Republic v Nyamohanga (Criminal Case 91 of 2013) [2013] KEMC 107 (KLR) (22 November 2013) (Judgment)
Neutral citation:
[2013] KEMC 107 (KLR)
Republic of Kenya
Criminal Case 91 of 2013
PA Ndege, Ag. PM
November 22, 2013
Between
Republic
Prosecutor
and
NicksonMwita Nyamohanga
Defendant
Judgment
1.The Defendant herein, Nickson Mwita Nyamohanga, was on 11.03.2013 charged with the offence of Assault Causing Actual Bodily Harm contrary to section 251 of the Penal Code. He denied that on 30.01.2013 at Gokeharaka Village in Kuria West District within Migori County, he unlawfully assaulted SAmson Chacha thereby occasioning him actual bodily harm.
2.According to the prosecution's case, on the material date at around 10.00 a.m., the complainant, PW1, Samson Chacha Wambi, was in his house with his wives, PW2, Susana Mogosi Chacha And Pw3, Sophia Chacha, when they heard their calves mooing from outside the house. The complainant, PW1, Samson Chacha Wambi, immediately got out of the house so as to check on the calves. He saw the defendant herein while with a colleague, Nyansunga Nyamohanga, and he suspected that they had assaulted his calves. That the two had injured one of the calves till it had fallen down. That they then told him that they did not want him to be tethering the livestock inside their father's land. That Nyansunga Nyamohanga had a motorcycle cell which he threw at him and injured his left side of the face. The defendant herein then also used a stick that he was armed with to him at the neck.
3.The complainant, PW1, Samson Chacha Wambi, fell down while unconscious.
4.His two wives, PW2, Susana Mogosi Chacha, and PW3, SOphia Chacha, witnessed the assault and screamed when the complainant, PW1, Samson Chacha Wambi, fell down. Some neighbours responded to the screams and administered some basic first aid on the complainant.
5.PW3, Sophia Chacha Wambi, took the complainant, PW1, Samson Chacha Wambi, to Gitontiro Hospital for treatment.
6.According to the complainant's evidence, PW1, Samson Chacha Wambi, he found himself while at Kehancha District Hospital.
7.PW4, Moses Ginono, a clinician at Kehancha District Hospital confirmed that he treated the complainant herein on the same day and as per the medical notes that he produced as PEXH. No. 2. He diagnosed him with Soft Tissue Injuries due to assault with a swelling at the neck.
8.The complainant, PW1, Samson Chacha Wambi, went to report at Kehancha Police Station after the treatment. He was served at around 4.17 p.m. by PW5, NO. 91253 PC Simon Pasha, a police officer based at the station.
9.PW5, NO. 91253 PC Simon Pasha, issued a Medical Examination (P3) Form to the complainant, PW1, Simon Chacha Wambi, which he returned with to Kehancha District Hospital where he was again examined by PW4, Moses Ginono, who formed an opinion that a blunt object was used to assault and harm the complainant. He produced the Medical Examination ( P3) Form as PEXH. No. 1.
10.PW5, NO. 91253 PC Simon Pasha, issued an order of arrest of the defendant herein to the complainant herein, PW1, Simon Chacha Wambi, which arrest was later effected by some Administration Police ( A.P. ) officers from Nyametaburo.
11.The complainant, PW1, NO. 91253 PC Simon Pasha, and the defendant herein are cousins who are disputing over their grandfather's parcel of land.
12.The defendant when called upon to defend himself denied assaulting the complainant herein as alleged. He confirmed that he was indeed arrested on 11/03/13 and taken to Nyametaburo where the complainant had reported that he is fond of disturbing him and that he wanted a compensation of Kshs. 36,000/= for the expenses that he had incurred while trying to trace him with police officers. He however denied that he had escaped from his place and gone into hiding and therefore offered to pay him only Kshs. 10,000/=. That the complainant thereafter refused to withdraw the complaints herein as had been agreed, and after receiving the part payment from the him. That it is the complainant herein who had tethered his cows at his ( the defendant's) portion of land which was to be ploughed.
