[2022] KEHC 410 (KLR)

John v Republic (Criminal Appeal E036 of 2021) [2022] KEHC 410 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 410 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E036 of 2021

RPV Wendoh, J

May 5, 2022

Between

Alfred Dicken John

Appellant

and

Republic

Respondent

Judgment

1. Alfred Dicken John, the appellant herein was convicted on 15/5/2020 by the Senior Principal Magistrate, Migori, for the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

2. The particulars of the charge are that on 28/9/2019, at Ong’er area in Nyatike Sub County in Migori County, unlawfully killed Bonface Idid Bunde.

3. The case went to full trial with the prosecution calling a total of five (5) witnesses, while the appellant was the only defence witness.

4. After the conviction, the appellant was sentenced to serve seven (7) years imprisonment. The appellant is aggrieved by the whole judgment of the trial court and preferred this appeal vide the petition of appeal filed in court on 7/8/2021 in which he raises the following grounds of appeal:-1. That the trial court violated Article 50 (2) (g) and (h) of the Constitution;2. That the offence as charged was not proved to the required standard;3. That his alibi defence was not considered;4. That the prosecution failed to call a key witness.

5. He therefore prays that the conviction be quashed and sentence be set aside.

6. The court directed that the appeal be canvassed by way of written submissions. The appellant filed his submissions on 23/2/2022. He reiterates the grounds that the trial court’s failure to invoke Article 50 (2) (g) (h) grossly violated the appellants right to fair trial; that the evidence of the key witnesses PW2 and it was contradictory and hearsay. He relied on the decision of Zaro v Republic [1991] KAR 212 and Kiarie v Republic [1984] KLR 79 on the issue of identification at night. His submission was that the light at the scene was not sufficient for proper identification. He also submitted that the prosecution failed to dislodge his alibi or prove its falsity. Lastly, he urged that the medical evidence in the postmortem and P3 Form was contradictory. The appellant also challenges the sentence of seven (7) years to be harsh and excessive especially that he is a young man.

7. Opposing the appeal, Mr. Kimanthi , the prosecution counsel relied on the evidence that, PW2 who knew the appellant saw him hit the deceased with a piece of wood and his evidence was corroborated by the findings of the pathologist (PW3); that the alibi defence did not challenge the prosecution evidence, and was an afterthought. On sentence, counsel argued that seven (7) years was very lenient considering that Section 205 of the Penal Code provides that upon conviction under Section 202 of thePenal Code, one is liable to life imprisonment.

8. As regards violation of Article 50(2)(g) of the Constitution, counsel conceded that the court did not comply with it and the appellant’s right to fair trial was violated. However, counsel urged the court to order a retrial as the appellant was only sentenced on 15/2/2020 and he was not a first offender.

9. This is a first appeal and the duty of this court is to exhaustively re-examine all the evidence that was tendered before the trial court, analyses it and arrive at its own determination. The court has to however make allowance for the fact it neither heard nor saw the witnesses testify in order to assess their demeanor. See Kiilu v Republic [2005] eKLR.

10. PW1 Dorsila Achieng Bunde, the mother of the deceased, recalled that on 30/9/2019, she saw the appellant cross the road in Migori town and called police who arrested him following the injury he had caused the deceased on 28/9/2019.

11. PW2 Dominic Otieno recalled that on 28/9/2019 at about 8:00p.m while at Ong’er Trading Centre, he saw Major, whom he identified as the appellant, quarreling with Boniface, the deceased, over 500/=; that the appellant snatched a phone from the deceased and ran off, picked a piece of wood and started screaming; that the appellant ran, crossed the river and they followed him crossed the river so that they could give him his money so that he returns the phone to the deceased; that the deceased had Kshs. 1,000/=; the appellant stopped, took the 1,000/= from deceased and when they asked him for change of 500/=, he hit the deceased with a piece of wood on the head and ran away with the phone and the cash of 1,000/=; that the deceased fell and fainted. They took him to hospital and later reported to the police station. PW2 said that he first heard the two quarrelling and moved near and that there were street lights as they were near a kiosk which had lights. He had known the appellant for a long time.

12. PW3 Dr. Kibet Kimutai performed post mortem on the body of the deceased on 15/10/2019. He found that the deceased had a fracture of the skull, the bone was depressed and it extended from left to right side of the head. There was massive internal bleeding in the brain. He formed the opinion that the cause of death was severe injury due to blunt trauma to the head due to assault.

13. PW4 Oliech Jack Ranga recalled that on 28/9/2019 about 8:00 p.m He was at Nevade Hotel when he heard people talking in the darkness. He then saw Boniface (Bon Fara - deceased), Meja, the appellant and Dennis aka Dominic (PW2); that the appellant was ahead, Boniface in the middle and PW2) behind. At a distance of 10 metres, he heard deceased ask the appellant to give him money so that they could exchange; that the appellant had a piece of wood and that he asked the deceased if he knew him well; that the appellant then hit the deceased on the head with the piece of wood and deceased fell. He helped take the deceased to hospital. PW4 said he was able to see the people using street lights. Dennis whom he identified as Dominic Otieno Mango was also known to him.

14. PW5 PC Benjamin Okumu took over this matter as the Investigating Officer. He established that Accused, deceased and Dominic Otieno were playing lottery; that the accused won 500/= and was to be paid by the deceased; that the deceased had Kshs. 1,000/= which the appellant snatched, picked a piece of wood, walked away, that deceased and a friend followed the appellant asking for the Kshs. 500/= when the appellant hit the deceased with the piece of wood when near Nevade Hotel.

