[2023] KEHC 26387 (KLR)

Angugo v Republic (Criminal Appeal 74 of 2018) [2023] KEHC 26387 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEHC 26387 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal 74 of 2018

MS Shariff, J

October 31, 2023

Between

Kelvin Otieno Angugo alias Stephen Otieno Kalika

Appellant

and

Republic

Respondent

(An appeal arising from the conviction and sentence by Hon. R. S. Kipngeno (SPM) in Maseno SPM Criminal Case No. 724/2016 delivered on 10th July, 2018)

Judgment

Case Background: 1. The Appellant was charged in the subordinate court with the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars were that on 8th January, 2016 at about 7pm at Tiengre in Kisumu West sub-county within Kisumu County the Appellant unlawfully killed George Ochieng Okudo.

2. Upon arraignment, the Appellant pleaded not guilty and the case proceeded to hearing where evidence was adduced as follows;

3. PW-1 Vincent Ochieng stated that the deceased had come to the shop to collect a debt from the workshop owner one Geoffrey Owich, when a man came to the workshop’s door and called out the deceased who in response went outside to give that person some money and that was when he heard Omondi yelling out loudly whereupon his boss went outside to establish why Omondi was yelling. When the boss came back, he informed him that the deceased appeared to have suffered an epileptic attack as he was laying down and had urinated and defecated on himself.

4. When he went outside to check, he found the deceased and the person who had been yelling “Omondi”. This witness said that his boss, the workshop owner then called the wife of the deceased who came and they took the deceased to Port Florence Hospital from where he was referred to Russia Hospital (JOOTRH). The next day, he got information that the deceased had passed on.

5. PW-2 Omondi stated that he saw the accused hit the deceased with metal rod on the shoulder and when the deceased fell down the Appellant strangled him with his hands. Thereafter, a one-eyed man passed nearby and found the deceased unconscious. That he ran away and called for help. The deceased was taken to the morgue. The Appellant ran away with the metal rod.

6. PW-3 Alice Awino stated that on 8/1/2016, she received a call from her sister asking her to rush to the shopping centre as her husband had been killed by Kevin. When she went to the scene she found the deceased being assisted to board a tuk-tuk. Blood was oozing from his mouth and his throat was swollen. At the scene, there were no security lights save for those from the shops which were too dim to light up the area. They took the deceased to Port Florence Hospital before being referred to JOOTRH. The following day at 4 am, she was informed that the deceased had died.

7. PW-4 Dr. Mbadi Florence from JOOTRH presented a post mortem report which showed that the deceased died from severe anemia/hemorrhagic shock as a result of loss of lots of blood. The report was produced into evidence.

8. PW-5 PC Robert Sigei from Maseno Police Station testified that he was informed by the OCS of an incident at Tiengre area. That on 12/1/2016, he visited the scene and interrogated witnesses. That from the testimony he got, they started looking for the Appellant who was arrested in Chemelil area. Investigations had revealed that the cause of assault was a disagreement over the payment due to the Appellant for some construction work that he had done for the deceased who happened to be his brother.

9. At the conclusion of the defence case the trial magistrate put the Appellant on his defence whereupon he elected to give unsworn evidence to the effect that he had undertaken some construction work for his brother, the deceased, but the latter refused to pay him and he instead beat up the Appellant. Further that the deceased then asked his wife to give the Appellant Kshs 100/- which the latter declined. The Appellant stated that when he later went to the shop to take some items on credit he met the deceased. He confronted him to establish why he had earlier on beat him but the deceased grabbed him whereupon he slapped the deceased who then sat down. That thereafter, he went home in Chemelil to report the incident. He later learnt of his death while in Chemelil and he got shocked as he was accused of killing him.

10. Upon evaluating the evidence of the parties the trial court found the Appellant guilty and sentenced him to 15 years imprisonment.

Appeal: 11. The Appellant being dissatisfied, appealed against the decision of the trial court on the following grounds;a.The trial court erred by convicting him based on the prosecution’s evidence that was contradictory and inconsistent.b.The trial court erred by basing his conviction on a single eye witness.c.The trial court erroneously convicted him by failing to give his defence statement due consideration whereas the same was capable of handing him an acquittal.

Analysis and Determination: 12. This court being a first appellate court, I am guided by the holding in Kiilu & Another Vs. Republic [2005]1 KLR 174, where the duty was stated thus;An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.

13. With the above in mind, I have carefully perused the entire record and the issue then in this appeal is whether the prosecution proved its case to the required standards; that is, beyond reasonable doubt. I note that despite the court’s direction that the appeal be disposed of by way of written submissions, there is none on record for the Appellant. Nonetheless, my duty as a first appellate court is to re-evaluate the evidence and arrive at my own conclusion.

14. The evidence before the trial court is as captured in the preceding paragraphs and I need not repeat them.

15. Section 202(1) of the Penal Code provides that;Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.

16. The court in Musee Joseph Musyoka v Republic [2014] eKLR held thatMy understanding of this definition is that the prosecutor who bears the burden of proving a criminal case against the accused person must, in a crime of manslaughter, prove that the deceased died as a result of unlawful act or omission and that the Appellant is responsible for the unlawful act or omission causing the death.

17. Section 202(2) defines unlawful omission as;An omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

18. The evidence adduced at the trial court was that the Appellant met the deceased at the shopping centre and called the accused outside PW-1’s workshop. Thereafter, the witness was alerted by a loud yell. On checking outside, he saw the deceased was sweating, had wetted and soiled himself and could not talk. PW-2 on his part, a deaf and dumb witness stated that he saw the deceased giving the Appellant some money whereafter the Appellant hit the deceased on the shoulder and when the deceased fell down the Appellant still pursed him and strangled him. The Appellant who then had dreadlocks thereafter ran away with the metal rod.

19. As far as I can comprehend, the above witnesses were at the scene of crime and their evidence were corroborated by the medical evidence adduced by PW-4 which showed that the deceased died of a fracture on temporal region on the meningeal region. This goes to support PW-2’s evidence that the deceased was hit with a metal rod which the Appellant ran away with.

20. As it is, the 2 witnesses put the Appellant at the scene of crime. The testimony that the Appellant wanted money from the deceased and this can be confirmed from PW-2’s cross examination.

21. It is noteworthy that from the Appellant’s defence, he indeed confirmed that the deceased had beat him up early that day and refused to pay him. He admitted that he slapped the deceased when the deceased grabbed him.

22. In light of the evidence above, it is clear that the Appellant indeed caused the deceased’s death.

23. Looking at the grounds of appeal, the Appellant contends that the prosecution’s evidence was contradictory. I have perused the record and find no material contradiction in the matter. This ground is therefore rejected.

24. The other ground raised is that the trial court relied on the evidence of a single eye witness. On this ground, I have perused the record and indeed, there was only 1 eye witness PW-2 who witnessed the incident. The other witnesses got to know of the incident through other witnesses.

25. It is trite law that the prosecution is not under duty to call any number of witnesses provided that the witnesses called have proved their case. This is the enactment under Section 143 of the Evidence Act, Cap. 80 which states that:“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

26. These provisions were re-stated in Benjamin Mbugua Gitau v Republic [2011] eKLR where it was held that:“This Court has stated severally that there is no particular number of witnesses who are required for proof of any fact unless the law so requires – see section 143 of the Evidence Act Cap 80 laws of Kenya. In the circumstances therefore we find that no prejudice was caused to the Appellant or to the prosecution by failure to call the two boys.”

27. In the circumstances, I find this contention by the Appellant to be without merit.

28. On the issue of the failure by the trial court to consider the Appellant’s defence, the trial court record shows that the trial court indeed made no mention of the defence tendered by the Appellant. In his defence, the Appellant testified that he slapped the deceased after the deceased allegedly grabbed him. There is no other witness who testified to this fact other than the Appellant himself. He stated that when he heard of the death of the deceased, he was shocked and dismayed.

29. From his evidence, it is clear that the deceased and the Appellant are siblings. There is no evidence that the deceased attacked the Appellant before the fatal strike.

30. Having considered the Appellant’s defence, I have no doubt that he indeed acknowledges assaulting the deceased though his intention may not have been to fatally injure him. Death nonetheless occurred and he must be held to account for that.

31. In the circumstances, I find the defence does not exonerate the Appellant of the offence.

32. In mitigation, the Appellant asked for forgiveness that he had not planned to kill the deceased.

33. It is trite that mitigation plays a key role in sentencing the offender. It relays the Appellant’s remorsefulness in the manner in which the offence occurred.

34. I have equally taken in account the sentencing policy guidelines particularly that a sentence ought to be inter alia retributive and rehabilitative to the offender.

35. Although the Appellant did not challenge the sentence meted out, I find that he is entitled to a lenient sentence commensurate to the offence committed.

36. I therefore set aside the sentence of 15 years handed down and substitute therewith a prison term of 10 years to run from the date of conviction. The provisions of Section 333 (2) of the Criminal Procedure Code have been duly taken into account in that reduction of sentence.

37. It is so ordered.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF OCTOBER 2023. MWANAISHA S. SHARIFFJUDGE