[2024] KEHC 4208 (KLR)

AR v Republic (Criminal Appeal E045 of 2022) [2024] KEHC 4208 (KLR) (11 April 2024) (Judgment)

Neutral citation: [2024] KEHC 4208 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal E045 of 2022

PN Gichohi, J

April 11, 2024

Between

AR

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence in Molo Chief Magistrate’s Court Criminal Case No. E292 of 2021 delivered Hon. R. Yator PM on 29th June 2022)

Judgment

1. AR (herein referred to as the Appellant ) was charged in the Molo Criminal Case No. E292 of 2021 with the offence of Attempted Murder contrary to section 220 (a) of the Penal code. The particulars of the offence were that on 27th January 2021 in Kuresoi South Sub-County within Nakuru County, unlawfully attempted to cause death of Danol Kirui by stabbing him with a knife on his neck.

2. The Appellant denied the charge paving way for hearing and in support of its case, the Respondent called five (5) witnesses while the Appellant was the only witness for his case. At the conclusion of the case, the Appellant was found guilty and sentenced to serve 25 years imprisonment.

3. Aggrieved, he appealed to this Court of Seven (7) grounds . Upon Mr. Bore coming on record for the Appellant, the Court allowed him to file supplementary grounds of appeal. The appeal herein is therefore on Four (4) main grounds.1. That the learned magistrate erred in law and fact by failing to inform the appellant of his right to be represented by Counsel thus violating his fundamental right to a fair trial under Article 50 (2) (g) of the constitution.2. That the learned magistrate erred both in law and fact by convicting the appellant on account of insufficient evidence laden with glaring contradictions, gaps, inconsistencies, falsehood, uncorroborated evidence and which evidence in totality did not meet the threshold of proof reasonable doubt.3. That learned magistrate erred both in law and fact by relying on photograph (Pexh8) which was unlawfully prepared and produced in court in contravention of Section 87 of the Evidence Act -Cap 80, Laws of Kenya.4. That the learned magistrate erred both in law and in fact by harshly and unlawfully sentencing the appellant to the minimum sentence provided for under the law, which sentence capture the mitigation adduced by the Appellant, did not reflect the appellant’s previous record and which went against the weight of the evidence adduced.

4. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions on 28/07/2023. He submitted on each of the four grounds of appeal.

5. On the first ground, he submitted that despite that the Appellant was facing life imprisonment, which is a severe penalty, the court did not inform the appellant of his right to be represented by Counsel nor warn the Appellant of the dire severality of the sentence facing him on conviction. He termed this a violation of Article 50 (2) (g) of the Constitution.

6. In support of that argument, Counsel cited several decisions among them being the Supreme Court decision in Republic v Karisa Chengo & 2 others [2017]e KLR that “the right to legal representation… under the said Article is a fundamental ingredient of the right and is to be enjoyed pursuant to the constitutional edict without more.”

7. On the second ground, Counsel rehashed the evidence by the five Prosecution witnesses and submitted that in order to discharge its burden beyond any reasonable doubt, the Respondent was obligated to adduce evidence and present witnesses in court whose evidence must be consistent, credible, incontrovertible and without contradictions but the Respondent failed to do so. In this regard, Counsel highlighted the inconsistencies and contradiction of each of the five witnesses.

8. On the third ground , Counsel emphasised that by producing photos to show the extent of the Complainant’s injuries, Counsel submitted that there was no certificate under Section 78 of the Evidence Act to accompany the photographs .

9. On the Fourth ground, Counsel submitted that the sentence imposed by the trial court on the appellant was excessive, harsh, an abuse of court’s discretion in respect of sentencing, and failed to capture the recent jurisprudence on the same. Further, Counsel submitted that the trial court disregarded the Appellant’s mitigation and to call for the Appellant’s criminal records from the prosecution which would have been informed that the Appellant was a first-time offender and thus merited a lenient sentence.

10. In conclusion, Counsel submitted that the Appellant was convicted on account of untruth, inconsistent, contradictory and unreliable evidence of the prosecution witnesses, the result of which being that Prosecution failed to discharge its burden of proof. He therefore urged that the appeal be allowed, the court’s judgement and sentence by the trial court be set aside and the Appellant be acquitted of all the charges.

11. On his part, Mr. Kihara for the Respondent filed his submissions 15/01/2024 On failure by the trial court to inform the Appellant of his right of representation which is the subject of the first ground, he submitted , it is not a hard and fast rule that the State should have the Appellant represented especially in felonies. He argued that this option is only accorded to persons charged with murder and in all instances where a minor has been charged with an offence whether a misdemeanour or a felony.

12. Further , he submitted that the Appellant has failed to demonstrate that he sought counsel and that the request was declined. That at the trial, the Appellant in cross- examined Respondent’s witnesses and that there was no doubt that he never faced any challenge during the trial process.

13. He submitted that at the trial, the Appellant did not raise any objections in the manner the trial was being conducted and therefore no miscarriage of justice was demonstrated in the circumstances herein.

14. On the discharge of burden of proof, he submitted that the events on that day were between the Appellant and the Complainant and in the presence of other people. He maintained that attack on the Complainant is supported by injuries he sustained from the knife attack and a medical report produced by a doctor.

15. He therefore submitted that it is apparent that these were not self-inflicted injuries on the part of the Complainant and no other person was implicated in the attack. Further, he submitted that from evidence adduced by the witnesses, it is clear that the appellant was known to have been carrying a knife and that the said knife that was recovered and produced as evidence. He therefore submitted that the two had issues with each other and that the Appellant was the aggressor.

16. On production of photographs without a certificate, he submitted that the Appellant did not show what prejudice he suffered bearing in mind that the P3 Form was produced to confirm the injuries.

17. On the issue of sentence, he submitted that the Appellant was in the process of killing the complainant but it failed to materialise. That bearing in mind that the sentence provided for offence of attempted murder is life imprisonment, the trial court was justified when it handed the Appellant a term of 25 years imprisonment.

18. He urged the Court not to interfere with the same. In conclusion, he urged the Court to dismiss the appeal and uphold both the conviction and sentence.

19. This being the first appeal, this court has a duty to re-evaluate the evidence and draw its own conclusions bearing in mind that the trial court had the benefit of seeing and hearing the witnesses testify- See Okeno vs. Republic (1972) EA 32.

20. Before the trial Danol Kirui was the first witness as PW1 (herein referred to as the complainant). He stated that he and the Appellant were neighbours. The Appellant’s wife came passing by the Appellant’s homestead yet he had for a long time told them that they should use an alternative route. He warned her and told her to tell the Appellant to stop it as he had warned them a long time ago.

21. On 27/01/2021, the complainant was with other boda boda riders including Peter Kipngeno Tanui (PW2) at Olenguruone town when the Appellant attacked him questioning him as to what he had told his wife. The Appellant removed a stone and tried to hit him on the head.

22. The complainant got hold of him in an attempt to snatch the stone but the Appellant hit him on the head and he lost consciousness. Suddenly, he felt something cold cut him on the left side of the cheek next to the ear.

23. A good Samaritan came to separate them . He had not seen the Appellant cut him with the knife. He did not see the person who took the knife away. The Appellant escaped but was arrested an hour later while the complainant was taken . He was taken to Olenguruone Sub- County where he was treated and discharged.

24. Peter Kipngeno Tanui (PW2) was at the stage waiting for customers when he saw the complainant and the Appellant arguing and shortly after, the two started fighting . Other boda boda riders screamed and on seeing blood coming from the complainant’s head and on the left side of the neck, PW2 pleaded with the complainant to stop the fight. The Appellant fled.

25. PW2 saw something black on the ground and was informed that it was a knife and that one Leonard had it. He pleaded with Leonard to give it to him as he was resisting to release it.

26. He further told the court that he had seen the Appellant remove the knife from his back pocket as they fought. PW2handed over the knife to the police at Olenguruone.

27. Solmon Rotich (PW3) saw the Appellant and the Complainant fighting at Olenguruone. Then the Appellant took a stone and hit the complainant on the head. The Appellant then removed the knife form his pocket and shortly, PW3 saw that the Complainant had been cut the on the neck .

28. However, he did not see the Appellant cut the complainant. They took the knife to the police while the Complainant was taken to hospital.

29. Joel Mokambia (P W4), a Clinical Officer at Olenguruone District Hospital testified that the Complainant came to the hospital at 5. 00 pm on 27/01/2021 having been assaulted by someone known to him.

30. The Complainant had injuries on the left face , cut wound on the forehead and right cheek. He had been cut with a panga on the forehead and on the cheek. He was stitched and treated. He produced the complainant’s P3 Form and Outpatient Card.

31. The investigating Officer Cpl Boniface Njururi (PW5) was at Olenguruone Police Station at 6. 00 pm when to boda boda riders who PW5 well came running and reported that the Complainant had been stabbed with a knife and that the suspect had escaped towards Mau Link . PW5 tried to chase after him but the suspect managed to escape as he was running at a distance.

32. He proceeded to Olenguruone Hospital and found the Complainant in the ward. He saw the injury caused by the knife . He took a photo of him with a knife stab wound around the neck.

33. After a day, the suspect , one R was arrested by Nyumba Kumi members and brought to the Sation. After investigations, PW5 charged him with attempted murder as the injury was slightly above the neck.

34. He issued a P3 Form which was duly filled. He recorded statement from one Solomon, Frankline and Peter who knew the Appellant well and that the Appellant had at time caused fracas threatening people with a knife.

35. Upon interrogating the Complainant, he established that there was a route to go to get milk from a neighbour , but the Complainant had refused people to use the path and asked the complainant to stop passing through. However , the shortcut could not have caused the differences the at the stage. He testified that the weapon used was on the neck and could have caused death as the Appellant was targeting the neck.

36. In his unsworn statement, the Appellant testified that the Complainant was a neighbour and that they had been having differences. That they disagreed after the Appellant with his(complainant’s)wife. That he argued with the Complainant . He informed the village elder who adjourned the meeting.

37. That one time , he went to work as usual and, in the evening, he heard people saying that the Complainant was injured and need the Appellant’s motor bike to take him to hospital . The Appellant proceeded to take him to hospital and while at the gate, they were told to go to Police Sation. To his shock, the Appellant was locked up on the grounds he had stabbed the complainant.

38. After considering the evidence and the submissions by parties the broad issues that arise for determination in this appeal are: -1. Whether failure to inform the Appellant of his right to be represented by counsel violated is right to fair trial under Article 50 (2) of the Constitution.2. Whether the Respondent discharged its burden of proof.3. Whether the sentence was harsh, unlawful, and against the weight of evidence.

39. On the first issue, Article 50 (2) (g) and (h) of the Constitution provides:-“(2)Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly;..”

32. The trial court’s record shows that the Appellant was first arraigned in court on 29/01/2021. The charge was read to the Appellant in a language he understood and a plea of not guilty was entered. It is not in dispute that the Appellant was not represented by Counsel during the trial.

33. The court record does not indicate that the Appellant was informed of his right to be represented by an advocate. The Appellant also did not ask to be provided with one. He proceeded with the trial and cross- examined the witnesses. He also mounted a defense to this charge.

34. This Court is satisfied that failure to inform the Appellant of his right to Counsel under Article 50 (2) (g) of the Constitution did not suffer prejudice the Appellant in this case. Further, he has not demonstrated that any injustice was occasioned to him at all as a result of not being informed of his right or for not being provided for with an advocate at the State’s expense in the circumstances of this case.

40. Regarding the burden of proof, the Court of Appeal in Mkendeshwa v Republic [2002] 1 KLR 461 stated:-“In criminal cases, the burden is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and generally the accused assumes no legal burden of establishing his innocence. However, in certain limited cases the law places a burden on the accused to explain matters which are peculiarly within his own personal knowledge.”

41. Further, the degree of proof in criminal cases was established in the House of Lords in the English case of Woolmington vs. DPP [1935] A C 462. Similarly, in Bakare vs. State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: -“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” (Emphasis added).

42. The burden of proof here is in regard to the offence of attempted murder, section 220 of the Penal Code which provides that : -“Any person who -(a)attempts unlawfully to cause the death of another; or(b)with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.”

43. As the Court embarks of establishing whether the Respondent discharged the burden on the charge of attempted murder, the Court of Appeal in Abdi Ali Bare vs. Republic [2015] eKLR, had this to say on what should be proved against an accused:-“...The more challenging question in a charge of attempted murder is the actus reus of the offence. Although a casual reading of Section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence. In the work quoted above by Smith & Hogan (Butterworths), the authors give the following scenario at page 291 to illustrate the distinction:‘D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder...’In the present appeal, to prove attempted murder on the part of the appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with commission of the murder. Whether there has been an attempt to commit an offence is a question of fact. The act alleged to constitute attempted murder, for example, must be sufficiently proximate to murder to be properly described as attempt to commit murder.In CROSS & JOINES' INTRODUCTION TO CRIMINAL LAW, Butterworths, 8th Edition (1976), P. Asterley Jones and R. I. E. Card state as follows at page 354:'...[A]n act is sufficiently proximate when the accused has done the last act which it is necessary for him to do in order to commit the specific offence attempted...'The learned authors add that the court must answer the question whether the acts by the accused person were immediately or merely remotely connected with the commission of the specific offence attempted on the basis of common sense. Ultimately therefore, the real question is whether the acts by the accused person amounted to mere preparation to commit murder or whether the accused had done more than mere preparatory acts.”

44. There is no doubt that the Appellant and the Respondent were neighbours and had some differences. According to the complainant, cause of this incident is that he had told the Appellants wife was passing near his homestead yet he had told them severally not to. He had warned her and also told her to tell the Appellant. In cross examination by the Appellant, he denied that he had a relationship with the Appellant’s wife.

45. It is also clear that the Appellant confronted the complainant wanting to know what he was telling the Appellants wife. No doubt, there was a fight between the Appellant and the complainant and this fight was witnessed by PW2 and PW3. The Appellant’s attempt to remove himself from the scene is an afterthought and untrue.

46. There is no doubt that the Complainant sustained injuries during this fight. According to the P3 form prepared and signed by PW4, the complainant had sustained a cut wound on the head and deep cut wound on the left cheek and that the injuries were caused by a sharp object. The issue then is what caused the injuries.

47. The complainant’s evidence was that he was hit by the Appellant using a stone and fell down unconscious and felt something cold cut his left cheek. He did not see the Appellant cut him. He however testified that he used to see the Appellant carrying the knife and had even threatened to cut him with the knife and the chief knew about the threat.

48. PW3 saw the Appellant remove the knife from the pocket during the fight. The Appellant dropped it at the scene and fled. It was the knife PW2 saw the Appellant remove from his pocket and it the one PW2, PW3 and other boda boda riders picked from the scene and took it to police. There is no doubt that it was the Appellant who inflicted the said injuries on the complainant.

49. PW3’s evidence that he “saw PW1 had been cut on the neck” may appear to be a contradiction. However, for a contradiction by witnesses to be fatal, it must be substantial. It is a fact that the complainant bled from the cut wound on the head and cheek and blood flowed from the left side of the cheek. In the circumstances , the contradiction is not fatal.

50. On use of photographs produced as evidence without a certificate, the Respondent’s case was not solely dependent on the said photograph as the Respondent relying on P3 form to confirm the injuries. In the circumstances, the Appellant has not shown what prejudice he suffered .

51. The fact that he carried the knife with him and confronted and attacked the complainant in the circumstances herein shows that he had planned to use knife to harm the complainant and did inflict a deep cut wound on the cheek.

52. This Court is satisfied that both the mens rea and the actus reus were proved in regard to the charge of attempted murder.

53. While convicting the Appellant, the trial magistrate held:-“On whether the accused intended to cause the death of the Complainant, the Complainant stated that the accused had been threatening to kill him with the knife. PW2 said that the accused had been threatening other boda boda riders with the knife. The accused in his defence he had differences with the complainant and that he even found the complainant with his wife. Due to the said differences and accused always carrying the knife, and issuing threats, I am convinced that he indeed intended to cause the death of the complainant. In order to act on the said intentions, the accused apart from hitting the with a stone on the head, he went ahead to remove the knife and cut him on the cheek near the which was near the neck.”

54. This Court finds no error in that finding and therefore that ground of appeal lacks merit.

55. Regarding sentence, the Appellant the Court of Appeal in Bernard Kimani Gacheru vs Republic [2002] eKLR held:-“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

56. In this case, and contrary to submissions by the Appellant, there is nothing to show that the trial court passed the sentence on the basis of mandatory sentence.

57. Further, the trial court indeed considered the mitigation by the Appellant and that he was treated as first offender. She also considered the circumstances under which the offence was committed and the type of weapon used before sentencing the Appellant to 25 years imprisonment. This Court finds however that the sentence herein is manifestly excessive in the circumstances and calls interference by this Court.

58. The Court notes that in mitigation, the Appellant urged the trial court to consider the period he was in custody. However, there is nothing to indicate that the mandatory provisions of Section 333 (2) of the Criminal Procedure Code were complied with. Consequently, the Appeal partially succeeds and is disposed as follows: -1. The Appeal on conviction herein lacks merit and is therefore dismissed.2. The sentence of 25 years imprisonment is set aside and substituted with a sentence of 15 years imprisonment.3. The period the Appellant spent in custody from 27th November, 2020 when he was arrested to 15th March, 2021 when he was released on bond be taken into account in computation of the said sentence.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 11THDAY OF APRIL, 2024PATRICIA GICHOHIJUDGEIn the presence of:Mr. Bore for AppellantMr. Kihara for RespondentAppellantYego, Court Assistant