[2017] KEHC 355 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL APPEAL NO.95 OF 2016

GEORGE KAREITHI..............................APPELLANT

VERSUS

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

(From original conviction and sentence in Criminal Case No.36 2014 of the Principal Magistrate’s Court at Maua)

JUDGEMENT

The Appellant was charged with the offence of man slaughter contrary to section 202 as read with section 205 of the Penal Code. The particulars of the offence are that the appellant on the 26th of November 2013 at KK Market in Igembe North District within Meru County unlawfully killed Bernard Kalunge M’Mwambia. The trial court convicted the appellant and sentenced him to serve 20 years in prison.

In his petition of appeal the appellant states that he pleaded not guilty to the charge. There are no other ground of appeal stated in the petition. During the hearing of the appeal the appellant informed the Court that he was sentenced to 20 years imprisonment. The only thing he wanted the Court to do is to reduce the sentence since it has no remission. He stated that he is seeking the court’s leniency. Mr. Namiti, Prosecution counsel, opposed the appeal. Counsel submitted that under section 205 of the Penal Code the sentence provided is up to life imprisonment. The 20 years imprisonment imposed by the trial court is lenient.

This is a first appeal and the Court has to evaluate the evidence afresh and make its own conclusion. PW1 Frankline Gikundi testified that on the 26th of November 2013 at about 4. 00pm he was in a canteen with other people while chewing miraa. The appellant and the deceased passed by while talking. After about 50 metres they started struggling. He saw the accused running away while the deceased fell down. He heard a lady screaming saying that someone had been stabbed. They rushed to the scene and saw the deceased bleeding from the left side of the chest. The lady told them that the deceased had been stabbed with a needle used to sew shoes. The deceased was taken to Maua Methodist hospital but passed on at about 7. 30pm. PW2 Lawii Kirema M’thilari was with PW1 on the 26th November 2013 at about 4. 00pm chewing miraa. He saw the appellant and the deceased fighting with kicks and fists about 50 metres away. He went there and saw the deceased had fallen down. The appellant ran away. The deceased was bleeding from the left side of the chest. He was taken to Maua Methodist hospital but passed on.

PW3 Lucy Kainda is a farmer. On the 26th of November 2013 she was from her farm at about 4. 00pm when she saw the appellant and the deceased fighting outside her gate. The appellant knocked the deceased down. The appellant told the deceased that he had a needle and would kill the deceased. He pulled a needle from his back trouser pocket and stabbed the deceased on the left side of the chest. The needle is the one used for sewing shoes. The appellant ran away. The deceased walked for a short distance and collapsed. She screamed and people went to the scene. The deceased was taken to hospital but passed on.

PW4 Peter Mwithalia Muchomba was at his home sleeping. The deceased was his cousin. He was notified about the death. Together with other people they went to look for the appellant. They were later informed that the appellant had been arrested. The appellant was taken to Laare Police station. PW5 Dr. Njeru Charles Muchangi is a medical doctor. He performed a postmortem on the deceased on the 6th of December 2013 at Maua Methodist hospital mortuary. The deceased over aged about 30 years old. Apart from bruises on the chest and a right swollen eye, the deceased had a penetrating injury on the left side of the chest measuring about 4mm in diameter and another penetrating wound on the left side of the abdomen. There was internal bleeding inside the chest. He concluded that the cause of death was cardiopulmonary arrest due to the chest injury that was caused by a sharp object.

PW6 PC Moses Kusimba was stationed at the Laare Police Station on the 27th of November 2013 at about 2. 30am the appellant was taken to the station by Cpl. James Genesio of KK AP camp. The case was reported at the Police station. He investigated the case and went to the scene. There was no blood at the scene as the deceased did not bleed too much. He was informed that the appellant differed with the deceased of a Ksh.30 debt. The appellant was demanding that amount from the deceased but the deceased informed him that he had paid the debt since he had bought tea in the morning for the appellant. He drew a sketch plan of the scene. He caused the appellant to be charged with the offence.

In his unsworn evidence the appellant denied committing the offence. He testified that on the 26th November 2013 at about 12. 30pm he was with the deceased. They had an order to supply firewood. They supplied the firewood and were paid Ksh.600. He paid the deceased who was his friend Ksh.50. 00. At about 2. 30pm the deceased went to his place and informed him that he had bought some trees at Kilalo area and wanted the appellant to purchase the trees from him. The deceased was like a broker. He bought the trees at Ksh.7,000/= and paid the deceased his commission of Ksh.300/=. They parted ways at around 2. 50pm. He went about his duties. At about 8. 00pm he went to guard a miraa farm belonging to his neighbour and stayed there until 1. 00am. He then went to KK market where he met people playing cards. Police went there at about 1. 30a.m and they ran away. He was arrested at about 3. 00am and taken to KK AP camp. He was later charged with the offence.

The main issue for determination is whether the prosecution proved its case beyond reasonable doubt. The evidence shows that the incident took place at about 4. 00pm. PW1 and PW2 saw the appellant and the deceased fighting. Shortly thereafter they saw the deceased falling down. It is the evidence of PW3 that she saw the deceased and the appellant fighting outside her gate. The deceased fell down and the appellant removed a needle from his back pocket and stabbed the deceased. The Medical evidence indicate that the deceased succumbed to the injuries he sustained. The appellant in his defence did not touch on the incident. He testified that he was with the deceased upto 2. 50pm when they parted ways. PW2 and PW3 knew the appellant. They saw him that day fighting with the deceased. The deceased was arrested on the same day after the incident. It is clear to me that it is the appellant who killed the deceased. It is not a case of mistaken identity as the appellant was known in the area. The incident took place during the day. I do find that the conviction is proper.

The appellant contends that the sentence is excessive. Section 205 of the Penal Code provides for a sentence of upto life imprisonment for the offence of man slaughter. The evidence points to the fact that the deceased and the appellant were friends. The prosecution witnesses saw them together. The investigating officer PW6 testified that the deceased had informed the appellant that he could not pay his debt since he had bought tea for him. According to the appellant the deceased had done some timber business with him earlier that day. It is not clear what made the two to fight. The contention by the investigating officer that the two fought over Ksh.30/= debt is not supported by any independent evidence. It is clear that the two were walking together when they disagreed. The Prosecution properly preferred the charge of man slaughter against the appellant. Although PW3 testified that the appellant removed a needle and stabbed the deceased, it is established that the two started fighting after quarrelling.

The trial Court sentenced the appellant to serve 20 years imprisonment. The deceased was aged about 30 years. I believe the appellant is also within that age bracket. I find the sentence to be excessive. I do hereby set aside the sentence and replace it with seven years imprisonment from the date of conviction.

In the end, the appeal on conviction is disallowed. The twenty years imprisonment sentence is set aside and replaced with seven years imprisonment. The appellant shall serve seven years imprisonment from the date of conviction.

DATED AND SIGNED AT MARSABIT THIS …. DAY OF SEPTEMBER, 2017

SAID CHITEMBWE

JUDGE

DATED, SIGNED AND DELIVERED AT MERU THIS 5th DAY OF October, 2017

A. MABEYA

JUDGE