[2017] KEHC 2947 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT VOI

CRIMINAL APPEAL NO 65 OF 2016

CHRISPINE MWANGOMBE MWAKINYOI..............APPELLANT

VERSUS

REPUBLIC.............................................................RESPONDENT

(From original conviction and sentence in Criminal Case Number 23 of 2016

in the Senior Principal Magistrate’s Court at Wundanyi delivered

by Hon N. N. Njagi (SPM) on 25th November 2016)

JUDGMENT

1. The Appellant herein, Chrispine Mwangombe Mwakinyoi, was charged with three (3) Counts of assault contrary to Section 251 of the Penal Code Cap 63 (Laws of Kenya). Hon K.I. Orenge, Senior Resident Magistrate took evidence of four (4) witnesses while Hon N.N. Njagi, Senior Principal Magistrate (hereinafter referred to as “the Learned Trial Magistrate”) took evidence of the last Prosecution witness and that of the defence.

2. Upon hearing the case, the Learned Trial Magistrate convicted the Appellant and sentenced him to two and a half (2 ½) years for each Count. He also directed that the sentences would run consecutively.

3. The particulars of the charges were as follows:-

COUNT I

“On the 14thday of January 2016 at about 12. 15 pm at Itange Village, Kishushe Sub-location Kishushe Location within Taita Taveta County unlawfully assaulted HOPE MWATELE thereby occasioning her actual bodily harm.”

COUNT II

“On the 14th day of January 2016 at about 12. 15 pm at Itange Village, Kishushe Sub-location Kishushe Location within Taita Taveta County unlawfully assaulted HOPE SHOLE MKIREMA thereby occasioning her actual bodily harm.”

COUNT III

“On the 14th day of January 2016 at about 12. 15 pm at Itange Village, Kishushe Sub-location Kishushe Location within Taita Taveta County unlawfully assaulted CONSTANCE MANGA thereby occasioning her actual bodily harm.”

4. Being dissatisfied with the said judgment, on 23rdJanuary 2007, the Appellant filed a Notice of Motion application seeking leave to file his Petition of Appeal which application was granted and deemed to have been duly filed and served. He relied on five (5) Grounds of Appeal.

5. This being a first appeal, this court is mandated to analyse and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo vs Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”.

6. After perusing the Appellant’s Petition of Appeal and his Written Submissions as well as those of the State, this court was of the view that the only issue that had been placed before it for determination was whether or not the Prosecution had proved its case beyond reasonable doubt.

7. The Appellant argued that the Prosecution’s case was disjointed and not credible thus raising many unanswered question. He contended that it was not possible for him to have attacked the Complainants, Hope Mwatele Hope Shole Mkirema and Constance Manga (hereinafter referred to as “PW 1”, “PW 2” And “PW 3” respectively) without members of public who had come to PW 1;s homestead not intervening.

8. He also contended that the evidence of AP No 1993947570 Corporal Matano (hereinafter referred to as “PW 4”) was ambiguous as it was not clear which “Hope” he was referring to as PW 1 and PW 2 both shared the same name. Further, he averred that his evidence was heresay as he never saw the Appellant herein having assaulted PW 1, PW 2 and PW 3.

9. He also questioned why PW 1’s son did not testify. He submitted that critical witnesses were not called to testify in the Trial which he stated was fatal to the Prosecution’s case. In this regard, he referred this court to the case of Criminal No 40 of 2001 Machakos (full citation not given) where the state therein conceded to the appeal as members of public were not called to testify as witnesses.

10. He also submitted that the Prosecution’s evidence was disjointed because PW 1 contradicted regarding what had transpired and that she never mentioned the Appellant’s brother. He stated that it was not possible for him to have assaulted PW 1 and PW 2 who were at different places at the material time.

11. On its part, the State denied that the Prosecution case was disjointed and stated that PW 1’s, PW 2’s and PW 3’s evidence was in fact cogent and concise as it was corroborated by the evidence of Dr Nashat Fadhloon Noor (hereinafter referred to as “PW 5”).

12. It argued that at no time did the Appellant deny having been at the scene of crimeand consequently urged this court to dismiss his Appeal as it was not merited.

13. According to the proceedings, on 14th January 2016, the Appellant, who was accompanied by his brother,met PW 2 at the water point and accused her of being a witch. He kicked utensils and started beating her with his fists. She started screaming and members of public came to her rescue. He was then arrested and taken to Wundanyi Police Station.

14. The Appellant and his brother had also gone to the house where PW 1 was and told her that she was a witch. He had thrown stones at the house and when she went out to check what was happening, he hit her and threatened that he would kill her son. She then retreated into the house. Many members of public came to the scene. The Appellant also kicked and hit PW 3 who he met along the way whereafter he was arrested by the police.

15. It was not clear from the evidence of PW 1, PW 2 and PW 3 who was the first to be beaten. What was clear was that the Appellant beat the three of them and PW 4 arrested him at the scene. The P3 Reports indicated that they had all sustained injuries which PW 5 classified as “harm.” In his sworn statement, the Appellant denied having beaten PW 1, PW 2 and PW 3 or knowing if they were assaulted.

16. In his Judgment, the Learned Trial Magistrate appreciated that the Appellant was positively identified as having assaulted PW 1, PW 2 and PW 3. This court could not have agreed more with him. While the Appellant had argued that critical witnesses were not called to testify, Section 143 of the Evidence Act gives the prosecution discretion to decide the number of witnesses it will call to prove its case.

17. The members of public who came to the scene were not crucial witnesses as PW 4 arrived at the scene and found the members of the public intending to lynch the Appellant. PW 1’s son was not a necessary witness as her evidence that she sustained injuries was corroborated by PW 5. His assertions that PW 1’s, PW 2’s and PW 3’s evidence was disjointed though true, it did appear to this court that he attacked them while they were at different places.

18. Section 251 of the Penal Code provides as follows:-

“Any person who commits an assault occasioning bodily harm is guilty of a misdemeanour and is liable to imprisonment to five years.”

19. The evidence that was adduced by the Prosecution proved beyond reasonable doubt that the Appellant assaulted PW 1, PW 2 and PW 3. This court was therefore satisfied that the penalty that was imposed upon him by the Learned Trial Magistrate was fair and this court ought not to disturb it. In view of the fact that the Appellant accosted PW 1, PW 2 and PW3 in the circumstances aforesaid, the Learned Trial Magistrate exercised his discretion judiciously when he ordered that the sentences he imposed upon the Appellant would run consecutively. The same was lawful and justifiable.

DISPOSITION

20. Accordingly, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 23rdJanuary 2017 was not merited and the same is hereby dismissed. This court hereby affirms the conviction and sentence that was meted upon him by the Learned Trial Magistrate.

21. It is so ordered.

DATED and DELIVERED at VOI this 10thday of October2017

J. KAMAU

JUDGE

In the presence of:-

Aywa h/b for Mwinzi for Appellant

Miss Anyumba for State

Josephat Mavu– Court Clerk