[2022] KEHC 13968 (KLR)

Director of Public Prosecution v Mugambi & another (Criminal Appeal E002 of 2022) [2022] KEHC 13968 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13968 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Appeal E002 of 2022

LW Gitari, J

October 12, 2022

Between

Director of Public Prosecution

Appellant

and

Julius Mugambi

1st Respondent

Issack Mugendi

2nd Respondent

Ruling

1. This is an appeal by the state against the acquittal of the respondents by the Senior Resident Magistrate’s Court at Marimanti, for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. It was alleged that on April 25, 2019 at Gakurungu location in Tharaka Nithi county, the respondents herein jointly assaulted one Kenneth Muturi thereby occasioning him actual bodily harm. From the record it is not clear as to how the respondents pleaded, the lerarned trial magistrate recorded- not guilty plea entered.

2. The prosecution called 5 (five) witnesses while the respondents’ testified and called two other witnesses in their defence. After a full trial, the trial court acquitted the respondents under section 215 of the Criminal Procedure Code after finding that the prosecution had failed to prove its case beyond any reasonable doubt.

3. Being dissatisfied with the judgment of the trial court, the state instituted the instant appeal based on the grounds set out in the petition of appeal dated January 31, 2022. These are:a.That the learned trial magistrate erred in law and fact by acquitting the respondents despite the overwhelming evidence adduced by the prosecution.b.That the learned trial magistrate erred in law and fact by finding that the investigating officer was not a neutral witness and had taken sides with the prosecution witnesses.c.That the learned trial magistrate erred in law and fact by finding that the complainant may have sustained the injuries from a fall as opposed to an assault.d.That the learned trial magistrate erred in law and fact by considering extraneous factors at arriving at the decision.e.That the learned trial magistrate erred in law and fact by acquitting the respondents considering the circumstances of the case.

4. The appeal was canvassed by way of written submissions. Hereunder is a summary of the respective rival submissions.

The Appellant’s Submissions 5. The appellant filed its written submissions on April 27, 2022. It was the appellant’s submission that prosecution at the trial court established the essential elements required to prove the commission of the subject offence. According to the appellant, the evidence of PW2 and PW4 established that PW2, the complainant herein, was assaulted by the respondents, and revealed that their motive for assaulting PW2 was a land dispute. It was further the appellant’s submission that the evidence of PW1, a clinical officer, proved that the complainant suffered soft tissue injuries on his anterior chest and abdomen as a result of the assault occasioned upon him by the respondents.

6. On the issue of whether or not the investigating officer was a neutral witness, it was the appellant’s submission that PW5, who was the investigating officer, duly carried out his mandate of receiving the victim’s complaint and conducting investigations. The appellant further submitted that no evidence was adduced to suggest that the said PW5 was partial in carrying out of his duties and that as such, the court erred in finding that he was not a neutral witness.

7. Finally, the appellant faulted the trial court for finding that the injuries sustained by the complainant were sustained after he fell while chasing the respondents. The appellant submitted that it could not be deduced from the evidence adduced by the prosecution witnesses that the complaint sustained injuries after falling as alleged. According to the appellant, the defence witnesses were categorical that it was the complainant’s mother who chased them and not the complainant himself. The appellant thus concluded by submitting that the evidence adduced by the prosecution at the trial court was sufficient to support a finding of guilt against the respondent. For that reason, the state prayed for the setting aside of the respondents’ acquittal by the trial court and for this court to consequently convict and sentence them accordingly.

The Respondents’ Submissions 8. The Respondents filed their joint submissions on 10th May 2022 through their counsel on record. It was their submission that their acquittal by the trial court was proper as the said court correctly found that the investigating officer was not a neutral witness after having the advantage of observing and hearing the witnesses who testified before the court. They thus prayed for the finding by the lower court to be upheld.

Issues For Determination 9. Having considered the record of appeal, the parties’ respective submissions and the applicable law, the core issue that arises for determination by this court is whether the prosecution proved its case beyond any reasonable doubt.

10. Hereunder is an analysis of the issues highlighted above.

Analysis Proof of the case against the respondents to the requisite standard 11. This being a first appeal, the duty placed on this court is as stated in the case of Kiilu and another v R (2005) 1 KLR 174 where the court held that:“an appellant in a 1st appeal is entitled to expect the whole evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision in the evidence. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusions.”

