CLINICALS 2013

UNIVERSITY OF NAIROBI

CLINICALS
CLNICAL ATTACHMENT REPORT

NAME: Njoroge W. Pauline

REG No: G34/2812/2011
MAVOKO LAW COURTS
7TH OCTOBER TO 29TH NOVEMBER, 2013
SUPERVISING MAGITRATES:
Hon. LINDA A. MUMASSABBA, RM
Hon. P.O. OOKO, Ag. PM

This is a report of a clinical attachment attended from the 7th of October to the 29th of
November 2013 at Mavoko Law Courts.

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QUESTION
NARRATIVE

2013

1
ASSIGNMENT

1A.CIVIL CASES

IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

CIVIL CASE NUMBER 34 OF 2013.
MICHAEL ODOYO OLIMA

PLAINTIFF
Vs.

STEEL MAKERS LIMITED

DEFENDANT

Before Hon. P. OOKO, AG. PM

Hg. 9TH/10/ 2013

The matter was called for hearing for the first time. This case was of a worker seeking
compensation from his employer for an injury that was suffered in the course of his
employment. The witnesses on both sides were guided in giving their testimony by their
advocates. The plaintiff testified on his own behalf and closed his case. The Defence also
called only one witness who was the Human Resource Assistant Manager in the defendant
company and also its first aid attendant.
The plaintiff testified that he used to be an employee of the Defendant Company as from
September 2012. He was a general worker. The company did not issue him with any
employment documents and so he could not produce any in court. On the 19th of February
2013, he was assigned to work at the mill scale department. While removing some pieces of
metal from the mill scale, he tried to stand and was hit by a rolling mill that was moving
above him. He suffered an injury to his head in the form of a scalp wound. There was a
fellow colleague who witnessed the accident. Their supervisor recorded their statements but
they were not produced in court. He went to Athi River Health Services for treatment and

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was discharged. The Defendant Company also gave him a ten-day sick off. The medical
summary from the said facility was produced in court as P. EX 1. He was also examined by a
Dr. Ikonya at a fee of Kshs. 3,000/= .A receipt and a medical report from the said doctor were
produced as P.EX 2 and 3 respectively. He blamed the company for failing to provide him
with a helmet which would have protected him from any injury.
The Defence witness in his evidence confirmed that the plaintiff was indeed the defendant
companys employee. He stated that on the 19th of February 2013, the plaintiff had been on
night shift and had been injured on his head by a rolling mill at or around 5: 00 AM on the
morning of 20th February the same year. He did not witness the accident as he usually came
to work at 7:00 AM. His evidence as to how the accident occurred was hearsay and thus
inadmissible. Further he said that the plaintiff did not seek treatment immediately as he
thought the injury was a minor one. The plaintiff left for home and only came back for
treatment at 10:30 AM. Being the first aid attendant, he attended to him and then informed
the plaintiffs supervisor, who proceeded to refer the plaintiff to Athi River Health Services
for further treatment. It is the Defendant Company which met the hospital expenses from the
said hospital. He argued that it was the plaintiffs carelessness that had caused him to suffer
the injury on his head. He also claimed that the Defendant Company provided helmets; the
plaintiff had failed to pick up his.
The evidence was tendered very clearly by the witnesses who followed their advocates leads
very well. However, knowing the possible issues for determination in such a case, it appeared
to me that the evidence tendered by the defence witness was of great benefit to the plaintiff.
It was clear that the plaintiff had no documentary proof of his having been employed by the
Defendant Company. This the defence witness confirmed by stating that he knew the plaintiff
because they worked for the same company. Further, he confirmed that the plaintiff had
suffered an injury to his head and that he himself conducted first aid on him. He also stated
that the plaintiff had been on night shift which was due to end at 7: 00AM, but had been
injured at 5:00 AM. This confirmed that the plaintiff was injured in the course of his
employment. The plaintiffs supervisor referred him to Athi River Health Services and the
company paid for the treatment. These actions were indications of the Defendant Companys
acceptance of liability.

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IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

CIVIL CASE NUMBER 35 OF 2013

JUSTINE ONDIEKI MORANGA

PLAINTIFF
Vs.

SAVA BUILDER CONSTRUCTION LTD

DEFENDANT

Before Hon. LINDA A. MUMASSABBA, RM

Hg. 10/10/2013.

