[2022] KEHC 10051 (KLR)

Athman v Republic (Criminal Appeal E001 of 2020) [2022] KEHC 10051 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10051 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal E001 of 2020

RN Nyakundi, J

July 6, 2022

Between

Omar Yakubu Athman

Appellant

and

Republic

Respondent

(Being an appeal from the judgement and sentence of Hon. T.A Sitati Principal Magistrate at Lamu delivered on the 4th February, 2021 erroneously indicated 2020 and 15th October 2020 Principal Magistrate’s courts Criminal Case No. 109 of 2019)

Judgment

1The Appellant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code

2The particulars as per the charge sheet were that on the on 29th April 2019 at Tchundwa village in Lamu East sub-county within Lamu County, unlawfully chopped off four fingers of the left hand of Athman Omar Athman thereby causing him grievous harm

3The accused person pleaded not guilty and the matter went to full trial. The prosecution called three witnesses in support of its case. The Appellant being aggrieved by the conviction and sentence of the learned trial Magistrate lodged his appeal on the following grounds;i.The learned trial magistrate misapprehended and misapplied the provision of section 150 of the Criminal Procedure Codewhen it summoned Hamza and his mother Hidaya to testify without following the provisions of Article 50 (2) of the constitution rendering the proceedings unfair and thereby occasioning a miscarriage of justice.ii.The learned trial magistrate misunderstood, misapprehended and misapplied the principle of recognition under the circumstances of this case and in particular by not properly analyzing the evidence and establish whether there was sufficient evidence to establish a motive by the appellant to cause grievous harm to the complainant or possibility of a grudge against the appellant which facts raised reasonable doubts against the prosecution’s case.iii.The learned trial magistrate erred in law and fact when he relied on the evidence of a single witness without corroboration by other material evidence, for instance: -a.The failure to recover the weapon used.b.Absence of the weapon prevented possibility of forensic evidence to corroborate the complainant’s claim.c.The denial by Hamza and his mother Hidaya of the complainant’s claim raised doubt to the complainant’s testimony.d.Failure by the investigating officer to properly, efficiently and correctly investigate the case watered down the prosecution case for instance; Failure to record and use in evidence the statement of the appellant.

Failure to investigate whether there was prior grudge between the complainant and the appellant.iv.The learned trial magistrate erred in law and fact in his finding that both Hamza and Hidaya were economical with the truth for fear of the appellant without considering that the police and the prosecution had the advantage of Witness Protection Act but had failed to invoke it for good reason and had he considered this fact he would not have reached the said conclusion of fact and law.v.The learned trial magistrate overstepped his boundaries of an impartial, and or neutral arbiter and stepped into investigative and prosecutorial roles that clouded his judgement causing him to fall into grave error of fact and law.vi.The learned trial magistrate erred in law in disbelieving the alibi defence partly because of his having overstepped his boundaries as a magistrate and partly by failing to find that had the investigating officer done a thorough job he would have discounted or approve the alibi defence even before trial.vii.The learned trial magistrate erred in law and fact in his application of Section 8 of the Evidence Act without any evidence from the prosecution.viii.The learned trial magistrate erred in fact and in law in shifting the burden of proof to the accused and not the prosecution.ix.The learned trial magistrate erred in fact and in law in convicting the appellant despite the prosecution failing to prove its case beyond reasonable doubt.

Evidence at Trial 4PW1 Athman Omar Athman told the court that on 29th April 2019 at around 5. 00pm he had gone to assist his friend Hamza’s compound in Tchundwa village. He testified that whilst collecting stones, he saw a male donkey speed into the compound chasing after a female donkey which entered Hamza’s house and sped out as quickly as they had come.

5He added that he saw the accused approaching him and asked him for a donkey saddle to which he replied that he had not seen it. That the accused left and came back armed with a panga and without uttering a word made a swing at his head which he shielded using his left arm causing the accused person to chop off 4 fingers on the left hand. The accused made another aim but he shielded himself again causing the accused slash his right elbow and right shoulder.

6He testified that he began to flee with the accused chasing after him and slashing his left pelvis area. That he turned and threw his jumper into the accused’s face which gave him a chance to flee hiding into one of the neighbor’s house where the accused followed him forcing him to flee to another neighbor’s house.

7That after some time of hiding he went out and went to report to his mother who took him to the hospital and later reported the incidence to the police station.

8On cross examination he stated that prior to the attack, he met the accused person while fetching water. Further that Hamza and Hidaya were within the general compound at the time of the attack but they had not recorded statements. He added that he sought refuge in two house one belonging to Mr. Abush and the other to Tima Ali.

9In reexamination he stated that both Hamza and Hidaya had not recorded statements out of fear of the accused person.

10This disclosure led to the court invoking the provisions of Section 150 of the Criminal Procedure Code.

11Hidaya Mohamed Shee told the court that on the material day she had hired PW1 to break down stones at her compound. That PW1 finished the task at 3 pm and was paid Kshs. 500 and she did not witness anything of interest to the case and she did not see him being cut in her compound.

12On questioning by the DPP she stated that she used to give PW1 casual work but after the assault he has never gone back to her compound.

13Hamza Jidale Baile told the court that on the material day PW1 went to their compound for work after which he was paid and left.

14He stated that he did not witness the actual attack.

15PW2 Biti Bini mother to PW1 told the court that PW1 arrived at her house 6pm in a sorry state bleeding from cut wounds on the left hand, palm, shoulder and arm. That she immediately organized for transport to Faza hospital where he was treated and discharged.

16On cross examination she stated that she had not witnessed the actual attack and she had learned that both Hidaya and Hamza acted out of fear in declining to give a clear picture of Pw1’s attack.

17PW3 Dr. Zubeir Salim Zubeir produced a discharge summary for PW1 dated 2nd may 2019 whose conclusion was;1. Amputation of four fingers had already been done by means of a sharp object.2. Deep cut wound on the right upper limb with fracture of the radius

18PW4 72963 PC Norman Chirchir stated that he was not the initial investigating officer but had taken over the file.

19It was his testimony that upon the report being made at Faza police station, officers rushed to the scene but did not find the suspect.

20That through intelligence, the suspect was tracked down in Mombasa and was arrested on 25th June 2019 then transferred to Lamu police station where he was processed for the offences.

21The accused was placed on his defence, gave sworn evidence and called two witnesses.

22DW1 Omaar Yakubu Athman the accused testified that he did not assault PW1 as he was not around on 29th April 2019 since he had travelled to Mombasa. Further that he was arrested in Mwembe Tayari Mombasa for failing to carry a National Identity card.

23On cross examination he stated that apart from the travel receipt he had produced in court, there was no evidence showing that he had travelled to Mombasa.

24DW2 Nyenye Msuo told the court that he had travelled on 28th April with the accused from Lamu to Mombasa.

25On cross examination he stated that he did not have proof that he had actually arrived in Mombasa.

26DW3 Mudhafar Mohamed Bakari told the court that during the April 2019 season he was a ticketing agent for Talal coaches which were operating Lamu-Malindi- Mombasa.

27He testified that on 27th April 2019 he received a call from the accused who asked for a reservation for two seats for travel on 28th April 2019. That when they arrived on 28th April 2019 he directed them to the shuttle and that the two receipts produced in court were issued by himself.

28On cross examination he stated that the receipt book he had brought to court was defective. Further that he could not confirm whether the accused and DW2 actually travelled to Mombasa from Lamu on the said dates.

Submissions on Appeal 29The appellant submitted that the prosecution fundamentally failed to discharge the burden of proof hence no conviction ought to have arisen. That the evidence by the prosecution was marred by inconsistencies and contradictions.

30It was submitted that the evidence of Hamza and Hidaya was cogent, consistent, truthful and believable.

31It was further submitted that it was erroneous of the court in absence of forensic analysis to hold that the bus tickets produced by the appellant were forgeries and or fabricated.

32It was also submitted that the trial magistrate’s application of Section 150 of the Criminal Procedure Code did not comply with Article 50 of the constitution.

Respondent’s Submissions 33The respondent submitted the prosecution had proved its case beyond reasonable doubt thus this court ought to uphold the trial court’s conviction and sentence.

Analysis and Determination 34This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re-evaluate and analyse it and come to its own conclusions. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record. See OkenovR (1972) EA 32, Eric Onyango Odeng’ v R [2014] eKLR.

35I have considered the grounds of appeal, the record and submission of the parties. The issues for determination are;

a.Whether the prosecution proved its case beyond reasonable doubts? 36On standard of proof and ingredients of the offence as charged, two critical issues stand out for determination namely: whether the appellant was positively identified as the person who committed the offence and if the prosecution proved its case beyond reasonable doubt.

37As regards recognition, it was held in Anjononi & others v Republic[1980]KLR 57 it was held:“…; recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends on the personal knowledge of the assailant in some form or the other.”

38In the present case, the respondent identifies that appellant as his clansman and that they had interaction on the same day prior to the attack. Both seem well known to each other therefore in my view identification was positive.

39The appellant faulted the trial for failing to find that the prosecution should have called one Tima Ali and one Mr. Abush to testify. This Court is alive to the fact that there is no legal requirement in law on the number of witnesses to prove a fact Section 143 of Evidence Act (Cap 80) Laws of Kenya provides: -“143. 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”

40In Keter -v- Republic[2007] 1 EA 135 it was held inter alia:“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

41Further, the appellant faults the trial court for relying on the evidence of the respondent uncorroborated to find him guilty. The question then begs, what is the weight of the evidence of the complainant without the corroboration of other witnesses?

42Unfortunately, this court did not get to see the demeanor of the witnesses at the hearing. Two witnesses were summoned by the court under Section 150 of the CPC to which the trial court dismissed their evidence.

43The accounts of the assault are given by PW1 alone. There seems to have been no party to witness the alleged assault.

44it is established law that a conviction can be based on the testimony of a single witness, a position that was ably captured in Anil Phukan vs State of Assam as follows: -“A conviction can be based on the testimony of a single-eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passed the test of reliability in basing conviction on his testimony alone”

45A similar position was reiterated by the Court of Appeal of Tanzania in Ahmad Omari vs The Republic. Also discussing the same issue, the Court of Appeal of Uganda in Okwang Peter vs Uganda held as follows: -“Subject to certain well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness in respect to identification especially when it is known that the conditions favoring correct identification were difficult. In such circumstances what is needed is other evidence, whether it is circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from possibility of error”

46It is always competent to convict on evidence of a single witness if that evidence is clear and satisfactory in every respect. The law is also clear that there is no particular number of witnesses required for proof of any fact. I find no reason to make adverse inference in the circumstances of this case.

47I have reviewed and analyzed the defence offered by the appellant in the lower court and the prosecution evidence. I am fully aware that the legal burden of proof in criminal cases never leaves the prosecution’s backyard. A close examination of the defence offered clearly shows that it does not create doubts on the strength of the prosecution case.

48The appellant’s defence is that of alibi which from the trial court’s record was discredited for want of credibility.

49I find and hold that that the learned Magistrate correctly analyzed the evidence and arrived at the correct conclusions. I find that the learned Magistrate properly convicted the appellant. Therefore nothing useful to add.

Sentencing Verdict 50The Appellate jurisdiction to interfere with a trial court sentence imposed at the end of the trial upon conviction is now trite. This view was clearly expressed in the cases of Ogollas/s OwuorvR [1954] EACA 270 Shadrack Kipkoech KogovR [CR Appeal No.253 of 2003].

51Further the pre-eminent and incontestable position of the law was also stated in the 2016 Judiciary of Kenya sentencing police guidelines which lists the objectives of sentencing to factor in the following; -a.Retribution: to punish the offender for his/her criminal conduct in a just manner.b.Deterrence to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.c.Rehabilitation to enable the offender reform from his criminal disposition and become a law abiding person.d.Restorative justice, to address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasion victim’s, communities and offenders needs and justice demands that these are men. Further to provide a sense of responsibility through the offenders’ contribution towards meeting the victim’s needs.e.Community protection to promote the community by incapacitating the offender.f.Denunciation; To communicate the community condemnation of the criminal conduct.

52Hence the legalistic style of sentencing focuses on violations of the law. In my view the discretion exercised by trial courts is also expected to fashion the sentencing verdict with principles on restorative justice as a measure to put into consideration, the victim impact evaluated factors. To some extent retribution and deterrence principles of sentencing to some are applied on offenders because it is widely regarded as simply being the right thing to do. It is appreciated by the law that offenders experience some sort of loss or burden in recognition of the societal disapproval of their actions.

53However, custodial sanctions generally should be justified in reference, to other objectives concerned with sentencing. One issue on which there is general consensus, however, is he significant financial cost of imprisonment. It undoubtedly requires considerable resources to produce sufficient benefits of rehabilitating an offender. A further aim of sentencing can be to repair the harm that has been caused by the crime to the victim. This can take the form of financial compensation which is a far broader aspects of restorative justice approach involving victims, his or her families and community members in responding to crime.

54In my view compensatory, retributive and deterrent components in sentencing verdicts are interwoven, making it difficult to individually calibrate the sum required to make the victim whole. For example a sentence may be too severe or too lenient to deter or admonish the offender. Our criminal procedure code acknowledges this latitude for the court to award damages for non-pecuniary loss. In the same breadth, building a compensatory based approach and period of custodial sentence immediately after conviction no doubt requires an enormous amount of information, most of which is not readily available to the trial court.

55In the absence of adequate information and an understanding of the complexities of the dynamics of deterrence, custody on basic factors on mitigation and aggravation seems to me to be insufficient for a fair and proportionate sentence. Further deterrence calculus require a sense of the equation by which the trial court gives relevant weights to each of the key factors that would optimize rehabilitation or incapacitation of the perceived convict.

56On review of the material before court, the purpose of the custodial sentence was none other than to prevent the convict from doing fresh harm to fellow citizens and deter others from doing the same. The law is clear that parliament prescribed a maximum sentence of life imprisonment for the offence of grievous harm.

57Given that imperative is that an approach of 20 (twenty years) imprisonment may be justified for the crime from the perspective of the learned trial magistrate. From the record, I think it’s so founded on the synthesis model undertaken by the learned trial magistrate in which he factored the circumstances of the offence and the gravity of harm inflicted against the victim.

58Indeed, while reading the passages of the impugned judgment one is reminded to ask the question whether, there is anything wrong with the sentence as suggestive of this appeal. To put the question again, how can the unlawful acts of making another lose the use of part of his limbs be punished? by a lesser sentence than the (20) years. It seems to me that the sentence to that extent represents, the cruelty inflicted for the very purpose of causing maim, pain and suffering.

59Thus in our criminal law justice is giving people what they deserve over and over again. I hold a strong view that enhancing the criminal law moral culpability requires more than anything, that the overriding objective of the law is to do justice by punishing offenders for the crimes they commit. It is evident that the purpose of the twenty years imprisonment is none other than to prevent the convict from doing fresh harm to fellow citizens and to deter others from doing the same.

60While I agree to some extent with the learned trial magistrate, I cannot share his conclusion for failure to foster the provisions of section 333 (2) of the Criminal Procedure Code on the aspect of giving credit to the period spent in remand custody. In the same breadth the final order on sentence ought to have taken into account the notion of reparation for a serious crime of this nature to repair the harm caused to the victim. Textually reparation enables the court to ensure that the offenders account for their acts not only in punishing them but also compensate the victims by way of general damages.

61Though trial courts have taken a position to the award of damages arising out of a criminal act ought to be pursued as a separate claim before a civil court. I tend to hold a different opinion. Given the professional background, expertise, experience and skills set of magistrates the economic harm inflicted upon the victim can sufficiently be quantified in situ the criminal trial. This result is feasible. It is not trite that a victim of violence capable of being awarded damages has to wait for the outcome of a civil claim for compensation for pain and suffering and loss of amenities. Once conviction has been ascertained victims of such crimes should receive appropriate, adequate and prompt compensation. As such I find no prejudice or inconsistency with the rights of a convicted person under article 50 of the constitution on the right to a fair and impartial trial. The key question in our criminal justice system is how to structure this discretion. It is time that strategies of restorative justice play a crucial part in the decision making within the existing mechanisms. Decisions on compensation should be made at an early stage as possible.

62The longer the delay for the victim to be compensated for the wrongful criminal acts, of a convicted offender the greater the lapse of that fundamental right. The focus to this point is to avoid unnecessary trials that will undermine the judicial process in terms of resources and the presumed lack of interest on the victim to pursue the protection of their fundamental rights. Imprisonment no doubt has an obvious punitive element but the sanctions nevertheless for an award of damages is both a measure prescribed by law. This is one of the considerations I could have factored in this appeal. However, choosing that alternative without admission of new evidence is a consideration which will weigh heavily in the outcome of the appeal, in respect of awarding compensation. Who should act on this? the trial court at an opportune time. It is true from the eyes of the public and the victim that the degree of harm caused was met by a just sentence.

63A more significant concern identified from the factual matrix of the case is predominately the serious harm occasioned and subsequent pain and suffering which remain uncompensated. In respect to the harm the quantum in monetary form goes a long way to repair the injured limb, disability, current and future medical expenses. The principles of fundamental justice requires a proposed norm to meet these two characteristics sufficiently precise so as to yield a measure which does not deprive the victim compensation for the wrongful act of the offender.

64In the case at bar taking into account the record, the impugned judgment, the perspective of fairness or notions of justice it is essential to maintain public confidence and the objective of punishing crime for courts to respond appropriately in punishing those found culpable. With respect with the 20 years imprisonment the focus of the reasoning seems to emphasize on deterrence as a central notion of fairness. Yet, a legal maxim where there is a right there must be a remedy for it’s violation in so far as the guarantee to compensate the victim for the loss ought not to be ignored altogether. Likewise, this court is mindful of balancing these two remedies which occupy essential part of our administration of justice. It is for this very reason that I exercise discretion to interfere with the long deterrent sentence of 20 years imposed by the trial court in support of a lesser custodial sentence of 7 years with effect from 26th June 2019. The real issue is that for the victim to foreclose civil redress against the appellant which is in compliance with our constitution and the statute on civil claims. Inking on this appeal it seems to me the appellant has not been successful for the flexible rule of agreeing on the questions of reliefs addressed in the memorandum of appeal. The phrase appeal allowed as the final prayer in the memorandum is substituted with the maxim appeal disallowed.

65Orders accordingly

DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET FOR GARSEN THIS 6THDAY OF JULY, 2022. .................................R. NYAKUNDIJUDGEIn the presence of:The appellantMr Mwangi for the stateCORAM:Hon. Justice R. NyakundiAppellant in personMr. Sirima for the state