[2021] KEHC 9342 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

HCCRA NO. 12 OF 2019

FREDRICK OGOYO OBIERO...................................................................1ST APPELLANT

MICHAEL MWARE OBIERO...................................................................2ND APPELLANT

JOSEPH OBIERO MWARE........................................................................3RD APPELLANT

CAROLINE AUMA OKANYO....................................................................4TH APPELLANT

VITALIS OUMA OGIYA..............................................................................5TH APPELLANT

VERSUS

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

[Being an appeal against the conviction of the Principal Magistrate’s Court at Bondo

(Hon. M. Obiero PM) dated the 14th March 2019 in Bondo CMCCRC No. 966 of 2018]

JUDGMENT

The appeal before me was transferred to Kisumu from the High Court at Siaya, by an Order dated 2nd June 2020.

1. The Appellants were convicted for the offences of ARSONContrary to Section 332of the Penal Code, and MALICIOUS DAMAGE TO PROPERTYContrary to Section 339 (1)of the Penal Code.

2. In respect to the offence of Arson, each of the Appellants was fined Kshs 100,000/= or in default, 3 YEARSImprisonment.

3. In respect to the offence Malicious Damage to Property, each of the Appellants was fined Kshs 50,000/= or in default, 3 YEARSImprisonment.

4. In the appeal, the Appellants raised 8 Grounds of Appeal.

5. In my understanding of the said grounds of appeal, grounds 1, 2, 3 and 4 assert that there was either insufficient evidence or no evidence at all, to sustain the convictions.

6. By Ground 5, the Appellants asserted that the trial court failed to follow the laid down rules for taking the evidence of Minors.

7. By Ground 6, the Appellants asserted that the trial Court failed to take into account, their respective Defences.

8. The Appellants view, as stated in Ground 7, was that the evidence of the 2 minors, who were allegedly the eye-witnesses to the incident did not displace the Appellants’ alibi.

9. By Ground 8 of the appeal, it was asserted that there were such serious Discrepancies, Inconsistencies and Contradictions that a conviction cannot have been properly founded upon.

10. Finally, the Appellants asserted that the trial court had failed to give any reasons that could justify the sentences.

11. Being a first appellate court, I am obliged to re-evaluate all the evidence tendered. When drawing up my conclusions from the re-evaluation, I must bear in mind the fact that I did not have the benefit of observing the witnesses when they were testifying.

12. The Charge Sheet cited the following 7 accused persons;

1. Fredrick Ogoyo Obiero;

2. Michael Mware Obiero;

3. Stephen Otieno Oucho;

4. Joseph Obiero Mware;

5. Silvanus Ogiya Ongoro

6. Caroline Auma Okanyo; and

7. Vitalis Ouma Ogiya.

13. After a full trial, the learned trial magistrate acquitted the 5th Accused, Silvanus Ogiya Ongoro.

14. Although six of the accused persons were convicted, the 3rd Accused, STEPHEN OTIENO OUCHO, did not lodge an appeal before this court.

15. The particulars of the Charge are that on 6th October 2018, at 2000 hours, at [PARTICULARS WITHHELD] VILLAGE, BAR KOWINO Sub-location, BONDO Sub-County, the 7 accused persons JOINTLY, WILLFULLYand UNLAWFULLYset fires to the dwelling house valued at Kshs 300,000/=, which was the property of POO.

16. In respect to Count II, it was asserted that the 7 accused persons had, JOINTLY, WILLFULLYand UNLAWFULLY DAMAGED

“(See the attached list for burnt items)”

17. The said property was said to belong to POO

18. It therefore follows that the Complainant in both counts was POO.

19. PW1, VITALIS OWITI OKUNA testified that he was the Complainant in this case.

20. On the material day, PW1was in Bondo together with his wife, WAO, (who testified as PW2). Both PW1and PW2 said that upon their arrival at home, they found that their house was on fire.

21. When PW1and PW2inquired from their 2 children, FO (PW4)and MO (PW3), about what had transpired, they were told that some people had burnt down the house.

22. According to PW1, he returned home on the material night, and found his house burning. However, his 2 children were not at the house. PW1traced the children to his mother’s house.

23. The children told PW1that the house was burnt down by 8 people. PW1gave the following names, as those of the people who burnt down his house;

(i) Obiero;

(ii) Moi;

(iii) Kennedy;

(iv) Brian;

(v) Oganyo’s wife;

(vi) Otis; and

(vii) Boss Okeya.

24. According to PW1, Kennedy and Brian were not arrested.

25. He said that those who were arrested, and whom he identified in court were;

(1) Moi Obiero

(2) Michael Obiero

(3) Otis Abonyo

(4) Joseph Obiero

(5) Oganyo’s wife;

(6) Boss Okeya; and

(7) Vitalis Ogiya.

26. PW2, WAO, testified that her husband’s name is P. She was with P at Bondo, on the evening of 6th October 2018.

27. Upon their arrival at home, later that evening, they found that their house was on fire.

28. PW2said that PW3and PW4informed her that the 4th Appellant, Caroline, was heard screaming that she would kill PW1because PW1had taken Caroline’s husband to the police, for having illicit brew.

29. PW2testified that those who were responsible for the arson were;

(1) Joseph Obiero;

(2) Moi Obiero

(3) Kennedy Obiero;

(4) Brian Obiero;

(5) Michael Otieno;

(6) Otis Abonyo; and

(7) Okiya

30. When she was testifying, PW2said that those who were in court were Joseph Obiero, Moi Obiero, Michael Obiero, Otis Abonyo, Caroline Oganyo and Boss Okiya.

31. That implies that Kennedy Obiero and Brian Obiero were not in Court. Secondly, the Michael who was in court is Obiero, whilst the Michael who had been involved was Otieno.

32. PW3, MOO, was 15 years old when he testified.

33. He testified that on the material day he saw the following people, when they entered the Complainant’s house;

(i) Joseph Obiero;

(ii) Kennedy Moi;

(iii) Michael;

(iv) Brian;

(v) Otis;

(vi) Lebo;

(vii) Boss;

(viii) The unnamed lady, who had beenscreaming that PW3’s father hadhad her husband arrested forselling chang’aa.

34. According to PW3, it was Kennedy and Moi who started the fire.

35. PW3testified that his parents (PW1and PW2)did not return home on that day.

36. PW4, FOO, was 12 years old when he testified.

37. He said that on the material day, he and PW3were inside their parents’ house, studying.

38. He saw 8 people, who entered the house. The said people were;

(1) Moi;

(2) Michael;

(3) Brian;

(4) Kennedy;

(5) Boss;

(6) Otis;

(7) Oganyo’s wife; and

(8) Obiero.

39. According to PW4, their parents returned home, and found both he and PW3at the house of the children’s grandmother.

40. When PW4was testifying, he identified those who were in court as;

(1) Moi;

(2) Michael;

(3) Lumba;

(4) Obiero;

(4) Okiya;

(5) Oganyo’s wife; and

(6) Boss.

41. PW5, PC CORNELIUS CHERUIYOT was the Investigating Officer.

42. He testified that POO had reported at the Bondo Police Station, about a case of arson that took place on 6th October 2018.

43. PW5 visited the scene of crime, together with his colleagues.

44. The Complainant led the police to the home of the suspects, where the following 4 suspects were arrested, on 7th October 2018;

(1) Joseph Obiero;

(2) Vitalis Ouma;

(3) Caroline Auma; and

(4) Kennedy

45. On 15th October 2018, the following 2 more persons were arrested;

(i) Stephen Oucho, and

(ii) Fredrick Ogoyo

46. Finally, on 16th October 2018, Michael Obiero was arrested.

47. It was the testimony of PW5that the persons who were arrested were present in court when PW5was testifying.

48. He also explained that the reason for the arrests was that the Complainant’s children had seen all the accused persons in the house at the time of the incident.

49. During cross-examination, PW5made it clear that the police did not conduct any Identification Parades. His reason was that the accused persons were known to the witnesses, prior to the incident.

50. After PW5testified, the prosecution closed its case. The trial court thereafter placed all the accused persons to their defences.

51. DW1, FREDRICK OGOYO OBIERO, testified that on the material day he was at his home. He heard noises and hooting from a motorcycle.

52. DW1heard people calling the name of one P, saying that they would either kill him or burn his house.

53. However, DW1denied having been involved in the offence.

54. DW2, MICHAEL MWARE OBIERO, is the 2nd Appellant. He also testified that on the material night, there were boda boda riders who were threatening to kill Peter or to burn his house.

