[2022] KEHC 2629 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CRIMINAL APPEAL NO.E006 OF 2021

JOHN RIZACK MACHARIA.............................................................................APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence of Hon.E.K.Too, PM,

in Moyale PMC Criminal Case No.544 of 2019)

JUDGMENT

The appellant herein was convicted of the offence of attempted murder contrary to section 220 (a) of the Penal Code and sentenced to serve 7 years imprisonment. He was aggrieved by the conviction and the sentence and filed the instant appeal.

2. The grounds of appeal are:

That the trial magistrate erred in law and in fact in failing to note that the charge of attempted murder was not proved beyond reasonable doubts.

That the trial magistrate erred in law by convicting the appellant on evidence that lacked requisite standard of beyond reasonable doubt.

That the learned trial magistrate erred in both law and fact by rejecting the appellant’s defence without giving cogent reasons.

3. The appeal was canvassed by way of oral submissions. The appellant submitted that he was wrongly convicted of the offence. That it is the complainant in the case who hit him with a piece of wood and in turn he hit her back with it. He submitted that he never hit her with a hammer.

4. The appeal was opposed by the learned prosecution counsel, Mr. Ochieng. The prosecution counsel submitted that the prosecution had proved the offence of attempted murder against the appellant. That the victim was the appellant`s estranged wife. That she was attacked in broad daylight. That her evidence was corroborated by PW2 and PW3 who were at the scene of the attack. That the appellant attacked his victim with a hammer. That the medical officer who completed the P3 form assessed the degree of injury as grievous harm. That it was clear from the evidence that the intention of the appellant was to kill his victim.

5. The prosecution counsel further submitted that the appellant`s defence was baseless and was not backed by any evidence. That the allegation that the appellant hit the complainant with a piece of wood is new evidence as it was not raised during the trial. That the evidence ought to be disregarded as the assault weapon was not brought into contestation during the trial. Counsel urged the court to dismiss the appeal.

6. The evidence that was adduced against the appellant at the lower court was that the complainant was a wife to the appellant. That she had had a disagreement with the appellant and went back to the home of her mother. That on the 2nd December 2019 she was at the home of her mother when the appellant went there at 9 a.m. He found her mobbing the house. He hit her on the legs and she fell down. He then hit her with a hammer on the head three times. She lost consciousness. She later found herself in hospital.

7. It was the case for the prosecution that the assault on the complainant was witnessed by Hawo Ali Guyo PW2 and Hadija Abdi Ali PW3. PW2 testified that at the material time she was sleeping in the kitchen when she heard the complainant screaming. She went to where the complaint was and she found the appellant hitting her with a hammer on the head. She intervened and the appellant also attacked her. He broke her eye glasses. They summoned some people and the complainant was taken to hospital.

8. Hadija PW3 testified that she is a neighbour to the complainant. That on the material day she was in her kitchen when she heard people shouting. She then saw the appellant hitting the complainant with a hammer on the head.

9. The case was reported to the police and was investigated by PC Abdirizak Abdo PW4. He found the complainant at Moyale Sub-County Hospital. He was told that the complainant had been hit by her husband with a hammer on the head. He was given the hammer. The appellant was taken to the police station by members of the public. The complainant`s P3 form was completed. The degree of injury was classified as harm. He charged the appellant with the offence of attempted murder. During the hearing of the case in court he produced the hammer, the treatment notes and the P3 form as exhibits, Pexh.1-3 respectively.

10. When placed to his defence the appellant stated that it is the complainant herself who hit him with a piece of wood on the mouth and he in turn hit her with it on her back. He was later arrested in the evening at his house. The people who arrested him stole his money. He was taken to the police station.

Analysis and Determination –

11. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced at the lower court and draw its own conclusions while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify. In Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal held that:

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.

12. The appellant challenged the conviction on the ground that the charge was not proved beyond reasonable doubt and secondly on the ground that the trial court did not give cogent reasons for rejecting his defence.

13. The appellant was facing a charge of attempted murder contrary to section 220 (a) of the Penal Code. The section provides as follows:

Any person who—

a. attempts unlawfully to cause the death of another; or

b. with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.

14. Section 388of the Act defines ‘attempt’ as follows: -

1. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

2. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

3. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

15. The ingredients of the offence of attempted murder were considered by Riechi J. in Joseph Chemuku Wanyonyi v Republic (2021)eKLR where upon citing section 388 of the Penal Code stated the following:

From the above section, firstly, the prosecution needed to prove beyond reasonable doubt that the appellant attempted to unlawfully cause the death of the complainant. The prosecution needed to prove theActus Reus element. That is, the prosecution needed to prove that the appellant did an act that endangered the life of the complainant.