The matter had come up for hearing for the first time. It was the hearing of the plaintiffs
case. The plaintiff had been injured while in the course of employment with the Defendant
Company and he was seeking compensation from his employer for the loss suffered. He was
represented by counsel who guided him in giving his evidence. The plaintiff testified as PW1.
It was his testimony that he was a construction worker and that he had been employed by the
Defendant Company as a general worker. The Defendant Company did not issue him with
any employment documents; they used their identification cards to identify them when they
arrived. On the 17th of November 2012, he was working as an assistant to a mason who was
working on the roof. He had to use a ladder to deliver building material to the mason. When
he was climbing the ladder it broke and a nail injured his scrotum. As a result, he fell to the
ground.
His supervisor was informed and he was taken to Athi River Medical Services. He was
treated and discharged. The facility charged Kshs. 1000/= which was paid by the Defendant
company. I thought that by paying the Defendant Company was admitting liability. He went
back to work after one month, but later left the companys employment in February 2013.He
confirmed that his advocate had sent a demand letter to the Defendant Company but they had
not replied. He also said that though the injury had healed, he always felt pain when it was
cold and thus he wanted compensation from the Defendant Company.

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In such a case, generally the issues for determination would include, (1) whether the accused
person was an employee of the Defendant Company, (2) whether the plaintiff suffered any
injury, (3) Whether the plaintiff suffered that injury in the course of his employment with the
Defendant Company; and (4) who was liable for the occurrence of the said accident.
Therefore any other witnesses for the plaintiff would need to give evidence relevant to the
three issues mentioned above while it is the business of the defence to cast doubt on any such
evidence. Seeing as only one witness had testified, it was difficult to determine what issues
had been proved and which ones had not at this point.

IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

CIVIL CASE NUMBER 334 OF 2012
JANE KATHEU MUTEMWA

PLAINTIFF
Vs.

SILVER MIST AUTO LIMITED

DEFENDANT

Before Hon. TERESA A. ODERA, PM

Hg. 12/11/2013

The matter had come up for hearing of the plaintiffs case. It was the first time the matter had
come up for hearing, seeing as it started with the calling of the first witness for the
complainant. I could gather from the evidence being presented that it was a case arising from
a motor vehicle accident,(a PSV) in which the plaintiff sought compensation for injuries
suffered from the company that owned the motor vehicle.
The first witness was a Dr. Cyprianus Okere, who had performed a medical examination on
the plaintiff. His evidence was strictly of the plaintiffs condition when he examined her. He
actually read from the Medical summary he had come up with upon such examination, (with
a lot of medical jargon) which he later produced as P.EX 1. He said that in coming up with
the report, he had relied on medical summaries from Shalom Community Hospital, Athi
River and also Kenyatta National Hospital where she had been hospitalised before. He

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concluded in his summary that the harm suffered by the plaintiff was grievous. It could affect
her job as a teacher, seeing as her right humerus had been fractured, and though she could
still write when she healed, it was with difficulty. Further, her legs had suffered serious
injuries (compound fracture of the right tibia and fibula, injury to the right femur and a deep
cut on the left knee.) This made it almost impossible for her to stand for any period of time,
and when he examined her; she was on a wheel chair and had to use crutches. This first
witness was an expert witness called because he was the maker of a document that needed to
be produced in court. Further, it was necessary for him to justify his expert opinion and the
basis upon which he had come up with such opinion.
The plaintiff testified as the second witness. She said that she was a teacher at K.M.C
Primary School in Athi River. On the 12th day of March 2013, she was on her way to work.
She boarded a matatu and sat right behind the driver. They were travelling on a one way road.
She could not tell exactly what caused the accident, but she said that it happened between
three and five minutes after she boarded the vehicle. She found herself in Shalom Community
Hospital Athi River. She was in a lot of pain. She confirmed that the injuries she had suffered
were as those stated by the doctor. She showed to the court the visible scars on her legs. Due
to the weakness caused, she could not stand even as she gave evidence. Her wounds were
cleaned, stitched and dressed at Shalom Hospital, and she was x rayed. She paid a total of
Kshs. 2,500 for the aforementioned services. She also paid Kshs. 4,600 for the ambulance
that took her from Shalom Hospital to Kenyatta National Hospital. She produced receipts of
those amounts. She also produced a receipt of Kshs. 150,087 that she had spent at Kenyatta
National Hospital. The receipts produced of any amounts spent would be utilised in
calculation of special damages where any are granted.
She stated that she still attended physiotherapy. She also spent money on drugs, clinics and
transport to and from Kenyatta National Hospital. She produced receipts of the amount she
had already spent. Beyond this, she produced a receipt from her physiotherapist of future
costs of her physiotherapy. The defence counsel objected to the production of those receipts
as the maker of the documents was not called, so that he could satisfy the court on how he
had arrived at such figures. The plaintiffs counsel argued that they had served the
defendants with those receipts and had they taken issue with it, they could have raised that
during the pre-trial conference. However, the court opined that since the receipts consisted of

