[2022] KEHC 10714 (KLR)

Bwoga v Republic (Criminal Appeal E008 of 2021) [2022] KEHC 10714 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10714 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E008 of 2021

RE Aburili, J

June 2, 2022

Between

Enock Otieno Bwoga

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence from the judgment in the Principal Magistrate’s Court at Bondo in Criminal Case No. 683A of 2019 delivered on 25. 5.2021 by Hon J. P. Nandi, Principal Magistrate)

Judgment

Introduction 1. The appellant herein is Enock Otieno Bwoga. He was charged with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The particulars of the charge were that on the 13th day of October 2018 at about 0300hrs at Sanda beach, West Yimbo sub location in Bondo sub-county within Siaya County, the appellant jointly with others not before court unlawfully killed one Andrew Omondi. The appellant denied the charge and the case proceeded to full trial where the prosecution called four witnesses in support of their case. The appellant gave sworn testimony denying the charges against him.

2. In his judgement, the trial magistrate found that the appellant failed to give a reasonable defence and that his defence amounted to a mere denial. The trial magistrate thus found that the prosecution had proved its case against the appellant beyond reasonable doubt and proceeded to convict the appellant and sentenced him to serve 20 years’ imprisonment.

3. Aggrieved by the trial court’s judgment on both conviction and sentence, the appellant filed his petition of appeal on the 3rd June 2021 settinga.That the conviction was based on circumstantial evidence.b.That the evidence was full of contradictions.c.That the defence of the appellant was never put into consideration.d.That the offence was not proven to the required standard.e.That the conviction was based on mere suspicion.f.That there was no positive identification.g.That I pray for proceedings to enable me adduce more grounds of appeal.h.That may my prayer be considered before this honourable court.

4. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 5. It was submitted that whenever doubt arises in a case, the benefit should be solved in favour of the accused and further that the burden of proof of proving the falsity of the accused entirely rested on the prosecution.

6. It was submitted that there were contradictions, inconsistencies, discrepancy and conflicting evidence by the prosecution witnesses specifically on the testimony of PW1, PW2, PW3, and PW4.

7. The appellant submitted that the evidence of identification also raised doubt as the testimony of PW3 who was a minor witness needed to be corroborated to warrant a conviction pursuant to section 124 of the Evidence Act. He further submitted that no identification parade was carried out yet the trial court relied on dock identification which was worthless.

8. It was submitted that the trial court erred as it had declared PW1 a hostile witness but then turned and used part of his evidence to corroborate PW3’s testimony in its judgement. The appellant relied on the case of Shguye v Republic (1975) EA 19 in which he alleges the Supreme Court held interalia that by declaring a witness hostile it means that all the evidence presented by that witness would be discredited and not be part of it.

9. The appellant further submitted that the motive as to why he assaulted the deceased was not proved and this weakened its case as was held in the case of Nzuki v Republic (1993) eKLR.

10. It was the appellant’s further submission that he was entitled to the least severe sentence in accordance with the provisions of Article 50 (2) (p) and 24 (1) (c) of the Constitution. He relied on the case of R v Sharmpal Singh S/O Pritam Singh V/S (PC) 1962 EA where the case was reduced to manslaughter due to lack of motive and the appellant was sentenced to 8 years by the Court of Appeal.

The Respondent’s Submissions 11. In their written submissions, the Respondent’s Counsel on behalf of the Office of the Director of Public Prosecutions submitted that the prosecution proved all the ingredients of the offence of manslaughter being- the fact and cause of death, unlawful act and identity of the perpetrator.

12. It was further submitted that the death of the deceased was proved and that it was the appellant who caused the unlawful act leading to the deceased’s death as was evident from the testimony of PW3 who testified that the appellant continued to assault the deceased despite his requests and others urging him to stop. The respondent further submitted that the appellant was positively identified by PW3.

13. On the grounds of appeal raised by the appellant, it was submitted that unlike the assertion by the appellant, his conviction was based on direct evidence of PW3 and that any circumstantial evidence passed the test in the case of Sawe v Republic.

14. It was further submitted that the evidence by the prosecution was consistent without any material contradictions and that if there were any contradictions, then they were not material and were curable under section 382 of the Criminal Procedure Code.

15. The respondent submitted that the appellant’s defence was considered at paragraph 8 of the judgement and correctly dismissed at paragraph 12 of the same judgement.

16. On the appellant’s sentence, the respondent submitted that although he faced the charge of manslaughter, all ingredients for the offence of murder were proven and that therefore the court should uphold the sentence imposed by the trial court.

Analysis 17. This being a first appeal, the duty placed on this court is as was espoused by the Court of Appeal in the case of Irene Nekesa Peter v Republic [2014] eKLR where that Court stated that:“…………we are under a duty to re-examine and re-evaluate the evidence on record with the aim of reaching our own conclusions, subject to the caveat, however, that we had no advantage, as the trial court did, of seeing and hearing the witnesses.”

18. The Court of Appeal in the above cited case was following the principle long established in the case of Okeno v R [1972] E.A. 32 where the former Court of Appeal for Eastern Africa stated as follows on the duty of the first appellate Court:“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; it must make its own findings and draw its own 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….”

19. Revisiting the evidence adduced by the prosecution before the trial, PW1 testified that on 11/10/2018 at 9:00am, they went fishing with the appellant and others but that they were not lucky to catch any fish so they decided to try at night. It was his testimony that on October 13, 2018 whilst in the company of the deceased as well as the appellant and others, some people who worked with the police went to where the fishermen were and Omondi started running away after which the appellant told them to go home. He further stated that people went asking the whereabouts of Omondi who was later found dead at Ngalle area on October 13, 2018.

20. At this point the prosecutor asked that PW1 be stood down as his testimony was at variance with what he had told the police. The court obliged and when PW1 was recalled on the February 19, 2020 he testified that the appellant took a rungu and went away though he did not see what the appellant did with it. He further testified that he later learned that the deceased had passed on. In cross-examination, PW1 stated that when the deceased took off, PW1 did not follow him but that other people did.

21. PW2 No. 72847, Sergeant Eric Togoch testified that he was the investigating officer in the case and that on October 14, 2018 at 2015hrs he was at the station when one Vincent Sumba and Thomas Otieno reported that on the October 13, 2018 at 1am, fishermen at Sanda Beach were scared by some youths who were patrolling the beach and everybody ran in different directions to converge later but the deceased did not return.

22. He further testified that he later received information from the policing officer, one Aoro, that the deceased was killed and dumped in a bush nearby after which PW2 proceeded to the scene with his OCS, other colleagues as well as the family of the deceased and that they found the deceased’s body swollen with cloth tied around the mouth and with an injury on the right that was caused by a blunt object. It was his testimony that one Paul Owi Otieno identified a piece of wood which he informed him that the appellant had used to hit the deceased.

23. PW2 further testified that he recorded statements of witnesses and discovered that the accused picked a quarrel with the deceased on October 15, 2019 at 3am over some salt which they wanted to put in food they were preparing when the appellant hit the deceased with the piece of wood. He further stated that he started looking for the appellant who had gone underground and that on the September 6, 2019, members of the public arrested the appellant and escorted him to the police station where he was initially charged with murder but the same was reduced to manslaughter on advise of the Office of Director of Public Prosecutions.

24. On cross-examination, PW2 stated that he did not witness the appellant assaulting the deceased but that he was informed that the appellant used a piece of wood to hit the deceased. He admitted that the wood was kept as an exhibit though it was not dusted.

25. PW3 Paul Owi Otieno testified that on October 12, 2018 at 4pm he went to the Lake with Abraham Ochieng and others to fish at Ngara area when they were accosted by Fisheries Officials and on seeing them, Omondi took off and later returned with salt. He stated that Otieno Duba started assaulting Omondi using a piece of wood by hitting him on the head. It was his testimony that they requested Otieno to leave the deceased to go away with PW3 but that Otieno threatened to kill Omondi if he stepped in their boat.

26. PW3 testified that they left Omondi and Otieno and that he later went home and was informed that Omondi had died with his body being found in a bush about 20 metres away from where he was assaulted. He testified that the deceased’s head had been covered with a jacket and had serious injuries. He testified that it was his first time to see Otieno whom he identified as the accused in the dock.

27. In cross-examination, PW3 stated that he was 17 years old at the time of the offence and further that it was Abraham who had informed him that the appellant was known as Otieno Duba. He stated that the appellant was about 10 metres away from him when he saw him assault the deceased and that he could identify him as there was moonlight. He further testified that they left the deceased and the appellant behind as they went away. PW3 reiterated that he was with the appellant on the material date and that he saw the accused assaulting the deceased.

28. PW4 Dr. Okong’o Erick testified and produced the post-mortem report on behalf of Dr. Ochieng whom he had worked with but had since been transferred to Migori. It was his testimony that the post-mortem was done on October 22, 2018 on the body of the deceased Omondi and that on examination, the doctor indicated that there was no external injury but that there was extensive peeling of skin with burn like reaction suggesting excessive exposure to sunlight. PW4 testified that there was evidence of decomposition and that on internal examination, there was right sided accumulation of blood in the thorax and as such the doctor concluded that the cause of death was respiratory failure due to haemothorax secondary to blunt chest trauma. He produced the post-mortem report as PEX1. In cross-examination, PW4 reiterated the cause of death and that the Xray was not done.

29. Placed on his defence, the appellant testified on oath and denied the charges against him stating that he went to work at 6pm and that they finished the first round of fishing at 9pm so they moved to another place and continued fishing. It was his testimony that they went offshore and offloaded the fish but that he remained on the boat as others were on the ground. He further testified that the one on the ground told him that he was not seeing them.

30. He testified that they went to fish again and finished fishing at 4am and that after 3 days, they got information that one of them who had gone missing had been found dead. In cross-examination, the appellant stated that they were fishing with the deceased and that he did not have any dispute with the deceased and further that he did not beat the deceased.

Determination 31. Manslaughter is defined under section 202 (1) of the Penal Code as the killing of another person by unlawful act or omission. The section provides that:Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.

32. The prosecution bear the burden of proving a criminal charge against the accused person and as such in a crime of manslaughter, the prosecutor must prove that the deceased died as a result of unlawful act or omission and that the appellant was responsible for the unlawful act or omission causing the death.

33. I have considered the grounds of appeal, the submissions for and against the appeal and the evidence adduced before the trial court both by the prosecution witnesses and the appellant herein. appeal herein, the evidence adduced in the lower court and the submissions for and against the appeal. In my view, the main issues for determination emerge from the appellant’s submissions and grounds of appeal.

34. The fact of death and cause of death are not in dispute. PW2 testified that they found the deceased’s body swollen with cloth tied around the mouth and with an injury on the right that was caused by a blunt object. PW3 on his part testified that the deceased’s body was discovered with his head covered with a jacket and that it had serious injuries.

35. The question now is whether the prosecution proved that the appellant unlawfully caused the death of deceased.

36. The evidence of PW3 was that he saw the appellant beat the deceased using a piece of wood. He testified that the appellant hit the deceased on the head. PW1 reluctantly testified that he saw the appellant pick a rungu though he did not see what the appellant did with it. PW2, the investigating officer, testified that in the course of his investigations, he discovered that the appellant picked a quarrel with the deceased over some salt which they wanted to put in the food that they were preparing then the appellant hit the deceased with the piece of wood.

37. The post-mortem report produced by PW4 as PEX 1 was to the effect that the deceased had no external injuries and that the cause of death was respiratory failure due to haemothorax-blunt chest trauma.

38. The appellant denied the charges against him and stated that on the material night, he was fishing with the deceased but did not have any dispute with him.

39. The trial magistrate on his part relied on the evidence of PW3 as the basis upon which he convicted the appellant stating in paragraph 12 of his judgement that:“…He was able to see the accused with help of moonlight assaulting the deceased. They intervened in vain. This evidence clearly points at the accused as the one who was last seen assaulting the deceased.”

40. However, this evidence of what PW3 allegedly saw the appellant do to the deceased in no way connects to the injuries sustained by the deceased prior to his death. The evidence of PW4 was clear that there were no external injuries on the deceased’s body and therefore, if at all the appellant’s alleged assault on the deceased was the proximate cause of the deceased’s death, then there would have been some injuries on his head. Even the injuries described by PW2 were never found to exist by the Doctor who performed an autopsy on the body of the deceased.

41. The trial magistrate further in paragraph 13 of his judgement stated as follows:“In conclusion, I find that the accused has not given any reasonable defence as his defence amounts to mere denials and reject the same…”

42. This observation and conclusion by the trial magistrate was erroneous in the sense that it implied that it was upon the appellant to prove his innocence failure to which he would be convicted and indeed he was convicted. This is not the law. It is the prosecution that bears the burden of proving any unlawful act or omission on the part of the appellant and the standard of proof required is that of beyond reasonable doubt. Although the appellant made denials in his defence, he was within his rights. He could have as well remained silent. he was under no duty to challenge and adduce any evidence. he was also under no duty to give any self-incriminating evidence. He enjoys those rights under Article 50(2) of the Constitution. Those rights cannot be limited through judicial pronouncement. This would not have implied that he is guilty. It was upon the prosecution to prove beyond reasonable doubt that the appellant was the one who caused the unlawful act or omission that led to the deceased’s death.

43. From the evidence presented before the trial court and scrutinised above, I am not persuaded that the prosecution succeeded in proving its case against the appellant beyond reasonable doubt. The medical evidence adduced in the post-mortem report exonerated the appellant from any culpability.

44. The evidence of PW3 that he saw the appellant assault the deceased on his head with a piece of wood was not consistent with the injuries sustained by the deceased as contained in the post-mortem report produced by PW4. Furthermore, the testimony of PW1 that he saw the appellant take a rungu and leave with it in my view was not evidence of the appellant assaulting the deceased whom PW1 stated, escaped from the place upon seeing the people who came with the police and who are said to have been fisheries officers. This evidence amounted to mere suspicion. The Court of Appeal in Mary Wanjiku Gichira v Republic, Criminal Appeal No 17 of 1998, held that:“suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life.”

45. In the circumstances, I find and hold that the trial court’s conviction and sentence of the appellant was unsafe. That conviction of the appellant is hereby quashed and sentence of twenty years’ imprisonment imposed on the appellant for the offence of manslaughter is hereby set aside. Accordingly, unless otherwise lawfully held, the appellant herein Enock Otieno Bwoga is hereby set at liberty forthwith.

46. File closed.

47. Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 2ND DAY OF JUNE, 2022(VIRTUALLY THE APPELLANT PRESENT AT KISUMU MAXIMUM PRISON)R.E. ABURILIJUDGE