15. When called upon to defend himself the appellant made an unsworn defence where he stated that on 28/9/2019 evening, he was in Migori where he works; that nothing happened that day and he never assaulted the deceased; that he was stopped on 30/9/2019 and asked to go to the hospital. He went and was shown a patient and the deceased’s mother. Said that it is him who assaulted her son and he was arrested and charged for an offence he knew nothing about.

16. I have considered the evidence tendered before the trial court and I am satisfied that PW3 and PW4 witnessed the appellant assault the deceased. Their evidence is corroborative in all material particulars. PW2 confirmed that he was with the deceased when the appellant assaulted the deceased. PW4 confirmed that he first saw the deceased, Accused and PW2 before he saw the appellant attack the deceased with a piece of wood. The findings of the doctor (PW2) are consistent with the testimonies of PW2 and PW4. The appellant raised an alibi defence. It is trite that the burden always remains with the prosecution to prove its case beyond reasonable doubt and at no time does the burden shift to the defence. Even when one raises an alibi defence he has a duty to prove its truth. In the case of Charles Anjare Mwamusi v Republic CRA 226 of 2002 the court of Appeal stated thus:-“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to the charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable”.Kiarie v Republic [1984] KLR 739 at page 745.

17. In Ssentale v Uganda [1968] EA 36, The court also stated“the prosecution always bears the burden of disproving the alibi and proving the appellant’s guilt.”

18. I have considered the alibi raised by the appellant but the same has no substance. First, it was raised for the first time in the defence hence an afterthought. Though the appellant claimed to have been at work in Migori on the material date, yet he never even alluded to where his work place is and therefore the prosecution could not try to counter check. The alibi does not raise any doubt in the prosecution case. The alibi defence is hollow and was properly rejected.

19. The appellant raised the ground that his right to fair trial was violated and the prosecution conceded that ground. Article 50 (2) (g) and (h) provides as follows:-(2)Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by, an advocate, and to be informed of his this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”

20. Article 50 2 (g) cannot be limited by dint of Article 25. The trial court must inform an accused person of his right to counsel promptly. In the case of Chacha Mwita v Republic Criminal Appeal No. 33 of 2019 Mrima J considered the said provision and so did J. Nyakundi in Joseph Kiema Philip v Republic[2019] eKLR where the Judged said:-

21. It is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced.”

22. The courts held that accused must be informed of the said right to legal representation promptly which is before plea or soon thereafter so that the accused can decide whether or not to hire a lawyer and if he cannot afford, one and still wants legal representation he can apply to the committee under legal Aid Act. At paragraph 28, 29, 30 – 35 J. Mrima said as follows:-28. Article 50(2)(g) of the Constitution dictates that the accused person must be informed of the right to legal representation promptly. In rightly answering the question Nyakundi, J. in Joseph Kiema Philip (supra) stated as follows: -…. The earliest opportunity therefore should be at the time of plea taking; the first appearance before plea is taken or at the commencement of the proceedings, that is at the first hearings… (emphasis added).

29. I must emphasize that the accused person must be informed of this right immediately he/she appears before a court on the first appearance regardless of whether the plea would be taken at that point in time or later. Of importance is the emphasis that since the court speaks through the record then the record must be as clear as possible and ought to capture the entire conversation between the court and an accused person. A court should therefore not be in a hurry to take the plea before ascertaining that it has fully complied with Article 50(2)(g) of the Constitution among others as required. Circumstances calling, a court should boldly postpone the plea-taking until satisfied that the court has fully complied with the law. 30.

30. In this case the trial court explained the right to representation to the Appellant at defence stage. That was too far late in the day.

31. Having dealt with the various limbs of the right under Article 50(2)(g) of the Constitution and in view of the status of the record as espoused hereinabove I must return the verdict that the trial court failed to comply with the dictates of Article 50(2)(g) of the Constitution. The Appellant was hence not accorded a fair trial in line with Article 50(2)(g) of theConstitution.

32. ………………

33. …………..

34. Having said so, the inevitable question that now follows is: What is the effect of the derogation of the right under Article 50(2)(g) of the Constitution in the circumstances of this case?

35. There are two schools of thought on the issue. The first school fronts the position that once the derogation of the right is confirmed then the entire proceedings, judgment and sentence before the trial court are vitiated and stand null and void ab initio. The other school fronts the position that failure to inform an accused person of his/her right to legal representation does not necessarily have the effect of vitiating the proceedings in a criminal trial unless it is proved that substantial prejudice to the accused person or a miscarriage of justice was occasioned.

23. The trial court having failed to inform the appellant of his right to counsel, the appellant was denied his right to fair trial and that omission rendered the trial a nullity. The conviction is hereby quashed and sentence set aside.

24. As regards alleged breach of Article 50 (2) (h) the right to counsel provided at State expense is not absolute. One has to prove the injustice will be suffered if no counsel is given by the State.

25. The next question then is whether this court should order a retrial. The case of Ahmed Sumar v Republic [1964] EALR 482 set out the principles upon which a court may order a retrial. The court said:-“It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.”

26. I have considered above, the evidence tendered before the trial court and I am of the firm view that the potentially admissible evidence on record is likely to result in a conviction. The appellant was charged with a very serious offence of manslaughter which attracts a sentence of life imprisonment if found guilty and it is proper that the culprit do face the full force of law if convicted. Further to the above, the appellant was sentenced to seven (7) years on 15/5/2020. He has so far served only two (2) years out of the seven (7). He will not suffer prejudice if a retrial is ordered.

27. I therefore order a retrial at Migori CM’s Court before any other magistrate other than Mr. Obiero SPM who convicted the appellant. The appellant is hereby released to the Macalder Police Station to be presented before the CM’s court Migori for plea on 9/5/2022.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 5THDAY OF MAY, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Omooria for the Respondent.Appellant in person.Nyauke Court Assistant