[2014] KECA 230 (KLR)

DKC v Republic (Criminal Appeal 184 of 2009) [2014] KECA 230 (KLR) (27 November 2014) (Judgment)

DKC v Republic [2014] eKLR

Neutral citation: [2014] KECA 230 (KLR)

Republic of Kenya

In the Court of Appeal at Nakuru

Criminal Appeal 184 of 2009

ARM Visram, MK Koome & JO Odek, JJA

November 27, 2014

(SITTING AT NAKURU)

Between

DKC

Appellant

and

Republic

Respondent

(An appeal from the judgment of the High Court at Kericho (Ang’awa, J.) dated 3rd August, 2009 in H.C.CR.A NO 7 OF 2009)

Judgment

1. This is an appeal from the judgment of the High Court (Ang’awa, J.) dated 3rd August, 2009 wherein the appellant was convicted and subsequently sentenced to life imprisonment for the offence of murder. We must state at the outset and with tremendous respect to the leaned trial Judge that the proceedings in this matter were recorded in a slovenly manner, such that it has been very difficult for us to decipher and comprehend some of the evidence. Be that as it may, this is a first appeal and that being so, we have a duty to re- evaluate the entire evidence and come up with our own independent conclusion on whether to allow the appeal or not. See Okeno –vs- R., [1972] EA 32 at p. 36, where the predecessor of this Court stated:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (PANDYA V. R., [1957] EA 336) and to the appellant court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilel M. Ruwal V. R., [1957] EA 570). 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 take 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, see Peters V. Sunday PosT [1958] EA 424”.

2. Bearing the above principles in mind, we re- visit the background of this matter in which the appellant, DKC, then a minor aged 15 years was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge were that on the 18th day of January, 2009 at Sotik town of Sotik District of Rift Valley Province, the appellant murdered Robert Rutto (hereinafter referred to as the deceased) at a place called the “7 star” hotel.

3. The appellant was arraigned before the High Court at Kitale on the 3rd February 2009, but the trial Judge rightly postponed the plea taking to the 12th February, 2009 as the appellant had not been assigned the services of a legal counsel. On that date the appellant, stated that he was 15 years of age, having been born in 1994. The appellant’s plea of not guilty was recorded and the prosecution called a total of nine witnesses in support of the charge against the appellant.

4. It was the prosecution’s case that on 18th January, 2009 at around 11:00 p.m., the appellant stabbed the deceased with a knife thereby inflicting a fatal injury on the deceased. PW 1, Wesley Ngetich (Wesley), testified that that he was a vendor at a kiosk near the “7 star” Hotel, and that on the night of 18th January, 2009 at 11:00 p.m. while at the hotel he heard the deceased screaming from outside saying that; “D has stabbed me with a knife”. Wesley went outside; he found the deceased lying on the ground near the kitchen door. He tried calling out the deceased, but he did not answer, that is when he rang his supervisor who came to the hotel after a short while and looked for a vehicle which took the deceased to the hospital. However upon arrival at the hospital, the deceased was pronounced dead. Wesley testified that he knew the deceased and the appellant. He also stated that he was with the appellant on the material night and he responded when the deceased screamed.

5. PW 2, Vivian Chebet (Vivian), who was not sure as to when she was born but was subsequently affirmed by the court, testified that she was a resident of Sotik; and that on the night of 18th January, 2009 at around 11. 30p.m. in the company of PW3, Nelly Cherono (Nelly) they went to Sotik Hotel and ordered some food. They were however informed that food had run out. Vivian then ordered for a soda which she drunk within the hotel premises. A few minutes later, the appellant declared that any person who was not taking a meal should leave. Vivian promptly complied with the appellant’s order. However, as she made for the exit, the appellant slapped her. An unidentified person informed Vivian not to speak to the appellant as he was drunk. Thereafter, Vivian proceeded to her home and retired for the night. Moments later, someone knocked her door and informed her that someone had been injured at the hotel and that he was being taken to hospital. She came to learn later that the deceased had been stabbed in the chest.

6. Vivian also testified that she did not know Dennis (the appellant) by his other name though she had met him before. She identified the appellant as the one who had slapped her.

