[2022] KEHC 1597 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL APPEAL NO. E007 OF 2020

JANE NYAGUTHII AGNES..............................................................................APPELLANT

VERSUS

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

(An appeal from conviction and sentence in the Chief Magistrate’s Court

at Thika,Hon. J.M. Nang’ea, CM,dated 25th November, 2020

in Criminal Case No. 234 of 2015)

JUDGMENT

1. JANE NYAGUTHII AGNES,was convicted by the Chief Magistrate’s Court Thika in Criminal Case No. 234 of 2015 of the offence of kidnaping with intent to confine contrary to section 259 of the Penal Code. She was sentenced on being convicted to 3 years imprisonment.

2. The appellant has filed this appeal against her conviction and sentence.

3. This Court is the first appellate court. This Court therefore will be guided by the principle set out in the case KIILU & ANOTHER VS. REPUBLIC (2005) IKLR 174 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 the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and 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 has had the advantage of hearing and seeing the witnesses.”

4. The prosecution’s case against the appellant was that on 19th January, 2015 kidnapped MMN she jointly with three others with intent to cause MMN (a minor) to be secretly and wrongly confined.

5. MMN testified that on 19th January, 2015 at 5. 30 pm while he was near his home, coming from school he saw a motor vehicle but did not note its registration but noted it was grey in colour. A man, appellant’s co-accused during the trial pushed MMN into that car into the back seat of the car where two other men were seated. He was driven to Thika, then to Muthaiga but later his eyes were blind folded. He could however tell the vehicle was driven into a bush and when it stopped MMN found himself in a room of house. One of the appellant’s co-accused was with him in that room MMN was later fed with Ugali and he slept.

6. BNM, the minor’s father reported MMN as missing at Juja police station. The same day at 12. 00 am, the father received a call whereby the caller demanded a ransom of Kshs.3milion. The caller said if the ransom was not paid MMN would be killed. He reported that demand to the police and a police operation was mounted.

7. The following day, the father would be called from time to time and directed to go to different destinations to take the ransom.

8. A man later called and offered to surrender MMNwithout payment of ransom. This man eventually took MMN to his parent’s home where upon he was arrested.

9. Benson Mwenda Miriti testified that he lent the appellant his motor vehicle registration NO. KBV 159L on 18th January, 2015 which the appellant returned to him on 20th January, 2015. He stated later the police informed him that the said motor vehicle was the one used to kidnap MMN.

10. Appellant denied the offence and offered a defence of alibi. She stated on the material date she was on duty at Aga Khan Hospital and that the vehicle she hired was used to make deliveries to her client.

ANALYSIS

11. The criminal standard of proof is on beyond any reasonable doubt. That standard was discussed in the case MILLER VS. MINISTER OF PENSION (1942) A.C. as follows:-

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted forceful possibilities to deflect the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

12. In dissenting judgment in a Canadian case P.L. VS. COLELGE OF PHYSICIAN AND SURGEON OF PROVINCE OF ALBERTA 1999 ABCA 126 the court discussed the function of standard of proof and stated:-

“The functionofastandard of proofis to instruct the fact finder concerning the degreeofconfidence society thinks he should haveinthe correctnessofhis factual conclusions for a particular typeofadjudication, and to allocate the riskoferror between the litigants and indicate the relative importance attached to the ultimate decision. Thus, the givenstandard of proofboth calibrates and allocatesthe riskoferror to be borne by the respective partie.”

13. In that judgment the court stated that the criminal standard of proof is justified on the basis of the potential loss of individual liberty on conviction.

14. The appellant by her grounds of appeal faulted the trial court for convicting her when prosecution failed to prove the case against her on the required criminal standard of proof.

15. Having examined the entire trial court evidence, I cannot but wholly concur with those submissions by the appellant. There is hardly a scintilla of evidence implicating the appellant to the offence.

16. MMN did not mention having seen the appellant at the time the offence.

17. The appellant, in view of the above finding does succeed in her appeal against conviction and sentence. Accordingly, the trial court conviction is quashed and the sentence his hereby set aside. I order Jane Nyaguthii Agnes to be set free unless otherwise lawfully held.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

CORAM:

COURT ASSISTANT: MOURICE

APPELLANT: JANE NYAGUTHII AGNES - PRESENT

FOR APPELLANT: - MR. BOSIRE

FOR RESPONDENT: - MR. KASYOKA

COURT

JUDGMENT DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE