[2017] KEHC 3359 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 8 OF 2017

JAMES NJUE MUGO.............APPELLANT

VERSUS

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

JUDGMENT

The Appellant herein has Appealed to this court against both the conviction and the sentence meted on him by A N. Makau SRM on the 16th June, 2015 wherein he was sentenced to serve (7) years imprisonment.

He was charged with the offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code, the particulars being that, on the 13th day of January, 2014 at Karima village Kiangiru sub location Ngandiri location within Mbeere South District of Embu County unlawfully killed one STANEY KITHAKA MUGO.

Being dissatisfied with the Conviction and the sentence, the Appellant has appealed to this court and has listed 7 grounds of Appeal in his petition dated the 16th day of December, 2015. The said grounds can be collapsed into the following 2 grounds of Appeal.

1. That the learned Magistrate erred in law and infact when he convicted the Appellant without sufficient evidence.

2. The sentence of seven (7) years meted out on the Appellant was too harsh.

This being the first appeal, the court is under duty to re-evaluate the evidence on record and come up with its conclusion.

In support of the prosecution’s case, five witnesses testified.

PW1, who is the father to both the deceased and the Appellant herein, told the court that on the 13/1/2014, he was called by his brother John Kiura who told him that the deceased had stabbed the Appellant on the neck with a knife. He rushed to Ganduri AP post and while there, the Appellant arrived with his wife PW2 and reported what had transpired. The Appellant was taken to Ganduri health center in company of Police officers where he was treated and discharged and on reporting at the AP post he was arrested and put in custody as PW1 was sent to find out the condition of the deceased and on arrival he found he had already died.

It was PW1’s evidence that the body had an injury on the middle of the head and there was blood all over. He rushed back to the police and informed them of the death of the deceased and in the company of police officers they removed the body and took it to Embu Provincial Hospital Mortuary. He told the court that the deceased had a mental problem and he had taken him to Mathari Hospital once but he did not produce any medical documents to that effect.

PW2 conducted a post mortem on the body of the deceased on 23/1/2014 at Embu Provincial Hospital. The body had injuries to the head and sentimental fractures on the scar bone. On opening of the bone, there was intracebebral haematoma blood that was surrounding the brain tissue. He concluded that the deceased died of head injury after he was hit with a blunt object.

PW3 is the wife of the Appellant. On the 13/1/2014 she was at home. She went to the shop and on coming back, she found her house had been broken into and on asking the deceased whether he knew who had broken into her house, the deceased told her to go and report. PW3 reported to her husband (the Appellant) what the deceased had told her. The Appellant entered the house where the deceased was and they started arguing and shortly thereafter, she saw the Appellant walk out of the house while bleeding on the neck., took a piece of wood and hit the deceased on the forehead and he fell down. The Appellant asked her to go to Ganduri to get their father and while they were on the way, the Appellant talked to his mother and as they were on phone, PW3 heard the Appellant tell her mother – in –law that the deceased had stabbed him with a knife and in turn hit him with a piece of wood injuring him.

PW3 and the Appellant went to AP post where they found the father to the Appellant and they informed him what had transpired. He was given a P3 form so that he could be treated. He was arrested the same day. On reaching home, PW3 found the deceased had already died and the body was collected by the police and taken to the mortuary. She identified the jembe stick that the Appellant used to hit the deceased.

PW4 investigated the case. At the material time the suspect had been arrested and was at Siakaga police station. He escorted the Appellant for a mental checkup at Embu Provincial General Hospital where the doctor confirmed the mental status to be okay. He produced the jembe stick and panga as exhibit in this case which he had collected from the Appellant’s house. It was his evidence that the deceased used the panga to fight the Appellant while the Appellant used the jembe stick to hit the deceased on the head. It was his evidence that though the Appellant stated that he sustained injuries and was treated he could not recall seeing any injury on him otherwise he could have taken him to hospital.

PW3 is the police officer who visited the scene together with CIP Kosgei. They found the body of the deceased lying in a pool of blood. She recovered a panga at the scene and a wooden Jembe stick. They saw the body and it had a deep cut wound on its forehead and the head had been smashed. They collected the body and took it to the mortuary at Embu provincial General Hospital. She stated that she did not see the Appellant with an injury and he never complained to her that the deceased had stabbed him.

On being put on his defence, the Appellant told the court that on the material day, she finished working, cleaned his house and went away but on returning he found some household goods had been stolen therefrom. He asked his brother if he was the one who broke into his house but he did not reply but instead, he jumped on him and stabbed him on the left shoulder and went away in fear of more attacks. He went to the police station and reported that he had been stabbed by the deceased and was referred to Ganduri Hospital but he was not treated as there was no doctor to treat him. He went to a chemist where some medicine was applied on him and was told to return the following day for an injection which he did. He was arrested the same day but he told the police that his brother, the deceased, had been killed by a mob because he had previously slaughtered another person.

When the Appeal came up for hearing both the Appellant and the Respondent made oral submissions.

In his submissions, the Appellant stated that he did not kill the Appellant but he was beaten to death by a mob of people. He submitted that his late brother (the deceased) killed a man by name Kiura following which the family of Kiura started threatening the Appellant and the deceased family insisting that they would revenge. The Appellant decided to shift from the area and he went to Siakago where he worked until his brother left jail. After he was released, the deceased continued with his bad behavior and the villagers started looking for him and was forced to run away to a forest where he continued staying and while there the Appellant used to give him food.

He further submitted that on one particular day the deceased found there was no food and attacked the Appellant with a knife. The Appellant screamt for help and ran to the police station where he reported and was taken to hospital and ongoing back home he found the Appellant had been beaten to death.

On the part of the Respondent, it was submitted that sufficient evidence was adduced before the trial court to prove the case beyond reasonable doubt. Counsel for the Respondent referred to the evidence of PW3 who witnessed the appellant hitting the deceased with a jembe stick.

On the sentence, she told the court that the same is not harsh as the maximum sentence provided for by the law, is a life sentence and therefore, the sentence of 7 years is reasonable.

On the Appellant’s state of health, the court was told that no medical evidence was provided to support that ground of Appeal and in any event, the prison has facilities to take care of health problems that the Appellant may have.

She asked the court to dismiss the Appeal.

The court has considered the Appeal and the submissions made by the respective parties. As I had pointed out elsewhere in this Judgment, the grounds of Appeal can be collapsed into two as I had stated earlier.

On whether there is sufficient evidence to sustain the conviction, this court notes that the prosecution relied on the evidence of the sole witness who testified as PW3. This witness is the wife of the Appellant. As per the record of the proceedings, the learned Magistrate sought clarification from the Appellant whether PW3 is his wife and if he was okay if she testified in the case and he stated he did not have a problem with it.

The learned Magistrate noted that a wife is not a competent and compellable witness but where the accused does not object, like in this case, she becomes a competent prosecution witnesses. It is on that basis that he allowed her to testify.

Section 127 of the evidence Act deals with the competence of parities and spouses. It provides as follows:

“In criminal proceedings, every person charged with an offence and the wife or husband of the person charged, shall be competent witness for the defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person;

Provided that:-

(ii) save as provided in sub section (3), the wife or husband of the person charged shall not be called as a witness except upon the application of the person charged.

However, a spouse shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged

a) With the offence of bigamy; or

b) With the offence under the sexual offences Act; or

c) In respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise.

The offence the Appellant herein was charged with does not fall within the exceptions set out under section 127 (3) of the Evidence Act.

Section 127 (ll) is couched in mandating terms and the word used is SHALL.

The Appellant herein did not apply for PW3 to be called as a witness because she testified as a prosecution witness and not as a defence witness. Through the record shows that he had no objection to her testifying as such, the law is very clear that a spouse cannot be called as a witness unless upon an application by the other spouse in a case where either of them is an accused person.

In the face of such an express legal provision, the prosecution ought not to have called her as a witness and the learned Magistrate erred in convicting the Appellant on the basis of the evidence adduced by PW3.

Having taken that view, the court then has to consider whether in the absence of the evidence of PW3, the conviction could still stand. As I had stated earlier, PW3 was the sole witness whose evidence the learned Magistrate relied on to convict the Appellant. In its absence there is no other piece of evidence either direct or circumstantial on which the conviction can stand.

There is no other evidence connecting the Appellant to the offence not even the jembe stick that he is said to have used to hit the deceased as the same was introduced in evidence by PW3.

In view of the aforesaid, I find and hold that the conviction of the Appellant was not safe. I therefore set aside the conviction and the sentence and order that the Appellant be released forthwith unless otherwise lawfully held.

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