[2017] KEHC 68 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

HCCRA NO 252 OF 2013

ERICK MUTUA KYALO.........................................APPELLANT

VERSUS

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

[Being an appeal from original conviction and sentence in Machakos Chief Magistrate’s Court Criminal Case No. 566 of 2011 on 20th September 2013 by Hon. P. N. Gesora, SPM)

JUDGMENT

[1] The appellant was as 2nd accused together with 9 others jointly charged with various offences arising from an incident where a mob of family members and members of the public descended on the homes of the complainants on diverse dated between 4th February and 16th March 2011, burning and destroying the houses and property thereon on allegations of their having bewitched some of their family members. The offences were set out in seven counts, respectively of (i) arson contrary to section 332 (a) of the Penal Code; (ii) malicious damage to property contrary to section 339 (1) of the Penal Code; (iii) store breaking and stealing contrary to section 306 (a) of the Penal Code; (iv) creating a disturbance and causing a breach of the Peace contrary to section 95(1) (b) of the Penal Code; (v) creating a disturbance and causing a breach of the Peace contrary to section 95(1) (b) of the Penal Code; (vi) house breaking and stealing contrary, respectively, to section 304 (1) and 279 (b) of the Penal Code; and (vii) malicious damage to property contrary to section 339(1) of the Penal Code.

[2] Upon hearing evidence in the full hearing of case, the trial court found the charges proved against the accused as follows:

“I have carefully considered the evidence on record and exhibits produced. There is no doubt that the complainant’s properties were damaged and stolen in a series of attacks metted out on different dates as set out in the charges herein and corroborated by the testimonies herein. It is my considered view that the attacks were carried out systematically and were preplanned.

The attacks herein were a culmination of long standing grudges among members of the Makau Nguuti family in which the complainant and accuseds save for Accused 10 belong to. There was brewing hatred amongst themselves and the 9 accused herein and others had declared that PW1 practised witchcraft. PW7 the area Assistant Chief was clear on this and the accuseds herein concur on this. His testimony was not challenged and I accept it.

The act of inviting an exorcist goes to prove that they were convinced that there was a witch amongst them and after declaring that is was PW1 practising it, the trigger effect was the damage and theft that was witnessed. The attacks were carried out in broad day light and for people known to one another does not raise the issue of identity. For those that were carried out in the night the identity of the attackers can be linked to those carried out in daylight.

PW7 was categorical that accused herein were in the group of the attackers and they cannot therefore escape liability. They may have been more than those arraigned in Court but individually they were involved and for the purposes of criminal liability they cannot run away from it.

It is possible that someone caused the death of the two young girls daughters to one Mwaniki (deceased) but most certainly there are ways and means of seeking redress which are legal instead of attacking PW1 and his family. Two wrongs do not make a right and I hold that the accuseds acted lawlessly and with impunity and is not acceptable.

The old men cleared the young men to carry out the actual attacks and this boils to their common intention and they are culpable. They also humiliated the complainants by tying them with ropes, threatened them and created a disturbance.

In the upshot I find for the prosecution, accused committed the offences herein and for that they are at fault and are guilty and are convicted in count 1 and Accused 1, 2 and 10 are further convicted as charged in counts 2 and 3. Accused 1 and 2 are further convicted in counts 4, 5, 6and 7 as charged.”

[3] For his role in the matter the appellant as 2nd accused was sentenced to imprisonment for 1 year in count 1, count 2, count 3, each limb of count 6 (house breaking and stealing) and count 7 (malicious damage to property); and 3 months each in counts 3 and 4 relating to creating a disturbance. The trial court order that the sentences would be served consecutively.

Appeal

[4] By his amended grounds of appeal, the appellant challenged on the sentence and sought to mitigate as follows:

1. “That I am a first offender hence I pray for utmost leniency

2. That I am deeply remorseful, repent and regret my act

3. That I have learnt the art of patience tolerance and respect of people’s property

4. That I am fully rehabilitated reformed through the prison correctional integrated services

5. That I promise to carry on the newly founded virtues of the society

6. That I am the sole breadwinner of my family

7. I pray for the court to issue an order for the said sentence to run concurrently

8. That may the court issue orders reducing the sentence of the time served or substitute with a non-custodial one or community service order or any other sentence it deems fit.”

