[2023] KEHC 25289 (KLR)

Githongo v Republic (Criminal Appeal 36 of 2022) [2023] KEHC 25289 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25289 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal 36 of 2022

J Wakiaga, J

November 15, 2023

Between

Peter Irungu Githongo

Appellant

and

Republic

Respondent

(Being an appeal from the judgement of Hon. Peter M. Kiama delivered on 1st August 2022 in the Senior Principal Magistrate’s Court at Kangema in Criminal case No E286 of 2021)

Judgment

1. The appellant was charged with the offence of assault causing actual bodily harm Contrary to the Provisions of section 251 of the Penal Code the particulars of which were that on the 23rd day of April 2021 at Gakira Sub Location in Muguru Location of Kangema Sub County within Murang’a County unlawfully assaulted James Maina Githongo thereby causing him actual bodily harm.

2. He pleaded not guilty and was tried convicted and sentenced to three years’ probation.

3. Being dissatisfied with the said conviction and sentence, he filed this appeal and raised the following Grounds of Appeal;a.That the trial Magistrate erred in laws and fact in failing to find that the offence was not proved beyond reasonable doubt.b.That the learned Magistrate erred in law and fact in failing to appreciate that there were sustained family dispute leading to numerous cases.c.That the learned Magistrate erred in law and fact in finding that the appellant had a case to answer.

Submissions 4. When the Appeal came up for hearing before me, the appellant who was unrepresented filed hand-written submissions which he relied upon, while the state through Ms Nzuki opposed the Appeal by way of oral submissions.

5. On behalf of the appellant, it was submitted that when the matter came up for hearing, he informed the Court that there was another case involving the same parties which was pending before another Court where the complainant had assaulted the appellant and cried for help before rushing to the Police Station to report and that in that case the Court found the complainant to be the aggressor and dismissed his case.

6. It was contended that it was the Complainant in the cause appealed against who had attacked the appellant when the same complained that he had placed dry blue gum tree leaves on his fence and that the appellant was issued with P3 form and that when he reported to the police he met the complainant having made a report thereat and therefore when he went back to the police with his P3 form, he was locked up in the cell before being charged in Court.

7. He submitted that in Criminal Case No 34 of 2020, the complainant was convicted and that on the date when the plea was to be taken in the case appealed against he once again attacked the appellant with the intention of killing him.

8. Ms Nzuki submitted that the prosecution proved its case against the appellant who was positively identified by the complainant who was his brother and that the Court dismissed his defence since had no P3 form and treatment notes to support his claim. It was contended that the sentence provided for was five years while the appellant was sentenced to three years’ probation which sentence was very lenient.

Proceedings 9. This being a first Appeal, the Court is required to re-evaluate the proceedings before the trial Court and to come to its own conclusion thereon while giving an allowance to the fact that it did not have the advantage of seeing and hearing witnesses.

10. PW1 James Maina Githongo, the complainant testified that he was going to work at 8. 30 am when the appellant who was his brother, came and attacked him with a slasher on the right shoulder and that he held the appellant until one Pius came and took away the panga from him and the slasher from the appellant and that he bit the appellants fingers to let him free. He confirmed that he had a similar case against the appellant.

11. In cross examination he confirmed that he had placed the grass and the leaves on the fence but on his side of the fence and that he had to defend himself.

12. PW2 Tomline Pius Mwangi stated that he saw he saw the appellant throw folder on the side of his brother and that he then saw the appellant throw a slasher at the complainant before they started to struggle and fell down, he picked the slasher and threw it away before the complainant overpowered the appellant. In cross examination he stated that the appellant and the complainant had an argument and that when he got to the scene, he found the appellant on the ground with the complainant holding him by the shoulder.

13. PW3 Dona Maithima a Clinical Officer produced the P3 form and confirmed that the complainant had bruise on the right shoulder and cut wound on the dorsal palm which injury he classified as harm. In cross examination he stated that he could not confirm whether the complainant fabricated the injuries.

14. PW4 PC Alphonce Maskhoha received the complainant at the Police Station and issued him with P3 form. In cross examination, he confirmed that the appellant also made a report on 23rd April 2021 and was issued with a P3 form and that the appellant did not avail any evidence to him to show that he was assaulted.

15. When put on his defence the appellant DW1 Peter Irungu Githongo testified that he found the common path closed which he opened several times. That the last time he opened it, the complainant came to the scene and stabbed him with a knife which was aimed at his neck and that when he swung his left hand, he cut him on the three fingers. PW2 came to the scene and held him by the hand, in the meantime the complainant rushed to the police and reported, so by the time he got to the station, he found that the same had already made a report.

16. In convicting the appellant, the Court had this to say;“the complainant also attacked the accused with a knife and the two struggled. I found that the accused did not avail any evidence by way of treatment notes to confirm he sought treatment for injuries allegedly inflicted on him by the complainant.The accused further failed to avail any evidence such as OB particulars to confirm he reported at a police station that he was assaulted by the complainant.On the other hand, the complainant did avail a P3 form and treatment notes confirming he was injured. The complainant testimony was corroborated by that of the Clinical Officer Dona Maithima who procured the P3. As such the Court was convinced that the complainant was injured by the use of a slasher over a boundary dispute “.

Analysis and Determination 17. From the proceedings and submissions herein, the only issue for determination in this Appeal is whether the prosecution case was proved beyond any reasonable doubt and whether the appellants defence was considered by the Court.

18. It is clear from the evidence tendered that there was long standing dispute between the appellant and the complainant as confirmed by the trial Court over a boundary dispute and that on the material day there was a fight between the two brothers. The issue which the trial Court failed to determine is as to who was the aggressor? And further whether assault was proved?

19. In convicting the appellant, it is clear from the record of the proceeding that the trial Court having found as a fact that the complainant also attacked the appellant with a knife passed the burden of proving that he sought treatment on the appellant and further find that the same did not consider the evidence of the Investigating Officer under cross examination. The Court further did not consider the existing family feuds while analysing the 0appellant defence and as such find and hold that the prosecution case was not proved beyond reasonable doubt.

20. From the evidence tendered, it is clear that the offence proved was affray and not assault and therefore find and hold that the appellant conviction was not free from error. I will therefore allow the appeal, set aside the appellant’s conviction and quash the sentence herein.

21. The appellant shall be set free forthwith unless otherwise lawfully held. And it is ordered.

DATED, SIGNED AND DELIVERED AT MURANGA THIS 15th DAY OF NOVEMBER 2023J. WAKIAGAJUDGEIn the presence of :Ms Gakumu for StateAppellant – PresentJackline – Court Assistant