55. Although DW2knew P, he did not go either to rescue him or to harm him.

56. DW3, STEPHEN OTIENO OUCHO, gave evidence similar to that of DW1and DW2.

57. DW4, JOSEPH OBIERO OMWARE, is the 3rd Appellant. He denied having committed the offences that he was charged for.

58. He testified that on the material evening, he did not hear any noises. He said that he has difficulty in hearing.

59. DW5, SYLVANUS OKIYA OWUOR, testified that he knew the Complainant, PO, as that was his neighbour. However, he denied committing the offences.

60. DW6, CAO, was at her home, which is at Rateng Village. On the material day, she was not aware of what was happening at P’s house.

61. DW6said that she not only knew P, but also that P was her brother-in-law.

62. Although DW6’s husband, DENNIS OGANYO, had been arrested by the police, for being in possession of chang’aa, DW6denied that the said arrest had been orchestrated by Peter.

63. DW7, VITALIS OUMA OKIYA is the 5th Appellant. He is a resident of BarKowino.

64. He testified that on the material day, he was in Bondo Town, at about 8pm. He denied going to the Complainant’s home.

65. DW8, AMBROSE ABONYO, is a resident of BarKowino. He testified that he was the Village Elder of Udimba Village.

66. On the material day, he was attracted by loud noises, and on approaching the source of the noise, he saw a house burning.

67. However, as the house was located in Migwena, DW8did not reach the house as it was outside his jurisdiction.

68. During re-examination, DW8said that he saw many people at Peter’s house, but he did not know who was responsible for burning down the house.

69. On the one hand, DW8said that he did not reach where the house was burning, whilst, on the other hand he said that he went to the scene.

70. After DW8testified, the accused persons closed their respective cases.

Identity of Complainant

71. The charge sheet gives his name as POO, yet the person who testified as the Complainant is VITALIS OWITI OKUNA.

72. In the case of SILAS KIPCHUMBA KERICH Vs REPUBLIC, CRIMINAL APPEAL NO. 53 OF 2010, the Charge Sheet indicated that the Complainant was ELLY KIRUI KIPKOECH, whilst the “Complainant”who testified was KIWI HENRY KIPKOECH.

73. The appellate court held that the difference in the names was not merely of a typographical nature. The court said;

“In those circumstances, it cannot besaid that there was simply an error.

But even assuming that there had beena genuine error, it was the obligationof the prosecution to either seek anappropriate amendment to the chargesheet, or to otherwise tender anexplanation that would enable thecourt to be persuaded that the two setsof names refer to the same person.”

74. In this case, all the witnesses appeared to know the Complainant as P. Since the charge sheet cited the Complainant’s name as Peter and the Appellants, as well as the other prosecution witnesses knew the Complainant as Peter, it is baffling why the Complainant gave his name as VITALIS.

Identity of the Scene of Crime

75. The charge sheet gives the particulars of the Scene of Crime as being [PARTICULARS WITHHELD] VILLAGE, BARKOWINO SUB-LOCATION, BONDO SUB-COUNTY.

76. As the Appellants pointed out, both PW1and PW2testified that they hail from MIGWENA.

77. However, it is also evident, that during cross-examination PW2said that she lived in [Particulars Withheld] Village.

78. PW3and PW4testified that they lived in [Particulars Withheld] Village.

79. Significantly, DW1, DW2, DW3, DW4and DW5all said that they live in [Particulars Withheld] Village. All those Defence Witnesses said that they were neighbours of the Complainant Peter.

80. DW6said that she lived in RATENGVillage; whilst DW7 and DW8said that they live in BARKOWINO.

81. Neither DW7nor DW8said that they lived at a Village called BARKOWINO. As [Particulars Withheld] Village is within Barkowino Sub-Location, there is no inconsistency in the evidence tendered by the witnesses.

82. Indeed, when DW8testified that he lived in BarKowino, whilst he was a Village Elder of [Particulars Withheld] Village, that appears to confirm that the Odimba Village is within BarKowino Sub-Location.

83. I find no discrepancies between the evidence tendered and the charge sheet.

Identification

84. Both PW3and PW4said that they heard a lady screaming, whilst she was outside their house.

85. Both PW3and PW4were inside the house. Contrary to the Appellants’ submissions, the 2 witnesses were not asleep; they were studying.

