[2017] KEHC 4035 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL APPEAL NO.72 OF 2016

(Appeal originating from the sentence by Hon. V.O CHIANDA SRM in MUKURWEINI CR. CASE NO.55 of 2016)

JOHN MAINA MIGWI............................................APPELLANT

=VERSUS=

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

J U D G M E NT

J U D G M E N T

The appellant was charged with the offence of gravious harm contrary to section 234 of the Penal Code.particularas are that on the 20th day of February 2016 at around 20. 00hours at kirerema sublocation within mukurweini sub county in Nyeri county accused did gravious harm to Samuel wanjohi Kabuga. The appellant was convicted and sentenced to serve 15 years imprisonment.

The appellant lodged this appeal against both the conviction and sentence. He raised the following grounds:-

1. That the trial magistrate in finding that the complainant was not the aggressor

2. That the trial magistrate erred in convicting on evidence of pw6 yet it was controverted by pw4

3. That he was wrongly convicted for failing to avail occurrence book in his defence.

In his written submissions the appellant stated the evidence clearly show that the confrontation between him and the complainant took place at his place. He said that his witness DW2 testified that the complainant accosted the appellant and grabbed him by the neck and that his evidence was corroborated by evidence of Dw3. He said that the evidence that the confrontation took place at his home was supported by the evidence of pw4. He submitted that the complainant was the aggressor and the appellant was only acting in self defence whereby he managed to rebuff the attack by the complainant who was accompanied by his farmhand Rangwe and Charles Gichimu; he added that after being overcome, the 2 people accompanying the complainant went to call complainant’s wife. He admitted that the act of gravious harm occurred but it was occasioned by the complainant who accosted him violently at his home leaving him with no option but to put up a defence. The appellant submitted that pw6’s evidence was not sufficient as it was controverted by the evidence of pw4. He submitted that pw4 arrived at the scene immediately after the incident while pw6 went to the scene the following day. He said pw4 in his police statement said complainant assaulted the appellant at his gate. He urged court to adopt pw4s evidence and reject the evidence of pw6. he submitted that the trial court dismissed his defence that the complainant was the aggressor because he did not avail occurrence book and medical documents. He urged court to look at OB/02/21/02/16 dated 15/6/2016 from AP post which he deposited in court. He said he took the items collected from his gate to the same AP post but were taken from there unprocedurally by Pc Isitoshe and pw1s wife. He said the trial magistrate misconstrued PW4’s evidence.

Lastly he blamed the prosecutor for putting undue pressure on him during trial by alleging to the court that he was issuing threats and for urging court to impose deterrent sentence. In conclusion he regretted that the complainant suffered as a result of the confrontation which he says could have been avoided if the complainant never attacked him with his farmhand and Charles. He said that the action was not deliberated and that he also suffered in the attack. He prayed for sentence to be set aside and a non-custodial sentence imposed.

The appeal was opposed. The state supported both conviction and sentence. Ms. Mwaniki submitted that though the sentence may be enhanced to life, the state is not asking for it to be enhanced because the appellant is a first offender. She submitted that it is not true that the complainant was the aggressor as the evidence on record clearly show he was the victim. She submitted that the complainant testified how the incident occurred outside his gate and not the appellant’s gate, she said that was corroborated by pw2, pw4 and pw6. She said pw2 who is pw1’s wife responded to screams and found the complainant lying outside their gate. She said pw6 who was the investigating officer visited the scene and confirmed the scene to be at complainant’s gate. She said that the complainant sustained serious injuries and was admitted in hospital for 6 days while the appellant never sustained any injuries. She submitted that appellant failed to submit any medical documents even on being asked. She submitted that pw6 conducted conclusive investigations and that he is a reliable and credible witness. On the issue of O.B she submitted that the defendant’s defence show that he was issued with O.B.She submitted that trial was conducted in a free and fair manner and that the appellant was given a chance to fully participate. She concluded that the prosecution proved their case beyond reasonable doubt. She said pw1 was able to identify the assailant having been his neighbor and there being moonlight; that pw2 too arrived at the scene and was able to see the appellant leaving the scene. She urged court to uphold both conviction and sentence.