[5] Attached to these grounds of appeal were submissions filed by the appellant in which he primarily expressed remorse and urged the court to direct that the sentences for his offences should run concurrently as the offences were related. The accused regretted his action the subject of the offences before the court as having been driven by group pressure on a family issue, and cited his status as a sole breadwinner of his family as a ground for exercising leniency on him and to substitute a non-custodial for the custodial sentences.

The Response

[6] By its Submissions dated 26th February 2016 and filed on 2nd March, 2016, the Respondent through Prosecution Counsel Cliff Machogu urged the Court to dismiss the appeal for lack of merit. It was submitted that the grounds of appeal were merely grounds in mitigation which ought to have been presented to the trial court and further that the said grounds were not sufficient to warrant interference by the appellate court of the exercise of discretion by the trial court in sentencing citing Wanjema v. R (1971) EA 493. Counsel further submitted that the trial court had been lenient in its sentencing since counts I, II, III, VI and VII each carried a sentence of more than 5 years whereas the appellant was only sentenced to serve one year.

Determination

[7] There is no appeal against conviction before the Court in this appeal and the Court does not have to determine the legality of the conviction and the court will only determine the appeal against the sentences imposed on the appellant who was the 2nd accused in the trial..

[8] The Criminal Procedure Code provides for consecutive and concurrent sentences as follows:

“14. Sentences in cases of conviction of several offences at one trial

(1) Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.

(3) Except in cases to which section 7(1) applies, nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences—

(a) of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or

(b) of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose.

(4) For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

[Act No. 17 of 1967, s. 46, Act No. 25 of 1971, Sch., Act No. 4 of 1974, Sch.]”

[9] It is trite that an appellate court may only interfere with the trial court’s discretion on sentencing in the circumstances set out in Wanjema v. R. (1971) EA 493 in holding that:

“The appellate Court should not interfere with the discretion of which the trial court has exercised as to sentence unless it is evident it overlooked some material factors, acted on a wrong principle or sentence is manifestly excessive in the circumstances of the case.”

[10] The principle applicable to sentencing in offences committed as part of the same criminal transaction is that the sentences on those offences should run concurrently. See Ng’ang’a v. R 1981) KLR 530 (Trevelyan, J. & Sachdeva, Ag.J.) and Akweny v. R Nairobi High Court Cri. Appeal No. 293 of 1982. In Odero v. R, (1984) KLR 621, the Court (Bratt and Mbaya, JJ.) explained the principle as follows:

“In cases where a person has been charged with and convicted of two or more counts involving the same transaction, the practice is to direct that the sentences should run concurrently: see R v Fulabhai Jethabhai & Another (1946) 13 EACA 179. We think that in the instant case the three counts for which the appellant was convicted were a series of offences founded on the same facts and committed in the course of the same transaction. That is why the three counts were joined in one charge as is envisaged by section 135(1) of the Criminal Procedure Code (cap 75). The phrase “same transaction” was considered by the former Court of Appeal in Rex v Saidi Nsabuga s/o Juma and another (1941) 8 EACA 81 and explained again by the same court in Nathani v R (1965 EA 777). The court said that the proper construction of the phrase “same transaction” is that:-

“if a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose or by the relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.”

In the instant case the series of acts were the rumour-mongering which the appellant indulged in within the proximity of eleven days from the first act of December 7, 1982 to the last one on December 19, 1982. There was continuity of action and purpose, for what the appellant did was merely to repeat publication of the very rumour he spread on the first occasion”

[11] The offences committed by the accused in the present case were related and so connected by proximity of time between 4th February and 15th March 2011 and by the continuity of purpose of getting rid and destroying the persons and property of people perceived to be bewitching their family, as to be part of the same criminal transaction. It is the only reason that the prosecutors correctly charged the offences in the same charge sheet in accordance with section 135 (1) of the Criminal Procedure Code providing that –

“135. Joinder of counts in a charge or information

(1) Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.”

[12] The trial court properly appreciated that the offences were part of a series in the same transaction when it ruled as follows:

“The attacks herein were a culmination of long standing grudges among members of the Makau Nguuti family in which the complainant and accuseds save for Accused 10 belong to. There was brewing hatred amongst themselves and the 9 accused herein and others had declared that PW1 practised witchcraft.”

