[2013] KEHC 1507 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 3 OF 2010

JAMLECK MWANIKI NJURURI............................................APPELLANT

VERSUS

REPUBLIC ......................................................................PROSECUTOR

From original conviction and sentence in Criminal Case No. 1742 of 2008 at the Chief Magistrate’s Court at Embu by Hon. A.A. INGUTIA - SRM on 26/1/2010

J U D G M E N T

JAMLECK MWANIKI NJURURIthe Appellant herein was charged with the offence of Assault causing actual bodily harm contrary to section 251 of the Penal Code.

The particulars as stated in the charge sheet were as follows;

JAMLICK MWANIKI NJURURI: On the 22nd day of September 2008 at Mbuvori sub-location in Embu District within the Eastern Province, willfully and unlawfully assaulted Boniface Ndwiga thereby occasioning him actual bodily harm.

The Appellant denied the charge and the matter proceeded to full hearing. He was convicted and fined shs.15,000/= in default one (1) year imprisonment. The Appellant was dissatisfied with the Judgment and filed this appeal citing the following grounds;

The learned Principal Magistrate erred in law and facts in convicting the Appellant.

The learned Principal Magistrate convicted the Appellant against the weight of the evidence adduced.

The learned Principal Magistrate relied on contradictory evidence on convicting the Appellant.

The learned Principal Magistrate erred in law and fact holding that the Appellant was guilty.

When this appeal came for hearing Mr. Momanyi for the Appellant addressed the Court on the grounds of appeal. Mr. Wanyonyi the learned State Counsel conceded the appeal on two grounds viz;

The case proceeded on a defective charge sheet.

The investigating officer and arresting officer did not testify. It was therefore not clear how and for what reason the Appellant was arrested.

As a 1st appeal Court I have the duty to re-evaluate the evidence and come to my own conclusion while remembering that I did not see nor hear the witnesses. In the case ofMWANGI – REPUBLIC [2004]2 KLR 28 the Court of Appeal stated thus;

An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate Court’s own decision on the evidence.

The first appellate Court must itself weigh the conflicting evidence and draw its own conclusions.

It is not the function of the first appellate Court merely to scrutinize the evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court had the advantage of hearing and seeing the witnesses.

I have considered the submissions by Mr. Momanyi and Mr. Wanyonyi together with the grounds of appeal. I have equally considered the evidence on record. The charge sheet on the face of it has a problem. It indicates that the offence was committed on 22/9/2008. It further shows that the Appellant was arrested on 12/9/2008 and arraigned in Court on 14/9/2008. The evidence on record shows that the offence occurred on 22/9/2008 and the Appellant was arraigned in Court on 14/10/2008 when plea was taken. The P3 form (EXB1) confirms that the report to the police was made on 23/9/2008. The complainant was examined by the Doctor on 5/10/2008. It was not until 14/10/2008 that the Appellant was arraigned in Court.

On the face of it the Appellant was arrested even before the offence was committed. These errors about the charge sheet would have been rectified by the Prosecution or by the Court under section 214 Criminal Procedure Code. It was not done. At the same time the investigation officer and arresting officer ought to have testified to explain why the Appellant was arrested and arraigned in Court on the date they did. The two officers were vital witnesses who ought to have testified, in particular the investigating officer. In the case of JUMA NGODIA –V- REPUBLIC [1982 – 1988]1 KAR 454 the Court of Appeal held thus;

“The Prosecutor has in general a discretion whether to call or not to call someone as a witness. If he does not call a vital witness without a satisfactory explanation he runs the risk of the Court presuming that his evidence which could be and is not produced, would if produced have been unfavourable to the Prosecution”.

In this case the Prosecution had on 16/6/2009 applied for an adjournment to call the investigating officer who though bonded had not appeared. And on 23/7/2009 when the matter next came for hearing he voluntarily closed the case saying his remaining witness the arresting officer was not present. The only inference to be drawn from this is that the two witnesses not called would have given evidence not beneficial to the Prosecution.

The two issues raised above were fatal to the Prosecution case. I do agree with State and conceding the appeal was the best decision to make.

The appeal is allowed and conviction quashed. The sentence is set aside. Any fine paid to be refunded.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7TH DAY OF NOVEMBER 2013.

H.I. ONG'UDI

J U D G E

In the presence of;

M/s Ingahizu – State

Appellant

Njue- C/c