86. If the identification of the 4th Appellant was founded upon the recognition of her voice, the same would have been of doubtful integrity. I so find because the prosecution did not meet the following requirements, which are essential to sustain the efficacy of voice recognition;

“……. care would obviously be necessaryto ensure;

(a) that it was the accused person’svoice;

(b) that the witness was familiarwith it, and recognized it and;

(c) that the conditions obtaining atthe time it was made were suchthat there was no mistake intestifying to that which was saidand who said it.”

- per Court of Appeal in SAFARI YAABAYA Vs REPULIC, CRIMINAL APPEALNO. 27 OF 2016(Malindi).

87. In this case, the 2 witnesses (PW3and PW4)saw all the 8 people when they entered into the house where the witnesses were studying.

88. There was lighting inside the house, provided by the solar lamps.

89. As the witnesses were able to give the names of the 8 persons who they saw clearly, and who even talked to them, I find that the learned trial magistrate was right to have held that this was a case of recognition, from facial appearances.

Voire Dire Examination

90. PW3was 15 years old when he testified, whilst PW4was 12 years old. In effect, both witnesses were minors.

91. Both of them gave sworn testimonies and were cross-examined by the accused persons.

92. The Appellants submitted that the trial court erred by having the 2 witnesses sworn before the court had satisfied itself that the minors appreciated the necessity of telling the truth.

93. In the case of REAGAN MOKAYA Vs REPUBLIC, CRIMINAL APPEAL NO. 49 OF 2006 (Mombasa), the Court held as follows;

“On the basis of this preliminaryinquiry, the learned magistrate allowedthe child to give unsworn testimony. I amsatisfied that the trial magistrate appliedthe correct principle in receiving theunsworn testimony. The proviso to Section124 of the Evidence Act is categorical thatthe court must state in the proceedingsthat it is satisfied that the childappreciated the necessity of telling thetruth. This appears to be missing in theentire proceedings. This is a fatal mistake.”

94. The main distinction between that case and the case before me is that the minors in that case gave unsworn evidence, whilst the 2 minors herein gave sworn evidence.

95. If a witness gives unsworn evidence when the court had not verified the appreciation by the said witness about the necessity of telling the truth, the court would be unable to ascertain the efficacy of the evidence tendered.

96. On the other hand, when a witness gives sworn evidence and is subjected to cross-examination, the veracity of his evidence would be ascertainable through the said process of cross-examination.

97. Nonetheless, the Appellants believe that the trial court was obliged to record both the questions and the answers during the voire dire examination, so that it could be verified whether or not the court had a proper basis for concluding that the minors appreciated the necessity of stating the truth.

98. There is no express statutory requirement that the trial court must record both the questions asked and the answers given.

99. But in the case of JOHNSON MUIRURI Vs REPUBLIC [1983] KLR 445, at page 449 the Court of Appeal said, inter alia;

“It is important to set out the questionsand answers when deciding whether achild of tender years understands thenature of an oath so that the appellatecourt is able to decide whether thisimportant matter was rightly decided,and not be forced to make assumptions.”

100. The court went on to underscore the importance of undertaking appropriate steps before the trial court could determine whether or not a minor may give sworn evidence.

101. It was emphasized that there was need for;

“……. an inquiry as to the understandingof a child witness, of the nature andsolemnity of an oath …….. and the addedresponsibility to tell the truth, which isinvolved in an oath, over and above theduty which is an ordinary duty of normalsocial conduct.

There were therefore two aspectswhen considering whether a child shouldproperly be sworn: first that the childhad sufficient appreciation of theparticular nature of the case, and, seconda realization that taking the oath didinvolve more than the ordinary duty oftelling the truth in ordinary day-to-daylife.”

102. In my understanding, the learned trial magistrate conducted an inquiry into the minors’ understanding about the necessity to tell the truth.

103. However, there does not appear to have been any inquiry about the understanding, by the minors, of the realization that the taking of an oath involved more than the ordinary duty of telling the truth.

Inconsistencies

104. I have already held that the two minors had “identified”the Appellants through facial appearances. That therefore implies that their respective testimonies ought to find convergence on the identities of the persons they had recognized.

105. PW1and PW2both said that one of the persons in court is MOI. Both PW3and PW4testified that it was MOIwho poured petrol outside the Complainant’s house, and then lit the fire.

106. PW3and PW4said that MOIwas present in court.

107. First, none of the Accused persons is named MOI. Therefore, it is completely unknown who among the 7 Accused persons is called MOI.

