[2023] KEHC 20129 (KLR)

Bett v Republic (Criminal Appeal E052 of 2022) [2023] KEHC 20129 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 20129 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E052 of 2022

RL Korir, J

June 29, 2023

Between

Haron Bett

Appellant

and

Republic

Respondent

(From the Conviction and Sentence in Criminal Case Number E076 of 2022 by Hon. L. Kiniale in the Principal Magistrate’s Court at Bomet)

Judgment

1. The Appellant was convicted by Hon L Kiniale (Principal Magistrate) for the offence of grievous harm contrary to section 234 of the Penal Code. The particulars of the charge were that on January 13, 2022 at around 2000 hours at Kaptilolwo village in Ndarawetta location within Bomet County unlawfully did grievous harm to Paul Kipkemoi Mutai.

2. The Appellant pleaded not guilty to the charge before the trial court, and a full hearing was conducted. The prosecution called eight (8) witnesses in support of its case.

3. At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Accused and he was put on his defence.

4. At the conclusion of the trial, the Appellant was convicted of the offence of grievous harm and sentenced to serve 20 years in prison.

5. Being dissatisfied with the Judgment dated November 2, 2022, the Appellant appealed to this court on grounds reproduced verbatim as follows: -i.Thatthe learned trial Magistrate erred in both law and fact by relying on uncorroborated evidence to convict the Appellant.ii.Thatthe learned trial Magistrate erred in both law and fact by relying on evidence adduced by the Prosecution side which was inconsistent and full of irregularities.iii.Thatthe learned trial Magistrate erred in both law and fact by convicting the Appellant based on insufficient evidence which cannot prove a case beyond any reasonable doubt.iv.Thatthe learned trial Magistrate erred in both law and fact by rejecting my plausible defense without any further explanation.v.ThatI pray to be present during the hearing of this Appeal.vi.That the learned trial Magistrate erred in both law and fact by sentencing the Appellant to a harsh and excessive sentence contrary to Article 50(2)(p) of theConstitution.

6. This being the first appellate court, I have a duty to re-evaluate the evidence on record. This was succinctly stated by theCourt of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where it stated:-“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”.

The Prosecution’s Case. 7. It was the Prosecution’s case that the Appellant attacked Paul Kipkemoi Mutai (PW1) with a double edged panga cutting him four times on the head thereby causing him grievous harm. PW1 testified that he was responding to his brother’s (PW2) plea for help as the Appellant and his brother had invaded his home and threatened to kill him. That as he arrived at PW2’s home, the Appellant came from nowhere and cut him on the head four times using a double edged panga.

8. Ambrose Kipngetich (PW3) who was the Appellant’s roommate testified that the Appellant was arrested in his house and that he later found the Appellant’s panga which he took to nyumba kumi. Geoffrey C. Kirui (PW6) testified that he examined PW1 on January 15, 2022, treated him and filled a P3 form. He classified the degree of injuries as grievous harm.

The Appellant’s Case. 9. The Appellant, Haron Bett testified that his brother Amos Bett destroyed the fence but it was him who was arrested. That his brother was arrested and was in custody in Kericho. It was the Appellant’s case that there was a land dispute as PW2 had bought land that they had not yet subdivided. He prayed that the court look at both sides and assist them

The Prosecution’s/Respondent’s Submissions. 10. The Prosecution submitted that the victim was cut with a panga on the head four times by the Appellant. That PW6 confirmed that the victim suffered grievous harm and sustained injuries on the head. The Prosecution further submitted that the panga was recovered and produced as an exhibit.

11. It was the Prosecution’s submission that the Appellant was identified by the victim who had a torch. That the victim had a conversation with the Appellant during the assault and that he was a close neighbour. It was the Prosecution’s further submission that PW2 corroborated the evidence of the victim and therefore the Appellant was positively identified as the perpetrator.

12. The Prosecution submitted that the Appellant gave a mere denial in his defence. That the Prosecution had proved the necessary elements of the offence and to the required standard.

13. It was the Prosecution’s submission that the trial court gave the Appellant a chance to mitigate and he was not remorseful. That the victim suffered life threatening injuries as a result of the assault. It was the Prosecution’s submission that in awarding the 20 year sentence, the trial court properly exercised its discretion and that the sentence was appropriate.

The Appellant’s/Accused’s Submissions. 14. It was the Appellant’s submission that the complainant was well known to them as they were neighbours and that this case was founded on a land dispute where his father sold land to PW2. That PW2 duped his father to sell land to him when they were still young and that he took advantage of his father who was a drunk. It was the Appellant’s further submission that the family had decided to review the matter outside court especially on the terms that his father and PW2 arrived at.

15. The Appellant submitted that he regretted taking the law into his hands. That he was a layman and a pauper and did not understand the court process and the lawful process.

16. It was the Appellant’s submission that the sentence of 20 years was harsh and excessive in light of Petition Number E017 of 2021. That the 20 years was disproportionate to the circumstances of the case. It was the Appellant’s further submission that he had been previously charged with malicious damage on the farm next to PW1’s which his father had sold to another person.

17. The Appellant submitted that the longer he stayed in prison the longer his 9 siblings would suffer. That he was a young man who was unmarried and asked this court to give him a lighter sentence so that he could go and start a family.

18. In his oral submissions before court, the Accused stated that he had a dispute with a person who had bought a shamba from his father and when he tried to follow up on the documentation, he refused and when Amos came, they fought. The Accused further submitted that he was defending himself.

19. I have gone through and given due consideration to the trial court’s proceedings, the Petition of Appeal filed on November 10, 2022, the Amended Grounds of Appeal filed on March 7, 2023, the Appellant’s Written Submissions dated March 7, 2023 and the Respondent’s Written Submissions dated March 8, 2023 and the following issues arise for my determination:-i.Whether the Prosecution proved its case beyond reasonable doubt.ii.Whether the Defence places doubt on the Prosecution case.iii.Whether the Sentence was harsh and excessive.

i) Whether the Prosecution proved its case beyond reasonable doubt. 20. Section 234 of the Penal Code provides for the offence of grievous harm as follows:-Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

21. Section 4 of the Penal Code defines grievous harm as follows: -“grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;

22. I am persuaded by Kemei J. in Pius Mutua Mbuvi v Republic[2021] eKLR, where he held that:-“…………For the appellant to be convicted of the offence of doing grievous harm c/s 231 as read with section 234 of the Penal Code, the prosecution had to prove each of the following essential ingredients beyond reasonable doubt;a.The victim sustained grievous harm.b.The harm was caused unlawfully.c.The accused caused or participated in causing the grievous harm……….”

23. In John Oketch Abongo v Republic [2000] eKLR, the Court of Appeal held that:-“Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.”

24. The victim PW1 (Paul Kipkemoi Mutai) testified that when he responded to his brother’s (PW2) plea for help at his home, the Appellant cut him on his head four times and when he tried to block the attack with his hand, he was cut on his wrist. Geoffrey C. Kirui (PW6) who was the clinical officer testified that he examined PW1 after the assault. He stated that PW1 suffered a deep cut wound on the hand, a dislocated right upper limb, tender soft tissue injury on the neck and 4 cuts on the head. That PW1 also had a deep cut wound on the thumb.

25. PW6 classified the injury as grievous harm. He also produced treatment notes and a P3 form in aid of his testimony and they were marked as P.Exh 3 and 4 respectively. With the testimony of the victim and the clinical officer, I am satisfied that PW1 sustained grievous harm which was evidently unlawful.

26. Regarding the identity of the Appellant as the perpetrator of the offence, the Court of Appeal in the case of Cleophas Wamunga v Republic[1989]eKLR expressed itself as follows:-“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.

27. The evidence on record shows that the incident happened at 8pm in the night. This means that the court must exercise caution in considering the evidence of identification. In the case of Kiarie v Republic[1984] KLR 739, the Court of Appeal held that:-“Evidence of identification/recognition at night must be absolutely watertight to justify conviction.”

28. Further, the Court of Appeal in the case of Shadrack Shuatani Omwaka vs Republic [2020] eKLR while discussing identification of an assailant at night cited with approval the decision of the Supreme Court of Uganda in Abdulla Nabulereand anotherv Uganda Cr. Appeal No. 9 of 1978 (Unreported) where the court held as follows:-“….Apart from light during the incident, and familiarity of the assailant to the victim, other factors, such as distance between them, the length of time the victim had to observe and even the opportunity to hear the assailant are factors to look out for.”….

29. PW1 testified that it was the Appellant who cut him four times on the head and on the wrist. He stated that he cut him using a double edged panga. When he was cross examined, he stated that he saw the Appellant on that material night as there was bright moonlight and that he had a torch. That the Appellant spoke to him during the fracas and he recognized his voice. PW1 stated that he was a neighbour to the Accused and that he knew him very well. It is salient to note that the Appellant submitted that he was a neighbour to PW1 hence they were well known to each other.

