[2023] KEHC 18561 (KLR)

Baishe & another v Republic (Criminal Appeal E032 of 2021) [2023] KEHC 18561 (KLR) (7 June 2022) (Judgment)

Neutral citation: [2023] KEHC 18561 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E032 of 2021

SM Githinji, J

June 7, 2022

Between

Mohamed Baishe

1st Appellant

Mohamed Shee

2nd Appellant

and

Republic

Respondent

(Being an appeal against the Conviction and Sentence from the Original Lamu Criminal Case No.62 of 2020 in a Judgment delivered on 12th August, 2021 by Hon. T.A.Sitati – Principal Magistrate)

Judgment

Coram: Hon. Justice S. M. GithinjiMr Mwangi for the stateAppellant in person 1. Mohamed Baishe and Mohamed Shee, both the Appellants herein, were charged in the lower court with the offence of Grievous harm, contrary to section 234 of the Penal Code. 2. The particulars of this offence are that on the 30th day of April, 2020 at Kivasasi Village, in Lamu West Sub-County, within Lamu County, the Appellants herein jointly did grievous harm to Yusuf Ali Sese.

3. The prosecution called a total of 7 witnesses and their case is that the victim in this case who offered evidence as Pw-1 was the Nyumba kumi chair or elder at Kivasasi Village. The 2nd Appellant was the village headman and a neighbor to Pw-1. Pw -1 was therefore working under him. The 2nd Appellant is an uncle to the 1st Appellant.

4. 30th April, 2020 was Ramadhan, Islamic Holiday. During this holiday Muslims focuses on their connection to God, reflect on their lives and spend quality time with friends and family. The victim on this day was looking forward to such. The 1st Appellant in an endeavor to meet the same, organized a food feast at the sea shore. Though the victim herein was uninvited, he decided to join the feast. When the 1st Appellant saw him he turned him away, claiming that his meal had not been provided for. The victim left for his house. He prepared cassava for a meal. However, he noted he had nothing to light or ignite the cooker. He decided to walk to his immediate neighbour’s house to borrow coal for the same. He went to the 2nd Appellant’s house. Upon arrival, he found the 1st Appellant present.

5. The 1st Appellant revisited the feast issue and the two orally quarreled about it. The victim ended up telling him to keep his food as he is making his. Suddenly the 1st Appellant held him and wrestled him to the ground. 2nd Appellant tried to get in between them but it was late. The 1st Appellant grabbed a panga that was next to the wall and using it inflicted serious cut wounds on the victim of which were noted by Pw-6 in the P-3 form as follows; -1. Head and neck, vault region – a deep cut wound measuring 13 cm.2. Thorax and abdomen – Two deep cut wounds on the right side measuring 15 cm and 10 cm respectively.3. Upper limbs – fracture of Radius and ulna with deep cut wounds.4. Lower limbs –Deep cut wound measuring 20 cm at the left hip muscle.

6. During the said attack, the victim had tried to escape but the 2nd Appellant prevented him by holding him by the back side of his trouser. He only set him free after he was seriously injured and as a result of which he fell down helplessly. The 1st Appellant then walked away with the weapon. The 2nd Appellant remained and made a phone call to the area chief (Dw-3) asking for a motor bike to rush the victim to the hospital. Pw-1 retorted that he should first tell the chief that they have killed him.

7. Luckily, Pw -3 happened to be at a neighbour’s place and was attracted to the scene by the victim’s screams. When he got to the scene he met 1st Appellant fleeing the scene. The 2nd Appellant was at his house door. The victim was lying on the floor with blood all over, suffering from deep cut wounds. The victim alleged Baisha and Sheee had injured him.

8. The 2nd Appellant at that point also vanished the house. The victim urged Pw-3 to remove his phone from the pocket and make a call for him. He did so and called Ibrahim to assist. Ibrahim arrived. He called Pw-7 to avail a vehicle to rush the victim to the hospital. They took him to Hindu Magogoni Dispensary from where he was referred to King Fahd Hospital. Pw-4 was part of the team that assisted in taking the victim to the Hospital, having been called by the 2nd Appellant.

9. The 1st Appellant was arrested on 1st May, 2020. According to the evidence Pw-5, he had gone to King Fahd Hospital allegedly to visit the victim. The doctors suspected he was ill motivated and held him. They called police who collected him.

10. Pw-2 investigated the case. He led to arrest of the 2nd Appellant. After completion of the investigations both were charged with the offence of grievous harm.

11. The 1st Appellant’s defence is that he attacked the victim in self – defence. The victim was the aggressor. He found them at their farm while he was armed with a panga and a knife. He insulted the 1st Appellant who urged him to leave. He however did not leave but physically charged at the 1st Appellant. He cut him in the wrist area. However, as he swung to strike the 1st Appellant again, the panga got off the hand and fell down. The victim picked a piece of wood and hit the 1st Appellant with it on the back. The 1st Appellant fell down as a result. The victim was about to give him a killer blow when the 2nd Appellant swang in action and prevented him. The 1st Appellant got a chance to rise. He sensed danger and took the fallen panga. He aimed at the victim but 2nd Appellant blocked him. In the fight, he cut the victim on the head. 2nd Appellant was also cut accidentally on his hands. The victim threw the knife at the 1st Appellant but missed. He then charged at him with the piece of firewood. The 1st Appellant kept on retreating and the victim on pursuing him. 1st Appellant swung the panga as he retreated and the victim parried the blows with the piece of firewood. He then dashed and held the 1st Appellant tightly in an embrace. The 1st Appellant cut him on thighs and legs and eventually pushed him away. He then fled the scene. He went to his mother’s place at Kivasasi village. He got transport and went to King Fahd Hospital for treatment. He was given a bed to rest. The Hospital staff later held him up and called the police.

12. The 2nd Appellant’s brief defence is that he was sharing flour with the 1st Appellant in his home and the victim got therein. He had a panga and placed it against the wall outside as he got into the house unarmed. He quarreled the 1st Appellant and the 2nd Appellant tried to calm them. The victim alleged the 1st Appellant had stolen his cashew nuts but the 1st Appellant denied the allegation. The victim was asked why he had visited and said for coal. He was told to pick and leave but he declined. The 1st Appellant left the room to get a sack to put maize flour and leave. The victim was outside. 1st Appellant cried out saying he had been cut by the victim. The 2nd Appellant moved outside. He found the 1st Appellant holding onto his bleeding wrist while the victim was armed with a piece of firewood. He wanted to strike again, but the 2nd Appellant held him. He tried to persuade him to leave but he was determined to finish the 1st Appellant. The 2nd Appellant called for help from neighbours. The 1st Appellant picked a panga and hit the victim with it. He tried to hold the 1st Appellant and in the process was cut at the palm. He also cut the victim. The two fought fiercely. Ali Shahari turned up but the 1st Appellant had already left. The 1st Appellant called the area chief for help. 2nd Appellant was haze and confused and got into the bush where he got lost. He found himself 4 hours later at Sina Mbio village. He called the chief who said he was at Hindi Health Centre. He went there. There were police officers who asked him to visit the police station. He visited hoping he was a witness only to be charged.

13. The trial court evaluated the evidence and found the offence proved against both Appellants beyond reasonable doubt. They were convicted and sentenced to serve each 20 years imprisonment.

14. Dissatisfied with the said conviction and sentence, they appealed to this Court on the following grounds; -1. There was no evidence that could lead to a conviction.2. The magistrate considered extraneous factors as part of evidence.3. The available evidence was not properly evaluated.4. The magistrate was biased against the Defendants (Appellants).5. The magistrate should have found that the victim was the aggressor and was injured in self – defence by the Appellants.6. The trial Court should have found that the 2nd Appellant was a good Samaritan.7. The meted out sentence of 20 years imprisonment is harsh and excessive.

15. The Memorandum of Appeal raises 11 grounds of which I find that apart from the foregoing 7, the rest are just a repetition.

16. The prosecution opposed the Appeal and both sides submitted in writing on their position.

17. I have re-evaluated the entire evidence, looked into the charge sheet, the judgement of the lower court, sentence passed, grounds of the Appeal and submissions.

18. The Appellants raised grounds on circumstantial evidence and submitted substantively on the same. However, this is a case where there is detailed direct evidence of Pw-1, the victim. It is not based purely on circumstantial evidence. There is evidence of an eye witness on the alleged incident, and others on what happened thereafter. The only issue is whose case to believe, that of the prosecution or that of the defendants (Appellants).

19. Briefly, it is not disputed that the 1st Appellant had chased away the victim from Ramadhan feast at the sea shore. When the victim went later to borrow coal to light his cooker from the 2nd Appellant, he was not aware that the 1st Appellant was there. He could not therefore have gone there for a fight or to quarrel. The evidence of the 2nd Appellant is in agreement that the victim was there for burning coal. In the same breath, he could have carried the panga and knife, for a fight. The evidence shown the panga was at the 2nd Appellant’s house and it is not the victim who went with it.

290. The two Appellants are relatives, a nephew and an uncle respectively. According to their case they were there to share flour. The victim may have quarreled the 1st Appellant verbally but the physical quarrel and the attack was as plainly stated by the victim, done by the 1st Appellant with assistance of the 2nd Appellant. The attack could not have been in self defence, as some injuries were inflicted when the victim was on the ground and harmless. The two escaped having known what they had done. If the 2nd Appellant was not involved, he would have remained to help as the village elder. Guilty conscious, knowing what he had done, made him flee into the bush, only to emerge at a different point 4 hours later.

21. The prosecution case is plausible and convincing as true. I agree with the prosecution that the two acted in concert and had common intention of doing harm to the victim, if not to kill him.

22. The defence by the Appellants is not convincing as true. There cannot be a fierce fight between two where one is injured fatally and the other escapes only with a very minor injury. The defence case was just a made story.

23. Under section 20 of the Penal Code the trial court well observed that the 2nd Appellant fitted to be charged as a principal offender as he aided and or abetted the commission of the offence by the 1st Appellant.

24. As the trial court observed in the judgment, the nature of the injuries and the way they were effected borders on the mens rea for the offence of attempted murder. Such would therefore call for a stiff sentence for the offence. Grievous harm itself is a felony which carries a sentence on the higher side of life imprisonment. 20 years imprisonment meted against the Appellants is not only a lawful sentence but as well as a fair one given the circumstances. I find no legal ground which entitles me to interfere with the same.

26. The Appeal therefore lacks merit and is hereby dismissed.

JUDGMENT FOR GARSEN READ AND SIGNED AT MALINDI IN THE OPEN COURT TO PARTIES WHO APPEARS VIRTUALLY, WHO ARE; - THE APPELLANT AT MALINDI PRISON AND MS MKONGO FOR THE STATE, THIS 7TH DAY OF JUNE, 2022. ............................S.M. GITHINJIJUDGE