Secondly, the prosecution also needed to prove theMens Rea element; that is; the intention to kill. This position was stated in the case ofCheruiyot Vs Republic (1976- 1985) EA 47where it was emphasized that;

…..an essential ingredient of an attempt to commit an offence is a specific intention to commit that offence. If the charge is one of attempted murder, the principal ingredient and the essence of the crime is the deliberate intent to murder. It must be shown that the accused person had a positive intention to unlawfully cause death and that intention must be manifested by an overt act.

….The Court of Appeal (Githinji, Mwilu and M'Inoti, JJA) in Abdi Ali Bare Vs Republic (2015) eKLR,held;

“..... The more challenging question in a charge of attempted murder is the actus reus of the offence. Although a casual reading of Section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence

In the present appeal, to prove attempted murder on the part of the appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with commission of the murder. Whether there has been an attempt to commit an offence is a question of fact. The act alleged to constitute attempted murder, for example, must be sufficiently proximate to murder to be properly described as attempt to commit murder.

16. The ingredients of the offence were also considered by Cherere J. in Janet Mware & Another v Republic (2021)eKLR where she stated that:

In order to sustain a conviction for attempted murder, it is not sufficient to demonstrate or to prove that the complainant/victim was injured but it must be proved that the Appellant had a positive intention unlawfully to cause death.

The Court of Appeal for Eastern Africa had occasion to deal with this question inRepublic versus Luseru Wandera s/o Wandera (1948) EACA 105. The court in setting aside a 10-year sentence for attempted murder stated that an intent merely to cause grievous harm, whilst sufficient to support a conviction for murder, is not sufficient to support a conviction for attempting unlawfully to cause death. The court reiterated the view that a conviction for attempted murder can only be supported by proof of a positive intention unlawfully to cause death.

17. It is then clear that for the offence of attempted murder to be proved the prosecution has to prove that the accused did a covert act that was likely to endanger human life and that in doing so the intention was to unlawfully cause the death of his victim.

18. In the present case the appellant admits to have been at the scene and only denied that he hit the complainant with a hammer. On my own analysis of the evidence I entertain no doubt that the appellant hit the complainant on the head with a hammer. The incident occurred in broad day light and was witnessed by two witnesses, Hawo Ali PW2 and Hadija Abdi PW3. The two saw the appellant hitting the complainant with a hammer. The appellant never advanced any reason why the prosecution witnesses would have lied against him. In addition, he never questioned the witnesses in cross-examination that he hit the complainant with a piece of wood. The defence of the appellant that he hit the complainant with a piece of wood can only have been an afterthought. The trial court was therefore correct in finding that the appellant hit the complainant with a hammer on the head.

19. Having found that the appellant hit the complainant with a hammer on the head, the question is whether his intention in doing so was to kill the complainant. The trial court made the following finding on the issue:

The complainant and the witnesses told the court that the accused assaulted her with a hammer on the head making her to lose consciousness. To me that was a very serious attempt on the complainant`s life. The assault weapon being a hammer clearly established the intention of the assault (was) to kill the complainant.

20. The doctor who examined the complainant and filled the P3 form classified the degree of injury as “harm”. This means that the injury inflicted on the complainant was not life threatening. The mere fact that the appellant hit his victim on the head with a hammer did not establish a positive intention to kill the complainant. The charge of attempted murder was not proved. The appellant was wrongly convicted of the offence.

21. However, there is no doubt that the appellant assaulted the complainant and occasioned her bodily harm. Section 251 of the Penal Code creates the offence of assault causing actual bodily harm. The section provides that:

Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years.

22. The offence committed by the appellant was therefore assault causing actual bodily harm contrary to section 251 of the Penal Code. The conviction and sentence on the offence of attempted murder are set aside. The conviction is on attempted murder is substituted with a conviction of the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code.

23. The offence of assault causing actual bodily harm carries a maximum sentence of five years imprisonment. The appellant did not offer any mitigation before the trial court when he was given an opportunity to do so. A pre-sentencing report was presented to the trial court. It indicated that the appellant was not remorseful and that he had declined to be interviewed by the Probation Officer. It is clear that the appellant was not a suitable candidate for non-custodial sentence. In view thereof, I sentence the appellant to serve two-and-a-half years imprisonment for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The sentence is to run from the date of arrest, i.e. on 3/12/2019.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 2ND DAY OF FEBRUARY 2022.

J.N. NJAGI

JUDGE

IN THE PRESENCE OF:

MR. NGIGI FOR REPUBLIC/RESPONDENT

APPELLANT IN PERSON

COURT ASSISTANT - PETER

14 DAYS R/A.