7. PW 3, Nelly Cherono (Nelly) a young woman aged 19 years old at the time, testified that she eked out a living roasting maize and resided at Caltex near Sotik. It was also her testimony that on the night of 18th January, 2009 at 11. 30p.m. She was at the “7 stars hotel” with her friend Vivian. They ordered for food but they were informed that food had run out. She also testified that she was informed that if she was not having a meal then she should leave the premises. They therefore ordered sodas which they drunk before leaving the hotel. As Nelly and Vivian were leaving the hotel, the appellant slapped Vivian whereupon the deceased came to Vivian’s rescue. Nelly testified that at that point in time the appellant informed the deceased that he would kill him. In reply, the deceased asked the appellant why he had slapped Vivian, a question which the appellant did not take kindly as a scuffle ensued between him and the deceased. It was also Nelly’s testimony that she saw the appellant stab the deceased with a knife, before she and her companion left the hotel.

8. PW4, Richard Kipngetich Birir (Richard) with PW 5, Hillary Kipkemoi Rotich (Hillary) took the deceased to hospital. Richard testified that on the night of 18th January, 2009 he was at the hotel around 11:00 p.m. which was about closing time. According to Richard, it was his duty to see to it that the premises were locked after the cleaners had cleaned up. On the night in question, he opened the lock and instructed the cleaner to close the hotel once he had finished his cleaning duties. Richard then left with Hillary but they were interrupted mid-way by a phone call. The caller informed them that someone had been stabbed at the hotel. They returned to the hotel and upon arrival they found the deceased lying face down on the ground. Hillary and Richard looked for transport that took the deceased to hospital, however upon arrival at Kaplong Hospital; they were informed the deceased had succumbed to the injuries. Hillary used to operate a shop within the precincts of the hotel. His evidence corroborated that of Richard.

9. The body of the deceased was identified by his father, PW 6, Joseph Kipruto Mibei (Joseph) on 20th January, 2009; Robert Kipkorir Rutto. PW 7, Victor Kiptonui Mabwai (Victor) participated in the identification of the body of the deceased for purposes of the post-mortem examination that was carried out by PW 8, Dr. Joyce Chebose Tonui (Dr. Tonui) on 20th January, 2009. Dr. Tonui testified that the body of the deceased had a deep cut 3cm long to the left anterior chest. She formed an opinion that the cause of death was cardio vascular arrest due to severe bleeding. The matter was reported to PW 9, Police Constable Felix Munyao (PC Munyao) who was at the material time stationed at Sotik Police Station. The report was made by Hillary and Robert.

10. The appellant was found to have a case to answer, placed on his defence; he opted to give an unsworn statement. The tenor of his defence was that he was at the “7 star hotel” on the material night, a fight or scuffle had ensued between him and an unidentified person which prompted him to draw a knife. The appellant did not say whether or not he stabbed the deceased. He stated that it was his father who advised him to go and report the foregoing events (presumably) to the police.

11. The trial court proceeded to convict the appellant and sentenced him to life imprisonment. It is against the backdrop of the said decision that the appellant has filed the present appeal based on his own homegrown grounds of appeal to wit:- That he never pleaded guilty to the charge.

That the learned trial Judge erred in law and fact in convicting and sentencing him by relying on the evidence of PW1, PW2 and PW3, PW3 remained to be single evidence as no one claimed to have witnessed the alleged murder episode except PW3 whose evidence was not strong enough to warrant a conviction.

That the learned trial Judge erred in law and fact by holding that the prosecution proved a prima facie case against the appellant, yet failed to note the contradictions of the prosecution witnesses, namely PW2 and PW3.

That the learned trial Judge further erred in law and fact in convicting and sentencing the appellant , yet failed to note that the sharp object was not brought as an exhibit as required in criminal trials.

That the learned trial Judge erred in law and fact when she convicted and sentenced me yet breaching a rule of law by next(sic) presenting any report on finger prints and identification at the scene of crime as per the honourable court’s jurisdiction.

That the learned trial Judge erred in law and fact by convicting and sentencing me, yet failed to consider the probation report, school reports, chief and village elders. I pray for re-analysis and re-evaluation of the same and the final decision be made upon (sic) the honourable court.

That the learned trial Judge further erred in law and fact by rejecting my defence which was an alibi and strong to warrant an acquittal.

That the sentence imposed was very harsh and cruel.PARAGRAPH 12.

12. During the hearing of this appeal, the appellant was represented by Mr. Nyaingiri who argued the appeal on his behalf. His submissions in brief were that:-i.Plea was not properly taken as the language in which it was taken is not indicated;ii.Evidence of PW1 (Pg 14), PW2 (Pg 17)&PW7 (Pg 28) does not indicate the language in which it was taken;iii.Evidence of PW3 that she saw the deceased being stabbed was uncorroborated;iv.PW2 and PW3 tendered contradictory evidence as to whether the deceased was intoxicated;v.PW1 was not at the crime scene;vi.The deceased was drunk and was not provoked by the appellant;vii.The trial judge imported the word ‘women’ equating it with the world ‘child’;viii.PW8 admitted to receiving the sum of Kshs. 5, 000/= from the father of the deceased to conduct the post-mortem on the deceased. Counsel submitted that this payment may have influenced the outcome of the post-mortem.ix.Nobody saw the appellant fighting the deceased save for PW1;x.The appellant was aged 15 years and had no motive to kill anybody;xiThe appropriate sentence should be probation.

13. The State through Mr. Chirchir, learned Senior Principal Prosecution Counsel, opposed the appeal on conviction but conceded that the life sentence was not provided for under the Children Act responded as follows:-xiiLanguage is not always indicated on the court record; especially where there is an interpreter, in any case the appellant was represented by counsel who should have alerted the court that the appellant did not understand the proceedings.xiii.The post-mortem report was admitted in evidence without any objection from the appellant’s counsel; moreover there is nowhere on record where Dr. Tonui admitted that she was paid the sum of Kshs. 5,000/=.xiv.A prosecution witness called Nelly saw the appellant stab the deceased. Also PW1 heard the deceased cry out that Dennis had stabbed him, which was a dying declaration.xv.The appellant was well known to the other witnesses; and that he had voluntarily surrendered to the police and confessed to the crime. Furthermore, he admitted that he had fought with the deceased and inflicted serious injuries on him.xvi.Counsel conceded the appeal on sentence and submitted that the trial Judge had failed to consider the probation report and the best interest of the child as prescribed under Section 4(2) of the Children Act. He urged the court to dismiss the appeal on conviction but allow the same on sentence.

14. From the summary of the evidence that was before the trial Court, the record of appeal and submissions by both counsel for the appellant and the State, we have distilled the following issues which we think fall for our determination;-1. Did the appellant commit the offence of Murder?2. Did the prosecution prove beyond reasonable doubt that it was the appellant and none other murdered the deceased?3. Was the appellant’s conviction safe in the circumstances?4. Was the appellant a minor? If so, what was the appropriate sentence?

15. We shall deal with the said issues seriatim; on the issue of whether the appellant committed the offence of murder as charged, we wish to refer to the provisions of Section 203 of the Penal Code states that:-“Any person who with malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder”.

16. To prove an offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. These are: (a) the death of the deceased and the cause of that death; (b) that the appellant committed the unlawful act which caused the death of the deceased and (c) that the appellant had harbored malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).

17. Instances when malice aforethought is established are also provided for under Section 206 of the Penal Code:-“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstance:-(a)An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)An intent to commit a felony;(d)An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

18. Evidence of malice aforethought in the instance case can be inferred from the testimony of Nelly who testified that she heard the appellant threatening the deceased by uttering the words: - “I will kill you” and that she saw the appellant stabbing the deceased with a knife. The threat in question came to pass with the stabbing and subsequent death of the deceased; a fact that was subsequently confirmed by Dr. Tonui who conducted the Post-mortem examination on the body of the deceased and produced the report dated 20th January, 2009. The cause of death was identified as cardio vascular arrest due to severe bleeding occasioned by a deep cut 3cm long to the left anterior part of the chest.

19. Whereas the credentials and the conduct of Dr. Tonui during the Post-mortem exercise were impugned by defence counsel during cross-examination at the trial court, no objection was made to the production of the Post-mortem report she tendered as evidence. Dr. Tonui’s conduct was equally berated by the trial Judge in her judgment. Her testimony was accepted nonetheless. The post mortem report confirmed that the deceased’s death was caused by an unidentified sharp object.

20. Evidence of an unlawful act or omission on the other hand can be gleaned from the testimony of Wesley who testified that he heard the deceased screaming from outside that: - “I have been stabbed with a knife by D (the appellant).” The testimony of Vivian, Richard, Hillary, Joseph, Victor and PC Munyao also corroborates and confirms the occurrence of an unlawful act or omission namely the stabbing of the deceased.

21. On the second issue of whether the Prosecution proved beyond reasonable doubt that the appellant had committed the offence of Murder. This can be answered by referring to the evidence of; Vivian, Nelly and Richard. There are however several inconsistencies which can be attributed partly to the problems of translation and poor recording of the evidence. We have closely considered the lapses and inconsistencies and are of the view that the case and thread for the prosecution’s can be deciphered and the appellant was not prejudiced as it has not been raised as a ground of appeal. These inconsistencies can be cured under the provisions of Section 382 of the Criminal Procedure Code, Cap 75, Laws of Kenya which provides;“Subject to the provisions herein-before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

22. Also see the case of; Joseph Maina Mwangi -vs- Republic- Criminal Appeal No. 73 of 1993 Tunoi, Lakha and Bosire JJA, held:-“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentences.”

23. Although the appellant was not obliged to say anything in defence, he opted to give unsworn evidence in which he confirmed that he was present at the scene of the crime on the night in question; he fought with somebody and drew a knife. This evidence taken in the totality of the matter goes further to fortify the sequence of events as recounted by Nelly. We are satisfied and agree with counsel for the State that the appellant was properly convicted of the offence of murder.

24. The next issue is whether the death sentence could be passed against the appellant, a minor then aged under 18 years. Under Section 204 of the Penal Code it states that;“Any person convicted of murder shall be sentenced to death”.

25. It is conceded that the appellant was at the material time a minor, thus he ought to have been tried and sentenced according to the provisions of the Children Act; which defines a child as; any human being below the age of 18 years. The appellant should have been sentenced according to the provisions of Section 191(1) of the Children Act provides that:-“In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways-a.By discharging the offender under Section 35(1) of the Penal Code;b.By discharging the offender on his entering into a recognizance, with or without sureties;c.By making a probation order against the offender under the provisions of the Probation of Offenders Act;d.By committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;e.If the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;f.…………………………”.

26. In Nyeri Criminal Appeal No 118 of 2011- J.K.K. –vs- R [2013] eKLR this Court had the opportunity to consider a correct punishment for a minor offender as follows:-“The dilemma we face in this appeal was the ascertainment of the age of the appellant. Going by the remarks by the Judge, he was about 17 years when he was first arraigned in court in March, 2009, it is now four years later, which means he is now over the age of 18 years, therefore, he is not suitable to be subjected to any of the sentences provided for under the Children Act. The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence.”

27. In Republic –vs- S.A.O. (a Minor) [2004] Eklr, Rawal, J. (as she then was) also applied her mind to the question of the appropriate punishment for a minor offender. In that case, a minor of 13 years had been charged with the offence of murder. By then the offence of murder was not bailable but the learned Judge admitted the subject to a free bond with two sureties having taken cognizance of Section 190(2) and Section 4(2) of the Children Act. The former section prohibits the sentencing of child offenders to death while the latter section provides for the consideration of the best interests of a child in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.

28. In view of the above cited cases and the above mentioned provision of the Children Act, the appellant could not be sentenced to life imprisonment. We however face the same dilemma as this Court did in J. K. K. V R (supra) because the appellant was aged 15 years in February 2009. Although he was not subjected to an age assessment, considering the Judge was satisfied and the prosecution did not object we have no reason to doubt the appellant was aged 15 years. The appellant has already served 5 years since conviction which means he is now aged about 20 years. The best interest of the appellant as a minor offender ought to have been of paramount consideration when passing the sentence. The life of a minor should be preserved, he must also be rehabilitated which in our view includes being brought to bear the consequences of his omission, errors of judgment and disregard of the rule of law. Due to his omissions, an innocent life of a Kenyan was lost. Although the appellant was a minor, he must be brought to bear the consequences of his omission and lack of proper judgment. The appellant has served 5 years serving a life sentence; we do not however know whether that sentence was done as per the provisions of the Children Act or the Penal Code under which he was sentenced.

29. Whatever the case, life imprisonment is not provided for under the Children Act, but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. We think that due to the gravity of the offence, and the current age of the appellant, he cannot be released to the society without being brought to terms with the consequences of his action or omissions by a custodial sentence. It is for this reason that we are inclined to allow the appeal against the life sentence imposed by the trial court and substitute it with imprisonment for a period of 10 years from the date of conviction. We therefore allow the appeal to the extent that the life sentence imposed on the appellant is substituted with ten years imprisonment.

30. To that extent the appeal partially succeeds on sentence but the appeal on conviction is dismissed.

DATED AND DELIVERED AT NAKURU THIS 27TH DAY NOVEMBER, 2014. ALNASHIR VISRAM.....................................JUDGE OF APPEALMARTHA KOOME.................................JUDGE OF APPEALJ. OTIENO- ODEK....................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR