. In the present case, PW1 gave a relatively consistent account that the Appellant entered the premises and demanded for Kshs. 200/= and he became violent when she refused to give him the money and ended up assaulting her and thereafter left when she sought assistance. Her account finds material support in the evidence that PW2 responded to her distress call and found her on the ground while PW3 and PW4 the police officers subsequently confirmed the circumstances at the scene and the report made to them
44. The second element is whether the assault occasioned the complainant actual bodily harm. PW5 the clinical officer testified that upon examination PW1 had swollen left breast tissue and tenderness on the right scapular aspect. He further noted that there were no tears or bruises and formed the diagnosis of soft tissue injuries. He classified the injuries as having been caused by blows based on the history given by the patient.
45. The medical evidence therefore establishes that PW1 had sustained physical injuries and the injuries were not merely alleged by the complainant but were independently observed and documented by PW5. The evidence of the swollen left breast tissue and tenderness on the scapular aspect is consistent with PW1's account that she had been pulled on the breast and hit on the back.
46. That said, the Court is alive to the fact that the medical evidence by itself does not identify the person who inflicted the injuries. The question of identity must therefore be determined from the totality of the evidence, particularly the testimony of PW1 and the surrounding circumstances.
47. The Appellant denied assaulting PW1 and maintained that the dispute arose from Kshs. 200/= which PW1 had received from the hire of his cart. He further alleged that PW2 attacked him and escorted him to the police station. The defence therefore places the Appellant at the scene but disputes the alleged assault.
48. I have considered the Appellant's defence alongside the prosecution evidence and it is not disputed that the Appellant was at the premises where the disagreement over the Kshs. 200/= arose and it is also not disputed that PW2 responded to PW1's call and found the Appellant at the scene while PW1 was on the ground and that the evidence further establishes that PW1 made a report of having been assaulted and was subsequently medically examined.
49. I am of the considered view that the Appellant's defence that PW1 fabricated the allegations on account of their existing family disagreements and the dispute over the Kshs. 200/= was a matter that the trial court was required to consider, needless to say the existence of a disagreement between the parties does not in itself establish that the allegation of assault was fabricated.
50. Having re-evaluated the evidence as a whole, I find that the evidence establishes that PW1 was assaulted and sustained actual bodily harm. However, the Court must further determine whether the prosecution proved beyond reasonable doubt that it was the Appellant who unlawfully inflicted the injuries.
51. I note that that the Appellant does not dispute that he was present at the scene on the material day as in his sworn defence the Appellant admitted that he went to the complainant’s shop and confronted her regarding payment of Kshs. 200/= arising from the pull-cart business, his defence therefore places him at the scene and confirms that there was an interaction and confrontation between him and the complainant at the material time. This aspect of his evidence lends credence to the prosecution evidence regarding the Appellant’s presence at the scene and the existence of the dispute which preceded the assault.
52. While the Appellant’s mere presence at the scene would not be sufficient to establish the offence, the Court is entitled to consider that admission together with the evidence of the complainant and the circumstances immediately obtaining after the incident and between the evidence of PW1 & PW2. The medical evidence further lends support to the complainant’s account that she had sustained physical injuries and further PW5 testified that upon examination the complainant had swollen left breast tissue and tenderness on the right scapular aspect, which injuries were assessed as soft tissue injuries consistent with the complainant’s account that she had been struck by the Appellant and with his admitted confrontation with the complainant over the Kshs. 200/=, the evidence of PW2 as to the immediate aftermath, and the medical findings, the evidence establishes a coherent and unbroken chain connecting the Appellant to the assault.
53. I am therefore satisfied that the prosecution proved beyond reasonable doubt that the Appellant assaulted the complainant and that the assault occasioned her actual bodily harm within the meaning of Section 251 of the Penal Code and I so hold.
54. In respect to Count 111 the Appellant was charged with creating a disturbance in a manner likely to cause a breach of the peace contrary to Section 95(1)(b) of the Penal Code. It is important to observe that, unlike Count I, the Appellant was not acquitted of Count III at the close of the prosecution case. The learned trial magistrate found that he had a case to answer and accordingly placed him on his defence on both Counts II and III.
55. However, upon conclusion of the defence case, the learned trial magistrate proceeded to determine Count I and Count II and convicted the Appellant on those two counts. The judgment thereafter proceeded to sentence the Appellant on Counts I and II. In the judgment, the trial court determined that having convicted the Appellant on count II, it was unnecessary to make a determination on Count III.
56. Two issues arise. First, the trial magistrate erroneously treated count III as an alternative count yet it was a substantive count. The trial court was required to make a substantive determination on the charge, based on the evidence adduced before the court and either convict or acquit the Appellant.
57. Secondly but more critically, the recent decision in Law Society of Kenya vs Director of Public Prosecutions & Others; Kebaso (interested Party) Petition E573 of 2024 , the High Court declared the provisions of section 95 (1) of the Penal Code unconstitutional and thus the charges brought under that section are no longer sustainable. The import therefore is that the Appellant is discharged on count III.
58. In the result, the appeal succeeds in part. The conviction on Count I is quashed and the sentence of five (5) years imprisonment set aside. The conviction and sentence of two (2) years imprisonment on Count II are upheld without alteration save that the sentence shall run from the date the Appellant was first taken into custody.
Final Order
59. The upshot of the above is that I order as follows:
a) The conviction and sentence on Count I are quashed and set aside.
b) The conviction and sentence on Count II is upheld, with the sentence to run from the date of the Appellant's custody.
c) The Appellant is discharged on Count III .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 17 th September 2026.
HCCA NO. E010 OF 2026 SAUL MBALI KIMEU VS REPUBLIC JUDGMENT Pg. 16