[13] In directing that the sentences on the accused persons be served consecutively, the trial court failed to apply the correct principle of sentencing in offences which are committed as part of the same transaction, and thereby fell into error. The trial Court may have been influenced by its understandable aversion towards the heinous acts of the appellants. But the answer to such concern is in imposing an appropriate sentence as permitted under the penalty clauses of the offences. As pointed out by the Prosecution in its submissions before this court, most of the counts – arson, store-breaking and stealing, house-breaking and stealing and malicious damage to property – all attracted penalties of over five years imprisonment. Indeed, the offences of store-breaking/house breaking and stealing carry the penalty of imprisonment for, respectively, seven and fourteen years on each limb of breaking and stealing, and arson is punishable by imprisonment for life.

[14] The Court did not, therefore, have to resort to a consecutive clause to ensure an elongated imprisonment term. And the presiding officer of the Court as a Senior Principal Magistrate did not suffer any jurisdictional incompetence by way of the penalty that he could impose for the sentences. And even if this were the case, the matter should be referred to a court competent to impose the enhanced sentences, as held in Ng’ang’a v. R. supra, as follows:

“Concurrent sentences should have been awarded for this one criminal transaction. It is true that the appellant has a bad record but that is beside the point. The case should have been taken before a magistrate of a higher status. In Katungo Mbuki v Republic [1962] EA 682 at pages 683 and 684 this court said:

“... if the offence is one in respect of which the prosecution considers the court has insufficient powers of punishment then it is his duty to take steps to bring the offender or have him brought before a court which has adequate powers of punishment.”

But, of course, the magistrate should, in view of the appellant’s antecedents have committed him for sentence under Section 221 of the Criminal Procedure Code.”

[15] The learned magistrate was simply wrong in his sentencing direction that the multiple sentences for the offences which committed as part of one criminal transaction be served consecutively.

[16] In these circumstances, the appellate Court is under the principle of Wanjema v. R. supra, entitled to interfere with the discretion of the trial court in sentencing.

[17] The events the subject of this case are worryingly reminiscent of many incidents of witch-hunting among several communities of Kenya, which culminate invariably in loss of lives and property and general anarchy in the societies involved. Two lessons must be extracted from this case: firstly, that whatever justification one may have in suspecting one of practicing witchcraft, one should report the matter to the authorities, and taking the law into own hands and attempting to get rid of the witchcraft practitioner or destroying his property and that of his relatives is criminal and it will be punished as such. Moreover, accusing someone of witchcraft is criminal offence under section 6 of the Witchcraft Act cap. 67 Laws of Kenya, which provides as follows:

“6. Charging Persons with witchcraft

Any person who accuses or threatens to accuse any person with being a witch or with practicing witchcraft shall be guilty of an offence and liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding five years:

Provided that this section shall not apply to any person who makes an accusation to a District Commissioner, a police officer, a chief or any other person in authority.”

[18] Secondly, the local administration officers such as the Assistant Chief in this case (PW7) commit an offence when by conduct direct or indirect permits, promotes, encourages or facilitates the practice of witchcraft, as follows:

“8. Chief Permitting the Practice of witchcraft

Any chief who directly or indirectly permits, promotes, encourages or facilitates the practice of witchcraft or the doing of any act contrary to the provisions of this Act, or who knowing of the practice or pretended practice of witchcraft by any person does not forthwith report it to a District Commissioner, shall be guilty of an offence and liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding three years.”

The Assistant Chief knew of the alleged witchcraft allegations against PW1 and even participated in getting an exorcist and oathing to prove PW1’s innocence, and he could have taken preventive and preemptive measures under the Witchcraft Act and the subsequent acts the subject of these criminal proceedings could have been avoided.

[19] Witchcraft must be discouraged as a repugnant practice undermining development of a nation, but methods of combating it and eradicating suspected practitioners must faithfully be within the four corners of the law, not vindictive and vengeful self-help and primitive witch-hunting and burning.

Orders

[20] Accordingly, for the reasons set out above, the Court pursuant to section 354 (3) (b) of the Criminal Procedure Code alters the sentences imposed on the appellant by the trial court to extent that the sentences shall run concurrently from the date they were imposed on 20th September 2013.

[21] As the period of one year of the longest sentence imposed under the various offences of which the appellant was convicted is already past and the appellant has therefore served in full the sentences running concurrently as directed by this Court on appeal, the Court makes a further order that the appellant be released from custody forthwith unless he is otherwise lawfully held.

EDWARD M. MURIITHI

JUDGE

DATED AND DELIVERED THIS 7TH DAY OF DECEMBER 2017.

KEMEI J.

JUDGE

Appearances: -

Appellant in Person

Mr. Machogu for the Respondent