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expert opinion, the maker of the statement should have been called to justify such opinion.
The objection was thus upheld and the receipts could not be produced.

IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

CIVIL CASE NUMBER 49 OF 2013
CHRISPINUS MBELE NZAVI

PLAINTIFF
Vs.

SECURITY GROUP KENYA LIMITED

DEFENDANT

BEFORE Hon. P. OOKO, AG PM

Hg. 20/11/2013

The case had come up for hearing of the plaintiffs case. This was clear from the evidence
adduced before court by the witness called, who was the plaintiff in this case. It was the first
time the matter had come up for hearing. The witness was represented and was guided in
giving his evidence by his counsel.
He gave evidence that he was an employee of Security Group Limited and worked with the
Security groups Response Unit. He did not produce any employment documents. On the 27th
of October 2012, he together with other of his colleagues was sent to respond to an alarm
raised by one of their clients, Midgas Company. On arrival, they found that the security
guards at the premises of the aforesaid company had disappeared and the place was in
darkness as the lights had gone out. That being the case, they could not access the premises
through the gate as it was locked and there was no one to let them in. They were advised by
their control room to enter the place by jumping over the fence. It occurred that next to the
wall on the inner side, there were pieces of metal that had been piled. Due to the darkness
they did not see them and proceeded to jump. When the plaintiff jumped, a piece of metal
injured his leg. His friends tried to extract it but failed. They asked for help from their
employer, Security Group Limited which responded by providing a vehicle which took him

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to Nairobi West Hospital. He was admitted and stayed there for five days after which he was
discharged. He produced a discharge report from the aforementioned hospital, a medical
report from a Dr. Mutua Nduku who examined him and a receipt of Kshs. 2000/= which was
charged by the Doctor.
Asked why he blamed his employer, he said that they did not provide him with any tools of
work, for example torches, helmets or long boots, which would have prevented the
occurrence of such an accident. As a result of the accident, he could not walk for long
distances any more.
It was clear from the evidence adduced that the plaintiff was seeking compensation from his
employer for an injury suffered in the course of his employment. In such a case, he had to
establish that he was indeed employed by the defendant company, that he suffered the injury
in the course of his employment and that the said injury was caused by the negligence of the
defendant company. The plaintiff had given evidence relevant to all the three issues.
The defence counsel cross examined the witness on a previous inconsistent statement.1 His
attention was drawn to his witness statement which was to the effect that he had left the
employment of the Defendant Company. In court he had said that he was still employed by
the Defendant Companys Response Unit though he was assigned lighter tasks because of the
injury. This was an attempt to impeach the credit of the witness.2 Further he stated in his
cross examination that upon employment, he took the job with the knowledge of the risks that
came with it and confirmed that they were not provided with any protective gear when they
went to work on the material night.

1
2

Section 153 of the Evidence Act, Cap 80 Laws of Kenya.

Ibid. s.163(1)(c)

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IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

CIVIL CASE NUMBER 595 OF 2012
MOSES MUTEMWA KASUMBWI

PLAINTIFF
Vs.

SPLENDOUR CONSTRUCTION

DEFENDANT

Before Hon. P.OOKO, AG. PM

Hg. 18/11/2013

The matter had come up for hearing of the plaintiffs case. It was also of an employee seeking
compensation from his employer for an injury suffered in the course of his employment at
their premises.
The plaintiff testified that he had been employed by the Defendant Company as a casual
labourer. On the 20th of November 2012, he and four of his colleagues were ferrying pieces
of metal on a wooden ladder. The ladder broke and fell into pieces which caused all the five
men to fall to the ground. The plaintiff fell on his stomach and his colleagues fell on his back.
Consequently, he suffered injuries on his chest and his back.
His supervisor gave him permission to seek treatment and he went off to Athi River Health
Centre. He produced treatment notes dated the same day as P ex. 1. He was also given two
days sick off but upon the expiry of such period, he did not go back to work for the
Defendant Company. The Plaintiff maintained that he blamed the company for the injury as
the ladder they were working on was not properly maintained and thus was dangerous to
work with.
Upon cross examination by the counsel for the Defendant, he stated that he was not issued
with any employment documents by his employer. Further, he confirmed that though he
knew the ladder was not well maintained, he had not complained to his employer about its
condition. These were also confirmed during re- examination by his own counsel.

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1B. CRIMINAL CASES

IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO
CRIMINAL CASE NUMBER
REPUBLIC

PROSECUTOR
Vs.

KICHAM PULUNG

ACCUSED

Before T.A ODERA, PM

Hg.13/11/2013.

The matter had come up for hearing of the prosecution case. Having not heard the evidence
of PW1 (the complainant), it was a bit hard to figure out what offence the accused person had
been charged with. However, as the matter proceeded, it was clear that the accused was
charged with the offence of robbery with violence.
PW2 was the wife to the complainant, Mrs. Eunice Ndindi. She testified that at 12: 00
midnight on the 24th of February 2013, she had not gone to sleep yet as she was awaiting her
husbands arrival from work. Unknown people knocked on her door and informed her that
her husband was hurt. They said this from outside as she had refused to open the door for
them. The people said that he was at a place called Mawepi, around 200 meters away from
where she lived. She asked her son to accompany her to the said place. They did not
immediately find him and so they looked for him around the place for a while. They heard
him asking for help and when they found him, he was on his feet. He was bleeding from his
forehead and back of the head. A car was provided by East African Portland Company which
was his Employer. They took him to The Mater Hospital where he was admitted for seven
days. He was discharged on the 3rd of March 2013. He was taken back to the same hospital
the following day, and was transferred to the Aga Khan Hospital on the 5th of March 2013.
When he was attacked, he lost his phone and Kshs. 5000/=. The witness identified the said

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phone in court. She also identified the accused person who she said she met at the police
station.
PW3 was Naipande Moigae. She was the accused persons mother. It was her testimony that
on the 25th of February 2013, her son went home at around 4:00pm and gave her a phone.
She took it but because she was not able to use it as she was illiterate, she gave it to her
daughter after around two weeks. On the 26th of April 2013, around 5:00PM, police from
around Kitengela arrested her from her home in Loitoktok, alleging that she had a stolen
phone. She was arrested together with her son (the accused person), her daughter and her son
in law.
PW4 was Nalosimei Lepulung, the accused persons sister. She testified that she had been
given a phone by her mother in the month of April. She did not know where the phone had
originated from. However the phone did not have a sim card. Before she could buy a sim card
for herself, she gave the phone to her husband who put a sim card in it and started using it. He
used it for about two weeks before he, his wife (the witness), his mother in law and his
brother in law were all arrested in Loitoktok by officers from the Criminal Investigation
Department in Kitengela.
PW5 was Mayiani Olejoon. He said that he was a farmer from loitoktok and that his wife
was PW4. He testified that she had given him a phone that had been given to her by her
mother. He used it with his sim card until one day police officers followed him to his shamba
and arrested him. They asked for his phone which he had left at home. He was taken to
Kitengela Police Station.
The evidence adduced was an illustration of an investigation properly carried out. It was
consistent in pointing toward the source of the phone. It was also a sad case of a family
dragged to court by one of their own. This was especially clear when the accused person had
to cross- examined his own mother and sister. However none of the prosecution witnesses
who testified on that day saw the accused person attacking the complainant.
Going by the evidence that was adduced on that day only, I thought the case against the
accused person could be proved by the doctrine of recent possession.3 The doctrine is to the
effect that where an accused person has been found in possession of property very recently

This presumption arises from Section 119 of the Evidence Act, Cap 80 Laws of Kenya

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stolen, in the absence of an explanation by him to account for his possession, a presumption
arises that he was either the thief or a handler by way of receiving. His possession raises a
presumption of his guilty connection with any further crime that accompanied the theft, such
as burglary, robbery or robbery with violence4. It is pursuant to this doctrine that everybody
who had come into contact with the said phone was arrested i.e the accused person,PW3,
PW4 and PW5. The witnesses were able to give an account of how they had come into
possession, and all their accounts pointed to the accused person being the source of the
phone.

IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

CRIMINAL CASE NUMBER 937 of 2013
REPUBLIC

PROSECUTOR
Vs.

JOHN WAMBUA LETOTO

1st ACCUSED PERSON

PATRICK MWENDO

2nd ACCUSED PERSON

Before Hon. LINDA A. MUMASSABBA, RM

Hg. 29/10/2013

The matter was called for hearing of the defence case. The second accused person had legal
representation while the first accused person did not. It was not possible to tell what the case
was about from the evidence adduced by the accused persons. It was only possible to tell
after cross examination because the prosecutors line of questions brought out clearly what
the subject of the case was.
The first accused person was guided in giving his evidence by the court, seeing as he was not
represented. He identified himself and went on to say that on the 21st of August 2012, he
woke up as normal and went to work. At around 10.00AM, a gentle man went to his place of
work with a motor bike which had a puncture. There was a big box on the motorbike. A
4

Chaama Hassan hasa (1974) KLR,6

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passer-by asked whose box it was and the accused person said it belonged to the motor cycle
owner. On being asked, the motor cycle said that the box was not his. The accused was then
arrested by members of the public. The accused was cross-examined by the prosecutor as
well as counsel for the second accused person. Upon cross examination, the accused said that
he did not know about any goats. He also denied that he was arrested for theft of goats. At
this point, it was clear that the accused persons had been jointly charged with stock theft. The
accused person did not mention anything at all to do with goats. He further stated that he had
not known the second accused person. He only knew of him at the Police Station.
The second accused person was guided in giving his testimony by his counsel. He said that he
was arrested on the 18th of September 2012 at 9:00 AM from his home. He was arrested for
theft of two goats, which were found in his homestead. He said that he also owned sheep and
that the two sheep had come home together with his 27 sheep the previous evening. He also
testified that he had noted that the two sheep were strange as they were both male and he
owned only one male sheep. However, he did not know whose sheep they were. The son of
PW1 (Julius) went to his home that evening and reported that his father had lost some sheep.
The accused person told him that there were two strange sheep in his pen, and PW1s
identified them as theirs. Subsequently, the two sheep were picked from his pen the following
morning at around 8:00AM. At around 9:00 AM, PW1, his son and some policemen went to
his home and alleged that some other 12sheep were missing and that he would pay for them.
He was then arrested. Upon cross examination the accused confirmed that sheep do mix up a
lot especially when drinking water. Most importantly, he said that he did not know the first
accused person.

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IN THE PRINCIPAL MAGISTRTATES COURT AT MAVOKO

CRIMINAL CASE NUMBER 406 OF 2013
REPUBLIC

PROSECUTOR
Vs.

GEOFFREY NZUO MWAU

ACCUSED

Before Hon. LINDA A. MUMASSABBA, RM

Hg. 28/10/2013.

The matter had come for hearing of the prosecutions case. The accused person was not
represented by counsel. He was charged with obtaining money by false pretences though this
was only clear after hearing the complainants evidence.
The complainant (PW1) testified that she was Bilha Mbugua and worked as a charcoal seller.
On the material day, she was at her workplace. The accused person approached her posing as
a buyer. He wanted to take charcoal from her on credit. Having never met him before, he
asked her colleague who worked next to her whether she knew him. Her colleague vouched
for the accused person, saying that he was credit worthy. The accused placed the first order of
75 bags of charcoal. He paid Kshs. 50,000/= in cash at that point and was left with a balance
of Kshs. 18,000/=. He left and later on placed another order of 149 bags, worth Kshs. 134,
000/=. He therefore owed her a total of Kshs. 163,000/=. He did not pay according to the
terms they had agreed upon and the complainant sought to reach him by phone. He made
several promises to pay but never honoured them. It is then that she decided to report the
matter to Athi River Police Station. The accused was found in Ukambani with the help of the
police and the local area chief.
The accused in this case cross- examined the complainant himself as he was unrepresented.
He wanted to know whether she had any documents to show that she had transacted with him
in any way. It occurred that she did not have any documentary evidence in court to show that
she had dealt with the accused in any way. However, she did say that she kept a note book
where she noted the number of bags taken and the amount of cash owed by her debtors. She
had left the same at home and could not produce it at the time she was testifying. Notably, the

