Court acquits matatu driver in assault of 'drunk' passenger case

A Nyeri court has acquitted a matatu driver of assault and malicious damage charges after finding the prosecution's case uncorroborated.

Senior resident magistrate Mary Gituma ruled that the state had failed to prove beyond reasonable doubt that Stephen Nderi assaulted Isaiah Wanjau during a fare dispute on June 2.

The magistrate said that the complainant was the only prosecution witness to give an account of how the incident occurred and his evidence was not corroborated. 

Nderi was charged with assault causing actual bodily harm and malicious damage to property.

The court heard that the complainant boarded a matatu driven by the accused at around 6 pm in Gatitu township, Nyeri. 

The complainant testified that he asked the driver for the M-Pesa number to pay his fare but received no response. 

When he asked again, Nderi pulled over and ordered him to alight—which he did—before the driver punched him in the face, damaging his eyeglasses valued at Sh22,000.  

“PW1[ Wanjau] told the court that he boarded a motorcycle and went to the police station to report the matter. He claimed that he had no issues with the driver and he did not understand why the driver assaulted him,” court documents show. 

“Upon cross-examination, PW1 (prosecution witness 1) admitted that other people saw the accused assault him.”

But Nderi, in his defence, gave a different account. 

He told the court he knew the complainant, who boarded his vehicle and sat at the front beside a female passenger.

"He claimed that the complainant appeared drunk. After [driving for] about 100 [metres], a commotion ensued between the complainant and the lady.

“The accused was forced to stop the vehicle. He stated that he requested both the complainant and the lady to alight.”

The accused told the court he left the two and went on his way, only to be called to the police station later and informed of the complainant's report. 

He was then arrested and charged. 

Nderi maintained he had no grudge against the complainant and denied committing the offences.

“He admitted that the conductor he had on the said date is not a witness in this matter.” 

On the first count, the court observed that the incident occurred in a public service vehicle with other passengers present, yet no additional witnesses were called.

“The complainant was the only prosecution witness that gave an account of how the incident occurred. His evidence was not corroborated,” magistrate Gituma said.

"In this case, the prosecution ought to have called additional witnesses to demonstrate that the accused assaulted the complainant such as the persons who were present in the vehicle when the incident occurred." 

While the court accepted that the complainant sustained bodily harm—medical evidence showed both his cheeks were swollen and the degree of injury was assessed as harm—the prosecution failed to link the injuries to the accused. 

"I find that although the complainant sustained bodily harm, the state failed to prove that it was the accused who assaulted the complainant. This charge fails." 

On the second count of malicious damage to Wanjau's eyeglasses, the magistrate found the charge hinged on the alleged assault. 

"Having found that there is no sufficient evidence to show that the accused assaulted the complainant, it follows that the charge of malicious damage cannot stand. Therefore, this charge must also fail." 

The magistrate acquitted the accused of both counts, granting 14 days for appeal.