108. PW5, who was the Investigating Officer, did not testify that he arrested anybody by the name MOI. On the other hand, PW1testified that MOI OBIEROwas one of the persons who were arrested.

109. The charge sheet did not indicate that any of the accused persons was also known as MOI. If any of the accused was also known as MOI, it should have been so indicated in the charge sheet.

110. And it is not only in respect of MOIthat the prosecution failed to give clarity about which of the accused was also called by another name.

111. Although PW1testified that among the 7 accused persons, he saw OTIS ABONYOand BOSS OKIYA, the charge sheet did not have those persons.

112. On his part, PW3saw LEBOand BRIAN amongst the persons who burnt down the house. Although PW4also mentioned BRIAN, he did not mention LEBO.

113. As there was sufficient lighting inside the house at the material time, and because the intruders did not hide their appearances, it should have been expected that they would have recognized the same 8 intruders.

114. I find that the inconsistencies in the identities of some of the persons allegedly recognized by PW3and PW4casts doubt on the accuracy of the evidence on recognition.

Common Intention

115. If PW3and PW4had correctly identified MOIas the person who poured petrol around the house and who also lit the fire, the prosecution ought to have not only provided evidence to prove that the Appellants were at the scene of crime, but also to prove the role, if any, played by the said Appellants.

116. The charge sheet specified that the accused persons had acted

“jointly, wilfully and unlawfully”,

when they set to the Complainant’s dwelling house.

117. In the circumstances, the prosecution had to discharge the onus of proving that the accused persons acted jointly, wilfully and unlawfully.

118. The evidence on record suggests that MOIpoured petrol on the house and he also lit the fire.

119. The evidence further suggests that the 4th Appellant screamed, saying that her husband had been arrested at the instigation of the Complainant.

120. The trial court held thus;

“From the evidence on record, it is clearthat there was actually no grudge betweenthe accused persons and the complainant.”

121. Notwithstanding the absence of any grudge between the accused and the complainant, the trial court concluded that;

“……. it is clear that the people who wentto the complainant’s house had a commonintention, and they were part of whathappened in the complainant’s house.”

122. On my part, I find that the prosecution proved that the Complainant’s house burnt down.

123. It would appear that it is MOIwho burnt down the house.

124. However, when it was not demonstrated that the Appellants performed any acts that can be said to have supported the unlawful action of MOI, and because there was no grudge between the Appellants and the Complainant, I find that the prosecution failed to prove any common intention between MOIand the Appellants, or between the Appellants themselves.

125. Insofar as the conviction was founded upon a perceived Common Intention, I find that the same was not founded on a solid foundation.

126. In the case of FRANCISCA NGINA Vs REPUBLIC, CRIMINAL APPEAL NO. 264 OF 2007 the Court of Appeal adopted the following definition of Common Intention;

“Common Intention generally impliesa premeditated plan, but this does notrule out the possibility of a commonintention developing in the course ofevents though it might not have beenproven to start with.”

127. In this case, there is no evidence that the Appellants and MOIhad any premeditated plan to burn down the Complainant’s house.

128. Secondly, as there was no evidence to prove what action or steps any of the Appellants took, there is no proof that a common intention developed in the course of events.

129. If the Appellants were shown to have aided MOIin burning down the Complainant’s house, that would have constituted evidence of their common intention.

130. However, in this case the evidence was to the effect that the person who poured petrol on the house, and who also struck the match which lit the fire that consumed the house and the contents thereof, was MOI. There is no evidence that the Appellants aided MOIin any manner.

131. I find that the trial court erred when it held that the Appellants;

“….. had a common intention and theywere part of what happened in thecomplainant’s house.”

132. In the result, I find that the convictions were unsafe. Therefore, the same are set aside.

Sentence

133. Pursuant to Section 332of the Penal Code, a person who is convicted for arson is guilty of a felony, and is liable to imprisonment for life.

134. And pursuant to Section 339of the Penal Code, a person who is convicted for a Malicious Destruction to Property is liable to imprisonment for 5 years.

135. I find that the sentences imposed upon the Appellants were not only lawful, but also appear relatively lenient. If I had upheld the convictions, I would definitely not have varied the sentences.

DATED, SIGNED and DELIVERED at KISUMU This 26th day of January 2021.

FRED A. OCHIENG

JUDGE