12. It is trite that the legal burden of proof in criminal cases lies on the prosecution to prove its case against the accused persons beyond any reasonable doubt.This being an appeal from the Magistrate’s Court, the record of court forms an important document in this court. The record in what this court will rely on is to determine the appeal as unlike the trial court, which saw the respondents and witnesses and recorded all what transpired as well as observing the demeanor of the witnesses, this court will not have that advantage. In Okeno v Republic (1972) E A v R 32. The court stated that:-“It is not the function of the 1st appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion, it must make its findings and draw its own conclusion. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

13. In this matter the record of the trial magistrate commences with plea taking. Plea taking is important as it determines how the case will progress thereafter. The procedure in plea taking is provided in under section 207 ofCriminal Procedure Code. The section provides:-“(1)The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement; (2) If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary: Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded. (3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided. (4) If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him. (5) If the accused pleads - (a) that he has been previously convicted or acquitted on the same facts of the same offence; or (b) that he has obtained the president’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.”From the record of the trial magistrate, no plea was recorded.The learned trial magistrate proceeded to record a plea of not guilty against the accused without any indication that they refused to plead. The above section requires that the plea be recorded and if he refuses to plead the court proceeds to record a plea of guilty. No prejudice was occasioned as a plea of not guilty was recorded and the trial proceeded as thought hey had entered a plea of not guilty

14. The respondents herein were charged with the offence of causing actual bodily harm contrary to section 251 of the Penal Code which provides that:“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”

15. The essential elements of the offence of assault causing actual bodily harm were stated by the Court of Appeal in the case of Ndaa v Republic[1985] eKLR which held that:“The ingredients of the offence of assault causing actual bodily harm are:(a)assaulting the complainant or victim;(b)occasioning actual bodily harm.”

16. Accordingly, in order to secure a conviction on the offence of causing actual bodily harm, the prosecution was to prove beyond any reasonable doubt that the respondents assaulted the complainant and that actual bodily harm was occasioned on the complainant.

17. Briefly, the prosecution’s case is as summarized below.

18. PW2, the complainant, testified that on the material day at about 4. 30 pm, he was at home with his mother when his younger brother came and told him that the 1st respondent almost hit him with a motorcycle for stopping some people from working on their farm. The respondents arrived at the PW2’s home shortly thereafter and PW2 took photos of the 1st respondent as he entered their farm. According to him, the 1st respondent got annoyed and started hitting PW2 on his chest and shoulder. PW2 then fell and the 2nd respondent came and hit him thrice with a stone. PW2’s mother then called a neighbour and that is when the respondents left. PW2 consequently reported the incident at Tunyai police station before he went for treatment. It was PW2’s testimony that the motive behind the alleged assault was a land dispute.

19. Mariam Mukwa Mugao (PW3) was the complainant’s mother who corroborated the evidence of PW2. It was her testimony that the respondents were their neighbours and that they have been having a history of differences between them over a land dispute. She further stated that on the material day, the respondent were armed with stones and beat up the complainant. On cross examination by the 1st respondent, PW3 stated that the complainant had a previous shoulder fracture and had a metal plate inserted and the respondents hit him on the same shoulder.

20. Alice Wanjiru Gakurungu (PW4) was working as a casual labourer at the farm of PW3 on the material day. She was planting. According to her, the 1st respondent came to the farm and asked her to stop working in that land. The 1st respondent then left and returned in the company of the 2nd respondent. PW4 stated that the respondents started beating PW2 using stones for taking photos of them at the scene. At this point, PW4 stated that she left the farm to avoid getting hurt.

21. PW1 produced a P3 form for the victim who alleged that he was assaulted by two people known to him. The victim sustained injuries on his chest, right shoulder and abdomen.

22. PW5, CPL Kiema Willy, was the investigating officer in this case. He stated that he first received a report of the incident from the 1st respondent and shortly afterwards, the complainant went to the police station to report the same incident. PW5 sent PW2 for treatment. He then visited the scene and noted that there was a land dispute. He asked the village elders and found out that PW2 was the one with the titles to the land. According to him, the respondents attacked PW2 in his farm and their motive was to re-possess the disputed land. On cross examination by the 1st respondent, PW5 testified that PW2 had visible injuries when he went to report the matter.

23. When put to their defence, the 1st respondent acknowledged that there was a land issue between the parties and that he was at the scene with the respondent on the material day. According to the 1st respondent, the subject land belonged to his deceased father although he does not have the title documents. He denied assaulting the complainant stating that they went away when the complainant’s mother started screaming and calling them thieves.

24. On his part, the 2nd respondent corroborated the testimony of his co-accused by stating that the 1st respondent asked him to accompany him to the farm on the material day. He stated that complainant took photos of the 1st respondent while the complainant’s mother started screaming and throwing stones on the 1st respondent.

25. DW3 and DW4 both stated that they heard screams and then saw the 1st respondent emerging from the farms. None of the two defence witnessed saw the alleged assault.

26. In the end, it was the trial court’s finding that the only independent witness in this matter was the investigating officer but held that he appeared to have taken sides as he failed to give audience to the respondents when they went to report the incident. The trial magistrate further concluded that there was doubt on how the complainant sustained the injuries given that the parties were chasing each other.

27. There is no dispute on whether the prosecution witnesses positively identified the respondents as the perpetrator of the subject offence. The complainant, PW3 and PW4 know the respondents, as they are all neighbours. In addition, the respondents acknowledge that there were at the scene of the crime on the material day.

28. On the issue as to whether the respondents assaulted the complainant, the testimonies of PW2, PW3, and PW4 point to the fact that the respondents beat the complainant using stones. According to PW3, when the 1st respondent returned to her farm with the 2nd respondent, she went to call a neighbor named Njeru. On returning, she found the respondents beating the complainant using stones. All along, PW4 was watching from a distance as the respondents were beating the complainant. As a reaction to the beating, the complainant screamed and his screams were heard by PW3, PW4, DW3 and DW4.

29. On the one hand, the 1st respondent contends that he ran away from the farm for fear of being attacked by PW3 who was armed with stones when she started screaming. On his part, the 2nd respondent testified that PW3 actually threw stones on the 1st respondent.

30. PW5 told the court that he first received a report of the incident from the accused persons. That the 1st respondent told him that he had been attacked while inspecting his father’s mango trees. Shortly after, PW2 went to the station and made his report. After conducting his investigations, PW5 decided to charge the respondents on account that PW2 had visible injuries and after finding out that the respondents had entered into a land that did not belong to them.

31. The finding by the trial court was that the investigation officer was the only independent witness but failed to give the respondents an audience. In my view, this was an erroneous finding. After both parties made their respective reports at the police station, PW5 allowed them to go freely pending investigations. PW5 told the trial court that he visited the scene and found that there was a land dispute. He inquired from the villagers/elders and found that PW2 held the title to the disputed land. He thus concluded that the respondents attacked the complainant (PW2) in his farm. It is at this point that PW5 decided to charge the respondents. PW5 had a basis for believing the complainant as he had visible injuries, a fact which was corroborated by medical evidence tendered by PW1.

32. It is notable that PW3 is the mother to the complainant and PW4 was a casual labourer on their farm. However, the fact that a witness is related to the complainant does not disqualify their independence. In Keter v Republic [2007] 1 EA 135, the court held inter alia that:“Whether or not a witness is to be believed is a matter for the discretion of the trial court. Judicial discretion is based on evidence and sound principles. The practice of criminal law courts is that the trial magistrate or judge has to observe the demeanor and other factors to decide whether any particular witness is a witness of truth or not. There is no principle of law which entitles a court to disbelieve a witness merely because the witness is related to either the complainant or the accused.”

33. I am persuaded by the above holding and bearing in mind that this court did not have the advantage of hearing and seeing the witnesses, it is my view that PW5 was not the only independent witness. PW2, PW3 and PW4 were equally competent and independent witnesses and their evidence was well corroborated. In criminal matters, corroboration is important as it tends to confirm the occurrence of what is alleged to have happened. It is defined as “evidence which confirms or supports a statement, theory, or finding; confirmation.” see Oxford Dictionary corroboration is evidence in support of other evidence to prove an account, statement, and so on. Well corroborated evidence in this case was sufficient to prove the fact of assault.

34. The trial court also opined that it was possible that the complaint was injured when the parties were chasing each other. The trial court thus expressed its doubt that the respondents, who are young men coming from a different region from that of the complaint, could have attacked the complainant unarmed while the complainant was at his home, during the day, and in the presence of other village. In my view, the respondents’ youthfulness or abode are the extraneous factors that the trial court ought not to have embarked on in considering the case. The only relevant factors for consideration was whether the respondents assaulted the complainant and whether the assault occasioned him actual bodily harm.

35. Taking the evidence adduced before the trial court in totality, it was well corroborated and no doubts were cast as to the happenings at that material time. It proved that the respondents assaulted PW2 occasioning him actual bodily harm on him. PW2’s testimony taken together with the two eyewitness accounts of PW3 and PW4 and with medical evidence showing that the complainant was harmed there is prove that the respondent assaulted PW2. The assault occasioned actual bodily harm on PW2. This was proved by the testimony of the clinical officer (PW1) who stated that the degree of the injuries occasioned on PW2 was assessed as harm. As such, I find that the elements of the offence of assault causing actual bodily harm were established beyond any reasonable doubt. The assault by the two respondents was intentional. Criminal liability was established as the respondents assaulted the complainant which is the actus reus and the motive of the assault which is the mensrea, was the prevailing land disputesection 354 of the Criminal Procedure Codeprovides for the powers of this court. Section 354 3(c) provides:“The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may -(c)in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of re-hearing or otherwise, with such directions as the High Court may think necessary,.”and make such other order in relation to the matter, including an order as to costs, as the High Court may think fitThe section makes provision on how the court is to proceed where the appeal succeeds or fails.

Conclusion 36. From the foregoing analysis, I opine that the present appeal is merited I allow it and set aside the respondents’ acquittal by the trial court. I will proceed to impose the sentence on the respondents. The respondents will each pay a fine of Kshs 10,000/- or in default serve three (3) months imprisonment each.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF OCTOBER, 2022. L.W. GITARIJUDGE12/10/2022The Judgment has been read out in open court.L.W. GITARIJUDGE12/10/2022