This being the first appellate court. I am expected to subject the entire evidence adduced before the trial court to fresh evaluation and analysis .This I do while bearing in mind the fact that I never had the opportunity to hear the witnesses and observe their demeanour.The principles that apply in the first appellate court are set out in the case of OKENO VS REPUBLIC [1972] EA 32 where it was stated as follows:-

“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. Republic [1957] EA 570. ) 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; 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 has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424. )”

The complainant testified that the appellant had on 6/2/2016 sent a boy to tell him that the (appellant) had knocked their house gate. He said on 20/2/2016 as he was leaving his house he found the appellant standing next to his car. He enquired what the appellant wanted. The appellant asked the complainant whether he was aware that he (complainant) had knocked (appellant’s) gate. Shortly after responding to the complainant the appellant struck the complainant with a sharp object on the back. While down he was hit on the shoulder, waist, leg and face. He lost consciousness. He reported at mukurweini police station after regaining consciousness. Complainant said that his jaw was fractured and he lost six teeth. He produced treatment record and receipt for kshs 234,000 in court as exhibits. In cross examination the complainant said there was moonlight though he was not able to know the blunt object the appellant used. He suspected it to be a piece of wood. He said previously he had no grudge with the appellant and had never talked to him but he knew him. He said his brother is the area Assistant chief.pw2 the complainant’s wife said she found her husband on the ground bleeding profusely. She said he uttered the name “Maina” and lost consciousness. She screamed and their farmhand went to the scene. She said the complainant lost a mobile phone, driving licence and shoes. she learnt from the chief that they were recovered from the appellant. In cross examination pw2 said that the appellant is a neighbor. She said she saw appellant run into his home.

Pw4 testified that she responded to pw2’s screams and found the complainant and pw2 outside the appellant’s gate. She said the complainant was bleeding from the mouth and could not speak. She said when the appellant recovered his speech he said the appellant assaulted him.pw5 also responded to pw2’s screams and found the complainant lying down having been injured.pw6 the investigating officer testified the he visited the scene and found that the incident took place outside the complainant’s gate. He denied having collected exhibits from anywhere.

Pw3 confirmed injuries sustained by the complainant. He classified the degree of injury as gravious harm and produced treatment record in court.

In his defence the appellant adduced sworn evidence. He stated that on 20th February 2016 as he left home he saw one Theuri standing outside complainant’s pick up. He said the said Theuri called the complainant who emerged with a rungu and they started attacking him. The appellant said that he was with his father and that he tried to hit him with a pang but his mother screamed. He said the complainant struck him on the head with a rungu. On cross examination the appellant said that he had O.B extract which does not show report of assault on him. He also said he did not have medical documents showing that he was assaulted. He said that the following morning he recovered the complainant’s driving licence and personal documents.Dw2 the appellant’s mother testified that the incident occurred at her home. She said while leaving the kitchen she saw the complainant, Rangwe and Charles Gichimu. She said complainant grabbed the appellant. In cross examination Dw2 said she did not see the complainant assault the appellant.Dw3 the appellant’s father said that the appellant together with many other people went to his home but he does not know about any fight.

The appellant has not denied confrontation with the complainant but he said it is the complainant who accosted him. He further submitted that he injured the complainant while defending himself. In his defence the complainant said he was hit on the head with a rungu by the complainant in the presence of his father and mother. Both his father and mother never talked of accused being injured by the complainant; in fact in cross examination as observed above, the appellants mother said she didn’t see the complainant assault the appellant and his further added that he does not know about any fight. The appellant confirmed that the O.B extract did not show report of assault neither did he avail any treatment documents. If indeed he was accosted as he wants this court to believe why didn’t the people he was with see? That aside, why no treatment if he was hit with a rungu? The appellant’s allegation of complainant being the aggressor and him defending himself is unsupported by any evidence. On the other hand the complainant’s wife found the appellant running from the scene and his name mentioned by the appellant before he lost consciousness. If the appellant was defending himself as he alleges I doubt if the complainant would have sustained such serious injuries. I find that the prosecution proved beyond reasonable doubt that the appellant did gravious harm to the complaint. The conviction was safe and I do uphold it.

In so far as sentence is concerned I consider the fact that the appellant is a first offender and that the appellate and complainant are neighbors. I do reduce the sentence to 10 years imprisonment.

Dated, signed and delivered at Nyeri this 19TH day of JULY 2017

RACHEL NGETICH

………………………

HIGH COURT JUDGE