30. Robert Mutai (PW2) testified that the Appellant and his brother Amos Bett threatened him unless he vacated the land that he had bought from their father. That Amos begun cutting the fence as the Appellant stood guard and watched over him. PW2 further testified that when PW1 came to his aid, the Appellant attacked PW1 and cut him four times on his head. When he was cross examined, he reiterated that the Appellant cut PW1.

31. Ambrose Kipngetich (PW3) was the Appellant’s roommate and he testified that the Appellant came to sleep in his house on the material night at around 11p.m.That they were woken up later by a lot of people who had come to arrest the Appellant. It was PW3’s testimony that he recovered the Appellant’s panga in his house which was hidden beneath his shoes. That he took the panga to a nyumba kumi official called Ronald. PW7 (Ronald Kiprono Koech) corroborated this evidence by PW3.

32. No. 71496 CPL Nellius Wanjuhi (PW8) produced the panga as an exhibit and the same was marked as P.Exh 1. In her testimony, PW8 stated that when she visited the scene, she found banana stems which had been cut. This corroborated the evidence by PW1 who upon being cross examined stated that it was the Accused who cut he banana stems. PW8 also produced PW1’s blood stained clothing and the same were marked as P.Exh 2a, b, c and d.

33. I am convinced and satisfied that the Appellant was the perpetrator of the offence. The victim (PW1) and PW2 placed him at the scene of the crime and the panga that he used to cut PW1 was recovered in the house that he shared with his roommate, PW3. PW1 also stated that he knew the Appellant as they were neighbours and he also recognised him as he spoke to him during the attack. The evidence of identification and recognition is overwhelming against the Appellant and it is my finding that the he was positively identified.

34. Having established that PW1 had suffered grievous harm which was unlawful and the positive identification of the Appellant as the perpatrator, it is my finding that the Prosecution proved its case against the Appellant beyond reasonable doubt.

ii) Whether the Defence places doubt on the prosecution case. 35. I have considered the Appellant’s defence. He told the court that there was a land dispute between his family and PW2. He stated that both himself and his brother were bitter that their father had sold the family land to PW2. That Amos was the one who destroyed the fence. In essence he admitted having taken the law into his hands. He however did not admit having injured the complainant.

36. The Appellant’s defence in the lower court did nothing to shake the prosecution case. In fact, the defence explained the motive behind the attack on the complainant. I therefore dismiss the Appellant’s defence. It does not exonerate him from the offence.

iii) Whether the Sentence was harsh and excessive 37. Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. An appellate court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the court acted upon a wrong principle. The above position was enunciated by the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:-“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”1. The penal section for the offence of grievous harm is provided by Section 234 of the Penal Code which states that:-Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life

39. The Appellant was sentenced to 20 years’ imprisonment. The court in sentencing the Appellant observed that he had previous convictions of causing disturbance and malicious damage to property. The court further noted that the Appellant was not remorseful. It is my finding that the trial court having taken into consideration all these factors meted out what was then an appropriate sentence.

40. On this appeal, the Appellant submitted that he was remorseful and had learnt that it was wrong to take the law into his hands. He laments that the genesis of the problem started with his father selling the family land to the neighbours leaving their family almost landless. He submitted that his family and the complainants had agreed to resolve the land issue at home.

41. The Appellant prayed for the leniency of the court stating that the long sentence would jeopardise his chances of settling down and starting a family. He pleaded that his family of 9 siblings faced a bleak future as their father was now deceased ad their mother was jobless. He stated that he had since learnt the perils of taking the law into his hands and undertook to be law abiding.

42. I have considered the circumstances of the offence and the fact that the Appellant was now remorseful and wished to mend his ways. His submission that the family was addressing the land dispute was a positive step towards reconciliation with the complainants who were their immediate neighbours. I am prepared to give the Appellant and the complainants a chance at reconciliation to prevent any further re-offending. I shall therefor temper justice with mercy and reduce the Appellant’s sentence.

43. In the end, I uphold the conviction. The appellant shall serve 10 years’ imprisonment. As the Appellant was in pre-trial custody, and in accordance to section 333 (2) of the Criminal Procedure Code, the Sentence shall run from the date of his arrest being January 14, 2022. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 29TH DAY OF JUNE, 2023. ..........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of the Appellant acting in person, Mr. Njeru for the Respondent and Siele (Court Assistant)