13.DW2, John Mwita Sangu, a neighbour claims to have also responded to the screams from the complainant wives and found when the defendant herein was complaining that the complainant had tethered some cows in his farm. According to him, both the complainant and the defendant herein were standing on their portions of the land and he did not hear or witness the complainant being assaulted.There were no submissions at the close of hearing.
14.It is not in doubt that the defendant and the complainant herein met on the material day and disagreed over the manner in which the complainant had tethered his cows to graze on the parcel of land herein.
15.The prosecution witnesses were consistent that the defendant then jointly with another not before court formed a common intention to assault and injure/ harm the complainant at the neck and face. The complainant was taken to the hospital while unconscious. He confirmed that he came to while at Kehancha District Hospital. PW4 of Kehancha District Hospital confirmed that he attended to a sick looking complainant herein who had been harmed at the neck due to an assault on the same day. It therefore does not matter that PW3, gave a different name of the hospital where she alleges she took the compliant to as the complainant himself, and the clinician who attended to him have both confirmed that the hospital was Kehancha District Hospital and not Gitontiro Hospital as alleged by PW3. PW3 appeared semi-literate, given that she had to be excused to proceed with her testimony in Kikuria and her perception that the hospital was Gitontiro and not Kehancha is therefore excusable and should not be the sole ground to discredit the credible and clear evidence of the complainant and PW4 that the complainant was attended to by PW4 at Kehancha District Hospital on the same day of the assault while with a swollen neck which was confirmed to have been caused by a blunt object; in an assault attack as has been proved herein. Witnesses have different ways of perceiving facts and not all contradictions should form ground to discredit the prosecution evidence. Minor Contradictions, such as the instant one, cannot affect the prosecution's evidence.
16.I find the prosecution's evidence to be reliable than that for the defence, which mainly came from the defendant herein, DW1. The defendant did not raise the issues which he raised in his defence during the cross-examination of the prosecution witnesses who all confirmed to have been present at the scene during the assault attack herein.
17.The fact that the defendant himself confirmed on oath that he was in the process of compensating the complainant herein also corroborates and/ or strengthens the prosecution's case that the defendant herein wronged the complainant and not the other way round.
18.Whereas the court is enjoined in section 176 of the Criminal Procedure Code and Article 159 (2) (c) of the Constitution to promote reconciliation, such reconciliation should not be forced on the parties, especially the aggrieved party.
19.DW2's evidence on the other hand appears not to be that clear on what he witnessed when he responded to the screams herein, and given my analysis of the evidence in PW1, PW2, PW3, PW4, PW5 and DW1, I do not find any much weight to attach to his evidence than that already attached to the other evidence herein. He confirmed that he responded to the scene after the screams which were confirmed to have been made after the assault and when the complainant had fallen down. He also confirmed that he was positioning himself to get secondary evidence of hearsay of what could have happened which still could not have been of much value herein.
20.I find that the prosecution has been able to prove their case to the required standard of beyond reasonable doubt that the defendant herein formed a common attention with another colleague who is yet to be charged herein to attack and did attack and caused actual bodily harm to the complainant herein when they met on the material day, and in the course of their dispute over their ancestral land. No one of them has proved claim to ownership to the parcel, or any portion thereof, and no one was therefore entitled or justified to attack and harm the other because of the dispute over the parcel, or portion thereof.
21.The medical evidence adduced herein, PEXH. Nos. 1and 2 both proves to the required standard that the complainant was harmed on 30.01.2013 after an assault attack. The evidence herein also points to the defendant and his accomplice who is still at large, and not any other person to be the ones who committed the assault.
22.I do consequently find the defendant herein guilty as charged and consequently do hereby convict him pursuant to the provision of section 215 of the Criminal Procedure Code of the offence of Assault Causing Actual Bodily Harm c/s 251 of the Penal Co de as charged herein.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT THIS 22ND DAY OF NOVEMBER , 2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Court interpreter: MagigeProsecutor: CIP MachariaDefence counsel:Defendant: Present