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prosecution failed to apply to the court for leave to recall her in order that she could produce
that notebook5. This clearly left a big gap in the evidence of the prosecution.
Further, she could not confirm whether the bags actually got to the accused person or whether
she had dealt with him in person. There arose an issue of identification as there was not
another witness before court who could identify him on that day. The accused person was
able to properly attack any evidence of identification adduced by the complainant. For the
prosecution to establish a case against the accused in this matter, it will have to show that the
accused person had made a false pretence, that he had intent to defraud when he did so and
that as a result he induced to himself the delivery of a thing capable of being stolen. It was
too early to determine which of the issues they had proved to the required standard.
This was a case where the presiding magistrate took time to advise the parties to seek an out
of court settlement for the matter. Besides, the complainant confirmed that all she wanted
was to get her money back. According to the magistrate, the matter looked more like a case
of a business deal gone sour rather than a case of obtaining money by false pretences.
However, she was keen to remind them that she would not mind proceeding with the matter
to full hearing if they so wished, or if they failed to reach an amicable solution by themselves.

Supra n.3 at s.146(4)

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IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

CRIMINAL CASE NUMBER 784 OF 2013

REPUBLIC

PROSECUTOR
Vs.

STEPHEN KIMARU MWANGI

1st ACCUSED PERSON

STEPHEN MBURU

2nd ACCUSED

Before Hon. LINDA A. MUMASSABBA, RM

Hg. 16/10/2013, DHg. 1/11/2013.

This was a case of theft of a motor cycle. It had come up for hearing of the prosecution case.
Only the arresting officer was yet to testify for the prosecution.
He testified that he was an Administration Police Inspector Edward Mwangi. He was a night
duty officer on the 12th of July 2013. He got a distress call from people who complained that
some sheep and goats had been stolen. He drove to the site with some of his colleagues at
around 12.00 midnight. They found members of the public outside and they organised a
search party. They followed footsteps and before they had gone for long, they saw lights
coming from the direction of Embakasi. As it was late at night, they stopped it. It was a
motor cycle with two gentlemen, one the cyclist and the other was seated behind him. They
could not explain where they had been coming from and they were taken to Athi River Police
Station. The motor cycle was registration number KMCW 584 A, of make boxer and blue in
colour. He identified the same as the one that was before court on that day. He was also able
to identify the accused persons in court.
The prosecution case was closed at this point. The court ruled that in view of the evidence
adduced by the prosecution, the accused persons had a case to answer. The clerk explained to

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them the three ways in which they could defend themselves. They both chose to give sworn
testimony without calling any witnesses. They also sought an adjournment so that they could
have time to prepare their defence. The matter was adjourned to the 1st of November 2013 for
defence hearing.
On the said date, the accused persons were guided in giving their defence by the court as they
were not represented. The first accused person testified that he lived in Athi River and that he
earned his living by ferrying water. On the 13 of July 2013 at around 5:00AM, he was going
to work when he met three police officers who asked him where he was going. He said they
asked him for his identification card which he did not have. They then asked him for Kshs.
500/=, after which they told him to go to Athi River Police Station. On the 15th of July 2013,
he was brought to court and charged with an offence he did not know. He did not know
anything to do with a lost motor cycle.
Upon cross examination by the prosecution, he said that he did not know the second accused
person and that he had only met him at the station when he was arrested.
The second accused testified that he lived in Makadara and that he earned his living by
selling tea in Marikiti. On the 12th of July 2013, he woke up at 4:00 AM to go to work and on
his way to the Makadara stage he saw five people in front of him. They stopped him and they
took him to Athi River. One of them found Kshs. 2000/= in his pocket and he demanded for
Kshs. 1000/=. He refused and he was then taken to Athi River Police Station. He was later
arraigned in court and asked to plead to charges he did not know. Upon cross examination, he
said that he had been arrested alone and that he did not know the first accused person, whom
he said, found him at the police station.
From the evidence tendered by the accused persons in their defence, they sought to distance
themselves from the motor cycle.

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IN THE PRINCIPAL MAGISTRATES COURT AT MAVOKO

SEXUAL OFFENCE NUMBER 9 OF 2013
REPUBLIC

PROSECUTOR
Vs.

