REPUBLIC OF KENYA

IN THE SENIIOR RESIDENT MAGISTRATES COURT AT KEHANCHA

CRIMINAL CASE No. 1037 OF 2018

GIRIAMA BUSUNKWI …………………………… ACCUSED

- VERSUS-

REPUBLIC THROUGH KENNEDY NDERA

I, ​Giriama Busunkwi ​the accused ​in this case ​have been charged in this court with the offence of assault
contrary to section ​251 Of the Penal Code​. The particulars of charge against me provide as follows: that
on the 5​th Day of December 2018 at St. Kizito village in ……………………………… within Migori
County, I assaulted Kennedy Ndera herein referred to as the complainant.

I pleaded not guilty to the charge. I was unrepresented and the prosecution was led by Mr. Martin. The
prosecution called a total of four {4} witnesses ​in an attempt ​to prove the ingredients of the offence
beyond reasonable doubt.

The assault of the complainant, one Kennedy Ndera

At the close of the prosecution case, I Giriama Busunkwi – the accused wish to ​submit that the evidence
adduced does not warrant being placed on my defence and I pray that the court makes a finding that I
have no case to answer and proceed to acquit me forthwith under section 210 of the Criminal Procedure
Code. ​This is a case where I have been maliciously charged and prosecuted. The evidence of the
witnesses which I will summarize below, is so discredited, and is full of inconsistencies and
contradictions by the witnesses themselves, to the extent that I pray you find it insufficient to sustain a
prima facie case against me.

PW1 and PW2 who testified as relatives {son and father} confirmed that PW1 was in my home where
PW1 was picked by PW2 at around 1pm yet PW1 in his testimony alleged that he was under
confinement and assault until 4.00pm in my home. PW2 visited my home after receiving a call from me
the accused person for the purpose of picking his son and cautioning him against coming to my home
since the only son I have is aged 4years.it is impossible for PW1 to be friends with my 4 year old son. He
left my home with his son who was very fine as confirmed by PW2 who even gave me Ksh. 1,000/=
contribution towards my late brother Matinde Busunkwi’s funeral arrangements which we were
finalizing on the material day through a fund raising. PW2 could not have given me the cash if I had

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assaulted his son and caused him injury. PW2 testified that he took PW1 to Ntunyigi Medical Clinic for
treatment yet the recipient of the said medical care testified that he was treated at Kuria West Sub
County hospital. This is a serious inconsistency. PW2 in his statement ​told the police ​that PW1 could not
walk and was rushed to Ntunyigi Medical clinic immediately but in his oral submission in court, indicated
that PW1 was wobbling ​(walking with difficulties)​. He further gave testimony that he took PW1 to his
home and left him there but went for him after twenty minutes subsequently taking him to hospital
which account has not been captured anywhere in his written statement. ​This inconsistency raises
serious doubts about the truthfulness and accuracy of his testimony​. Medical notes allegedly generated
by Ntunyigi Medical Clinic show that PW1 was seen at 4.52pm. So the obvious question is where was the
complainant between

Besides these inconsistencies, PW1 and PW2 introduced new evidence alleging that my daughter,
Priscilla Giriama visited their home on the material day to borrow a Mathematics text book titled:
Solving Problems. This piece of evidence is nowhere in their written statements and PW1,PW2 AND PW3
never bothered to produce before this court the said book as an exhibit. PW1 andPW2 testified before
this court that the assault was executed by two persons but their recorded/written statements have no
mention of this. Witness PW4 who was the investigating officer in the charge sheet charged and accused
one person only.

PW3 who is a Clinical officer by the name George Odhiambo attached to Kuria West District hospital in
his testimony told this court that he was visited by PW1 two days after being assaulted but confessed to
not being the first medical officer to see the complainant{PW1}. PW3 testified that he saw PW1 in a blue
black jeans which was blood stained but did not know the body part of PW1 which bled. He could not
produce the said jeans as an exhibit. He said that he saw PW1 on 7​th December 2018 but when asked to
table proof that he saw him on that date, he produced a corrupted version of the P3 form whose copy I
had received from the DPP. PW3 had added a date, made alterations and additions missing in the
original and true P3 form in the custody of the DPP. The Honorable Magistrate and the learned
Prosecutor upon scrutiny of the doctored P3 form presented by PW3 did confirm and pronounce that
indeed the forms were not identical in some parts. PW3 also agreed that the 1​st medical officer who saw
PW1 had written on medical notes presented and indicated clearly that there was no history of bleeding
contrary to PW3’s evidence where he said that he saw blood three days later. PW3 disowned a
statement at the bottom of medical notes from Ntunyigi Medical Clinic which read as follows: ​Seen for
medical legal filling but presented the document containing that sensitive and suggestive sentence in
court as part of his evidence though I raised an objection against its admissibility since he is not the one

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who generated it and PW3 does not work for Ntunyigi medical clinic. PW3 also testified that Section “A”
of the P3 form was filled by him and some medical students/trainees. PW3 also disclosed that the said
section “A” had errors including an OB 32/05/12/2015 which needed to be corrected. An objection to
PW3 being allowed to table medical notes of a medical facility to which he was not an employee was
submitted before this court. He kept quiet when asked about whether his integrity was still intact after
tabling evidence he had corrupted/altered. ​This behavior on the part of PW3 amounted to perjury and
should be treated as such.

PW4, David Kimetto the police investigating officer attached to Kehancha Police Station testified that he
did not see the need of investigating the assault matter because the statements of PW1 and PW2
corroborated each other. He revealed that he did not visit my home which in this case besides St. Kizito
Village is an alleged scene of crime. However, he testified that it was part of procedure for an
investigating officer in a case to visit a crime scene. He also in part of his testimony disclosed that he did
not bother to interrogate me as an accused person before charging me before this court and also never
made me to record a statement before arraigning me in court. PW4 who is also the investigating officer
did not collect any exhibits for presentation in court as part of concrete evidence to prove the charges
against me. He did not investigate and present the following: the stick allegedly used to assault PW1 as
per his testimony, rope claimed to have been used on PW1, text books mentioned by PW1 &2, and the
blue black jeans which PW3 testified about. PW4 also discredited evidence adduced by PW3 to the
effect that he was not aware of a blood stained blue black jeans and never saw any blood of PW1. PW4
claimed that he recorded a statement claiming that it was in the case file but when challenged by the
DPP to give the date when he recorded the said statement as an investigating officer, he kept quiet.
PW4 in his testimony showed that he did not know that St. Kizito and Ntunyigi Village are not one and
the same thereby creating serious doubts as to the specific area where the crime was allegedly
committed.

Against this background of inconsistencies and contradictions in witness statements and oral
submissions, lack of exhibits, together with occasions where PW1,PW2,PW3 and PW4 discredited one
another’s evidence, my final prayers to this honourable court are that the matter be dismissed under
section 210 of Criminal Procedure Code for want of evidence to prove the assault charge against me.
Consequently, the prosecution has failed miserably to present a prima facie case​. I, the accused wish to
point out the following as some of the reasons why I pray that this case may not be allowed to proceed
to defense:

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 1) The prosecution fell short of the threshold required by law to prove a prima facie case
2) PW2 peddled hearsay since he was not at the scene of the alleged crime on the material day
3) PW3 demonstrated that he is a rogue and unprofessional Clinical Officer who later doctored and
altered a document he had submitted to the office of Director of Public Prosecutions and this
court. His piece of evidence is corrupted and cannot be relied upon to deliver justice in this
matter.
4) PW4 who in this case is the investigating officer did not investigate this matter leaving it open to
manipulation by an interested party. He demonstrated lack of interest in the case and failed to
produce a single exhibit which clearly exposed the malice of my accusers. PW4 also discredited
the evidence of other witnesses. ​PW4 also did not visit the scene of the alleged crime a very
essential aspect of any investigation. If he had visited, he would have subjected the scene to
forensic analysis and collect any material exhibits if any.
PW4 also did not supply me with a copy of his witness statement in clear violation of the provisions of
article 50(2)(j) which provides that an accused person has a right to fair hearing which includes
the right to be informed in advance the evidence the prosecution intends to rely on and to have
reasonable access to that evidence which action was prejudicial to my right to a fair hearing.
In summary, I submit that the prosecution evidence as it stands cannot sustain a prima facie case against
me ​and ​therefore urge the court to make a finding of no case to answer and dismiss the matter
under section 210 of the Criminal Procedure Code.

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