[2001] KEHC 251 (KLR)
The court found that the prosecution failed to prove beyond reasonable doubt that the appellant unlawfully assaulted the complainant. The complainant did not immediately identify the appellant as her attacker to any of the persons she interacted with after the incident, including her neighbor, the Assistant Chief,...
Source-derived case information.
- Citation
- [2001] KEHC 251 (KLR)
- Parties
- Appellant: George Kinyanjui Nganga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 605 of 1998
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Common Assault, Grievous Harm, Burden of Proof, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kinyanjui Nganga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the appellant unlawfully assaulted the complainant.
- 2 Whether the conviction for common assault under Section 250 of the Penal Code was safe given the evidence adduced.
- 3 Whether the trial court properly applied Section 179(2) of the Criminal Procedure Code in convicting the appellant of a lesser offence.
Ratio Decidendi
The court found that the prosecution failed to prove beyond reasonable doubt that the appellant unlawfully assaulted the complainant. The complainant did not immediately identify the appellant as her attacker to any of the persons she interacted with after the incident, including her neighbor, the Assistant Chief, her husband, or the police. None of these individuals were called as witnesses. There was also no medical evidence produced to corroborate the complainant's account of injury. The court held that these deficiencies rendered the conviction unsafe, and the trial magistrate's reliance on the complainant's delayed identification and uncorroborated testimony was misplaced....
Court Disposition
appeal_allowed
Orders
- The conviction of the appellant is quashed.
- The sentence (fine of Shs.6000) is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL APPEAL NO.605 OF 1998 (FROM ORIGINAL CONVICTION AND SENTENCE IN CASE NO.1125 OF 1997 OF THE SENIOR RESIDENT MAGISTRATE’S COURT AT THIKA)
GEORGE KINYANJUI NGANGA ……………………. APPELLANT
VERSUS
REPUBLIC ……………………………………………….. RESPONDENT
JUDGEMENT
George Kinyanjui Nganga (the appellant) has appealed against his conviction on 12th March, 1998 by the Senior Resident Magistrate, Thika, for the offence of Common assault contrary to Section 250 of the Penal Code, which he was not charged with but which the trial magistrate, pursuant to the provisions of Section 179(2) of the Criminal Procedure Code, thought had been proved by the prosecution. The appellant had been charged with Grievous Harm Contrary to Section 234 of the Penal Code in that on the 17th December, 1996 at Igegania Village, Thika, he unlawfully did grievous harm to Cecilia Nduta Kabaya (PW 1).
It is provided in Section 179(2) of the Criminal Procedure Code that, when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. As Mr. Mwaniki, advocate acting for the appellant, submitted, the prosecution is still required to prove on the required standard of beyond reasonable doubt, facts which reduce the offence charged to minor offence.
The onus lay on the prosecution to prove on the required standard an essential ingredient of the offence of common assault contrary to Section 250 of the Penal Code, namely: that the complainant was assaulted unlawfully. It is Mr. Mwaniki’s submission that this was not proved at all.
I have reviewed the complainant’s evidence and I note the following: the complainant arrived at Igegania Shopping Centre from Nairobi on 17th December,1996 at 5 p.m. She met with Mrs. Mugwe who was arranging for a wedding and the two ladies entered into a bar to drink beer as they talked. The complainant drunk tusker beer upto 9. 30 p.m. and then left for her home, one kilometre away. She said she had a torch and there was moonlight. Meaning she could see her way through.
Upon arrival at her gate she said she was shot with a gun on her left arm, which was fractured by the appellant whom she recognised as her nephew. She bled profusely and screamed. She said that the appellant started running away but she ran after him until he entered into a waiting car and was driving away.
The complainant then testified that she went for assistance at a neighbour’s home. Mr. Kamau, owner of that home received her, the wound was dressed and the fractured arm was tied with a lesso but she declined to be taken to Hospital. Her testimony was that she did not tell Mr. Kamau the names of the person who had shot her. Mr. Kamau was also not called to give evidence.
Next morning the complainant said she sent for the Assistant Chief, to whom she made this report of attack. She however, did not also give him the names of the person who had shot her. The said Assistant Chief was also not called to give evidence in the trial court.
The complainant was taken to Gatundu Hospital, from where she was referred to Kenyatta National Hospital. Her husband facilitated her admission into Kenyatta National Hospital where the fractured arm was XRayed and put in plaster. Again, the complainant did not tell her husband the names of her attacker and he also was not called to testify.
After her discharge from Hospital the complainant recorded a police statement but did not again name her attacker. She recorded a further statement three months later. It was then that she named the appellant as the person who had shot her. When asked why she failed to name the appellant all through, she said that she knew the father of the appellant’s co-accused as a dangerous criminal whom she feared. The trial magistrate accepted her explanation.
IP Ngotho (PW 2) of the CID Thika received a report of this shooting the next day (18th December 1996). He visited the scene but did not find any empty cartridges.
No medical evidence was also adduced by the Prosecution. Taking in to account all the aforesaid matters, I am in total agreement with Mr. Mwaniki that the conviction of the appellant was unsafe and I hereby quash it. I set aside the sentence (fine of Shs.6000). I order that this money (Shs.6000) if paid by the appellant be refunded to him forthwith. It is so ordered.
Dated and delivered this 5th July, 2001.
A.G.A. ETYANG’
JUDGE