MARTIN KIMANI

ACCUSED PERSON

Before Hon. LINDA A. MUMASSABBA, RM

Hg. 8/10/2013

This was a case of defilement. The matter had come up for further hearing of the
prosecutions case. The accused person in this case was unrepresented.
The first witness on this day was PW3. She was a neighbour to the complainant and a friend
to the childs mother. She testified that on the material day at around 7:00PM, she asked
another neighbour if she had seen the child, and she was informed that the child had been
seen going out with the accused person. She went around looking and asked another person, a
security guard guarding a club if he had seen them. The guard said he had not and as she was
proceeding, she passed by an empty stall and saw the accused person through the window of
the stall. She moved nearby and peeped. It was then that she saw the accused defiling the
child. She said that the child was leaning on a table in the stall with her skirt lifted up, while
the accused was standing in front of her and also leaning on a pole. The stall was made of
poles and was covered all around with a black paper bag. The accused did not see her, and
while moving away from the scene, she raised alarm. She called people to go and see what
the accused person was doing to a school child. A few people responded to her alarm, but by
then the accused person had disappeared. She also testified that it is she who informed the
accuseds mother of the occurrence. Further she confirmed that she knew the complainant
had not slept at their home on that day. She had seen the accused person before this but had
never talked to him.
PW4 was the mother to the complainant. She earned a living by cooking and selling chips by
the roadside. The accused person was one of her customers and they had known each other

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for a while. She testified that she had been informed that the accused had defiled her daughter
by PW3. She tried reaching the accused by phone as she had his number. He refused to pick
up his phone and after three tries, she sent him a message asking him what he had done to her
daughter and also asking her where she was. He did not reply. She confirmed that her
daughter had not slept at home that night and that they picked her from her aunts place in
Saitoti the next day. She took her daughter to the police station and was given a P3 form, and
thereafter to hospital. She further testified that the accused person knew her children and that
her last born called him uncle. He had once given them money to buy sodas and she had
warned him never to give her children money again.
From the evidence tendered, it was clear that the accused person was familiar with the child
and her family. In cross- examining PW4, the accused person raised an issue as to her
credibility by attacking her character6. He asked her whether it was untrue that she had been
pursuing him with the intention of having a love affair with him. He also asked her whether it
was not true that she had borrowed money from him and he had refused to give it to her. She
replied to these in the negative.

QUESTION 2
REFLECTIVE/ANALYTICAL ASSIGNMENT
i.

Court room settings reflect the role of every participant in any trial. My idea of a court
room was a very elaborate place where every participant knew their place, where
there was a place for the magistrate, other officers of the court, the accused person,
the witnesses, and for the public in general. The real picture is not much different
from what I had in mind. In one court room, there was a desk for the magistrate, a
table for the clerk and prosecutor. There was a dock for the accused person and a
witness stand for witnesses to stand in when giving their testimony. The dock was
positioned opposite but several paces apart from the witness stand. This clearly
prevents any contact between the accused person and the witnesses. It however puts
them within hearing and speaking distance of each other for the purpose of cross

Ibid. s154(c)

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examination, where the accused is not represented. Besides, it also gives the witness
the feeling that they are protected from the accused person.
As there was no place set apart for advocates, the advocates in both civil and criminal
cases took the front most available seats. When they were on their feet conducting any
form of examination or making submissions, they stood where they could be heard
and seen by the court, the witnesses, the accused persons and any other interested
parties. This brought them to the middle of the participants. This way they could
interact with either of the parties to the trial.
Most importantly, I observed that space is a very important element of a court room
setting. I was attached to a court where the only furniture was the magistrates desk,
the clerks table and benches. There was neither a dock nor a witness stand. Every
other person had to sit together on benches. There was only little space between the
accused person and the witnesses as they testified. The advocates took the front most
seats. However, when the court was handling civil matters, there were too many of
them and they had to stand on the aisle all the way to the back.
This is probably because the courts are just one year old and one court room is still
housed in a container.
ii.

The opposing counsel always paid attention to the on- going cross examination. In
most cases, I observed that they always noted down the questions asked during cross
examination. Given the nature and purpose of cross-examination, listening enables the
opposing counsel to know whether they will re- examine the witness and if so, what
line of questions they will adopt.
Beyond this, the opposing counsel would detect any new issues that arose in cross
examination. They would then decide whether they would build on or disregard these
issues in re-examination.

iii.

I did not observe much non- verbal interaction between the witnesses and counsel.
However, I observed that most witnesses were scared even before taking the witness
stand to testify. For this reason, I thought a softer approach would have worked for
the witnesses in court.

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iv.

2013

Interruptions did happen, but not often. At this point, it is necessary to point out that
in my attachment, 99% of the accused persons were not represented. On the other
hand, all plaintiffs were represented. Consequently, cross examination in criminal
cases was conducted by the accused persons themselves. They often veered off the
subject matter and the court was often forced to forbid them from asking unnecessary
questions. This is in accordance to the power granted to the courts by section 160 of
the Evidence Act7. Many a time, the court advised them to ask questions that would
be helpful to their case. This often brought them back on track or put an end to their
questions all together.
On the other hand, plaintiffs in civil cases were always cross examined without much
interruption from their counsel. I thought this was probably due to the simple and
direct nature of most of the cases. Cross examination mostly dwelt on time lines, dates
or whether something or the other had been provided or not.

v.

Of the cases I observed, I noted that in civil matters, the counsel were keener on
getting information from the witnesses and not discrediting them in any way. They
were calm and asked questions quietly. There was not much use of sound effects to
create any particular impression on the audience. Moreover, due to similarities in
most of the cases before the court, counsel dwelt on the same line of questions in
cross examination.
In criminal cases, as much as most accused persons were unrepresented, there were
advocates who applied tone of voice and intonation very effectively. In the case of
Republic V Pius Mutisya, 8the advocate for the accused person, a Mrs. Nzii was very
forceful in her cross examination. She raised and lowered her voice appropriately. She
frowned a lot, but also smiled a bit to disarm the witnesses. Her cross examination
did bear fruit, but I could not help but note that she really scared off some of the
prosecutions witnesses.

vi.

The counsel aimed at discrediting the witnesss testimony and not the witness. In the
case mentioned above, the accused person was charged with theft of construction
wire. His counsel did manage to establish before the court that none of the

Chapter 80 Laws of Kenya

CR. 218 OF 2013

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prosecution witnesses saw the accused person taking away the wire from where it had
been left by its owners. She aimed at discrediting any evidence adduced to the effect
that the accused person had been seen taking the wire or carrying it away. She
therefore attacked the prosecutions evidence with regard to asportation, which is an
important element of the offence of theft.
She particularly attacked the evidence of PW4, a Mr George Kaleli. The witness said
that he had seen the accused person standing by his motor bike with another person
loading the wire on it. She did so by putting it to the court that the accused person
was a boda boda operator, and it was his job to ferry luggage for people. Seeing
somebody loading a wire on his motor bike did not therefore point in any way to his
having stolen the wire. He could have been doing his job.

The following is in answer to parts (viii) to (xi)

I did observe differences in the approach of the counsel to lay witnesses and expert
witnesses. All the expert witnesses I saw were doctors. They appeared in civil cases to
testify as to the nature and degree of injuries suffered in motor or industrial accidents.
Their answers were very factual and as a result, short and to the point. This is
probably because they were also backed by a lot of documentary evidence like
receipts and medical reports. In fact, most of the doctors read from what they had
written in their medical reports. Sometimes, their evidence had a lot of medical terms
that they had to explain. For example, in the case of Jane Mutemwa vs. Silver mist
Auto Ltd9, the doctor had to explain what compound fractures and k-nails were. In
most cases, they were very clear and precise. They answered questions as they were
asked. For this reason, the opposing counsel did not spend much time cross examining
the expert witnesses. Their questions were almost always the same in each case. They
revolved around whether an injury would cause permanent deformity, and whether the
plaintiff had complained of any pain during examination.

In criminal cases, doctors were called in cases of assault causing actual or grievous
bodily harm and sexual offences. In these cases, they were also required to testify as
to the nature of injuries suffered they observed on the complainants and most
importantly, produce the P3 forms that they filled. In the case of Republic Vs. Cecilia
9

CC no.334 of 2012

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Kwamboka10, the doctor who filled the P3 form that was produced in court by the
counsel for the accused person was not called to testify. Furthermore, the P3 form was
not signed by the police officer who issued it to the accused person. I thought the two
factors rendered it inadmissible, because a P3 form is not evidence in itself; it is the
evidence of the witness concerned, which witness is the doctor who filled the form.11
Further, their evidence was very necessary in cases of rape and defilement. This is
because their testimony is very relevant to the question of penetration, which must be
established if any of the offences mentioned above is to be proved.

10
11

Cr. 672/2013
Seifu Juma Mohammed vs. R

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