[2017] KEHC 3293 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 38 OF 2016

HENRY MUCHAI……………...…………1ST APPELLANT

TITUS MUNENE…………………………2ND APPELLANT

VERSUS

REPUBLIC………………………………....RESPONDENT

JUDGMENT

The three Appellants namely Ceciliah Murangi, Titus Munene and Henry Muchai were on the 11th day of August, 2015 convicted and sentenced to serve seven (7) years in jail for the offence of Grievous harm contrary to section 234 of the Penal Code.

The particulars of the charge are that on the 29th day of June, 2015 at Njukiri Sub- Location within Embu County willfully and unlawfully jointly did Grievous harm to one Beth wambeti Ndwiga.

Being dissatisfied with the Conviction and the sentence, the 2nd and 3rd accused persons, Titus Munene and Henry Muchai appealed to this court in Criminal Appeal nos 39 and 38 both of 2015 respectively. When the Appeals came up for hearing on the 20/7/2017, they were consolidated under Criminal Appeal 38/2016, Henry Muchai being the first Appellant and Titus Munene the 2nd Appellant.

The grounds of Appeal raised by the Appellants are similar and they can be summarized as follows:

1. That the prosecution did not prove the case beyond reasonable doubt.

2. That the learned Magistrate did not consider the defences put forth by the Appellants.

3. That the learned Magistrate violated the provisions of section 124 of the Evidence Act by relying on uncorroborated evidence adduced by PW1.

4. That the Appellants’ rights to a fair trial were infringed as they were not given adequate time to prepare for their defences contrary to Article 50 (c) of the Constitution.

The summary of the prosecution’s case as captured in the evidence of the witnesses was that;

On the 29/6/2015 at 2pm, the husband to the complainant sent her money (ksh 200) to take to his aunt and on her way, she met accused one, Cecilia Murangi and her children who asked her why she was trespassing on her farm. The complainant apologized to her.

On the same day at about 8pm she was attacked by accused 2 and 3. Accused 2 held her from the back, threw her to the ground while accused 3 attacked her. Later, a girl whose name she did not mention arrived with some substance in a cup which the accused persons wanted her to take but she refused.

At the time, the first accused was hiding and the complainant heard her enquiring if she had drunk the substance. Accused 1 arrived with an axe and injured her left eye.

PW2 was the complainant’s girlfriend who on the material night had gone to a nearby shop when a boy informed him that there was fighting at home and that his girlfriend (the complainant) had been beaten by the accused persons. On rushing home he found the complainant lying near the door with injuries to the left eye and she was bleeding. She told him that she had been beaten by the accused persons. He took her to Embu level five hospital where she was admitted. PW2 was later arrested on allegations that he had burnt a house belonging to the accused persons and he was taken to Embu police station.

PW3 is the doctor who filled the P3 form for the complainant. By then, she had been treated of cut wounds across the eye which had been stitched. She was taken to theatre since the eye ball was severely injured. She complained of pain to the left side of the face, the lower jaw and the teeth although the pain had subsided. He filled the P3 form 3 months and 3 days after the incident. In his opinion, the injury to the eye was by a sharp object. The eye ball was removed and she lost her left eye. He assessed the degree of injury as grievous harm and produced the P3 form as an exhibit in the case.

PW4 who is an eye specialist was working at Embu Provincial Hospital at the material time. She attended to the complainant who had an injury to the left eye and the left side of the face. She confirmed that the complainant lost eye sight to the left side. The eye is completely blind.

PW5 was the investigating officer. It was her evidence that on 29/6/2015, PW2 reported a case of assault in which his girlfriend (PW1) was assaulted. She visited the complainant at Embu Provisional Hospital and recorded her statement. She issued her with a P3 form and later arrested the three accused persons and charged them with the offence of causing Grievous harm.

After the close of prosecution’s case, all the three accused persons were put on their defence. DW1, Ceciliah Murangi’s defence was that in the year 2013 he was employed away from home until December 2014 when she returned home. In the month of February, 2015, she was arrested and charged with the offence of Grievous Harm. She did not know the complainant before she was arrested but came to know her later.

DW2 (Henry Muchai) told the court that on the material day he was at home with friends and they were preparing for form four examination as he was in form four. They held discussions between 4 pm and 5 pm. He was later arrested and charged with the offence herein. He stated that he saw the complainant for the first time in court.

DW3, Philip Amukale testified as a witness for the three accused persons. It was his evidence that on 29/6/2014, he left the church in the company of the 2nd and 3rd accused persons and between 2pm – 10. 30 pm they were together revising for exams after which the accused persons went to sleep as he prepared to go to bed. He did not know the complainant before. On the 15/2/2015, the two Appellants were arrested by police and he followed them to the police station.

The Appeal proceeded by way of written submissions which I have carefully considered together with the grounds of Appeal and the evidence on record.

The Appellants have contended that the prosecution did not prove the case beyond any reasonable doubt in that the court relied on the evidence of relatives and that they were convicted on the evidence of a single witness. That the evidence of PW1 has multiple contradictions and that they were not properly identified at the scene as the people who assaulted the complainant.

The evidence on record is that at around 2 pm on the 29/6/2015, the complainant had met the first accused who asked her why she had trespassed on her land. The complainant apologized to her but on the same day in the evening at around 8 pm when she was making supper, the first and 2nd accused persons arrived in her house and attacked her. It was her evidence that it was the first accused who cut her. She had a lantern which enabled her to see and recognize her assailants whom she had known for three weeks before the incident and on the same day at 2pm she had met the first accused who enquired why she had trespassed on her land.

The evidence in this case is that of recognition and not identification as the complainant knew the Appellants before.

The Appellants have relied on section 124 of the Evidence Act which requires corroboration of the evidence of a single witness and have argued that the evidence of the complainant was not corroborated by an independent witness. In my view that section relates to the evidence of children and not to that of adults and therefore that ground of Appeal cannot stand.

The Appellants have also contended that their defences were not considered. In his Judgment, the learned Magistrate considered the defences by the Appellants and dismissed the same as he noted that they were known to the complainant before the alleged incident.

I have looked at the defence mounted by the 2nd Appellant. It consists of a general denial in that he stated that he never committed the offence. He did not even attempt to explain where he was on the material night yet DW4, the witness who gave evidence in support of the defence case told the court that they were revising together on that night. If indeed they were together as alleged by DW4, I do not see any reason why the 2nd Appellant failed to state that in his defence.

As for the 1st Appellant, his defence was that on the material day, he was at home with his friends where they were revising for exams. Though he stated that they used to have discussions between 4 pm – 5 pm, he did not tell the court whether they held discussions on this particular day, and if they did, what time the discussions ended. His evidence contradicted that of his witness DW4 who stated that they revised between 2pm – 10. 30 pm when they went to sleep. I wish to note that time was of essence in this case because the complainant told the court that she was attacked at 8 pm on the material day.

Both Appellants have not explained where they were at 8 pm on the 29/11/2015. Their defences did not displace the evidence adduced by the complainant and the learned Magistrate was right in dismissing their defences.

As to the contention that their rights were violated for not being given adequate time to prepare their defences, the record shows that the plea was taken on 16/2/2015 and the trial did not commence until the 1/4/2015. On the 17/3/2015 when the case came up for hearing, the Appellants applied for adjournment as they were not ready to proceed and thereafter they did not apply for any other adjournment. It is not therefore true that they were not given adequate time to prepare for their defences. The only time they applied for an adjournment, the learned Magistrate was kind enough to grant the same.

The two Appellants and the first accused were jointly charged with the offence of causing grievous harm to the complainant. The complainant identified the first accused as the person who hit her with an axe. She was in the company of the Appellants herein, who also participated in attacking her while forcing her to take some substance which was in a cup which she refused to take. The common intention is seen in the way they acted and conducted themselves. Section 21 of the Penal Code states as follows;

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose on offence is committed of such a nature that commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”

See the case of David Opedhi Oima versus Republic (2014) eKLR in which the case of Rex Versus Mokaeri Kyeyune & 4 others 8 EACAwas cited where it was held

“…… To constitute a common intention to prosecute an unlawful purpose… it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so called thief. Their common intention may be inferred from their presence, their action and omission of any of them to dissociate himself from the assault.”

And on the contention that the learned Magistrate relied on the evidence of single witness, the court of Appeal for East Africa in thecase of Roria Versus Republic (1967) EA 573 had this to say

“A conviction resting entirely on identity invariably causes a degree of uneasiness…..

That danger is of course greater when the evidence against an accused person is identification by one witness and although no one would suggest that a conviction should never be upheld, it is the duty of this court to satisfy itself that, in all the circumstances, it is safe to act on such identification.

In the premises, I find that the prosecution did prove its case against the Appellants to the required standard and that the conviction was safe and the sentence merited. I find the Appeal to be without merit and I dismiss the same.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent