[2023] KEHC 25432 (KLR)

Kamule v Republic (Criminal Appeal E083 of 2022) [2023] KEHC 25432 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25432 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E083 of 2022

TM Matheka, J

November 10, 2023

Between

Patrick Muteti Kamule

Appellant

and

Republic

Respondent

(Appeal form the judgement, conviction and sentence of Hon. Mwaniki J (CM) in Makueni CMCRC E026/2022 of 17/5/2022))

Judgment

1. The appellant was charged with Grievous Harm Contrary to Section 234 of the Penal Code. The particulars of the charge are that “on 29/5/2020 at about 1900 Hours at Kinyau Village, Thwake Sub location, Itangini Location in Mbooni East Sub county he did grievous harm to John Kasaku Kitonyo.”

2. The accused pleaded not guilty to the charge and prosecution called 3 witnesses - the complainant, his wife and a clinical officer who produced the P3 .

3. PW1 John Kasaku Kitonyo, the complainant told the court that on 25th May 2020, the accused fought with his brothers. That he and others went and separated them. The accused told them that he would still deal with his brothers and those who had separated them.

4. He testified that on 29th May 2020 at about 7. 00pm while walking home he met the accused who had an object that resembled a panga. He said after they passed each other, he was attached from behind and cut on the shoulder. He turned and saw it was the accused. He asked accused why he had cut him but the accused never responded but instead took off. He screamed and people, among them his wife Dorcas (PW3) came to the scene. He said he was taken to hospital while unconscious and admitted for three weeks. He said accused went underground until 2022 when he was arrested. He said the accused is his neighbour.

5. PW3 Dorcas Munyao, complainant’s wife said on 29th May 2020 she was at a home at about 7. 00pm when she heard the complainant screaming saying he was being killed. She ran to the scene and found him on the ground with a deep cut wound around the neck. That she also saw the accused who had panga. She screamed and the accused ran away as other people came to the scene. People went looking for the accused person to no avail.

6. At the close of the case for the prosecution the accused was placed in his defence. He told the court on 29th May 2020 at about 5. 00pm he went home and ate food and slept. The he heard some voices calling him. He answered and some people said he was in the house. The people broke into his house and he hid behind the door. He then ran off and the people chased after him while threating to kill him if he went back. When he went back he found his items stolen and his crops destroyed. On 15th January 2022 he went back home from Nairobi and on 26th Januarys 2022 he went to report to Kalawa Police Station and he was arrested and taken to court. He denied the charges. He told the court that he had grudges with his neighbours as he was prolific farmer selling a lot of farm produce.

7. On cross examination the accused told the court that he ran away from home on 29th May 2022. He came back home in January, 2022 and went to police station to report about breakage into his house. He was invaded at home at about 7. 00pm on 29th May 2020. He said the complainant is his village mate. He said he had no grudges with him. He said he knew the complainant’s wife and he had no grudges with her. He never got to know if complainant was injured on 29th May 2020.

8. At the close of the defence the learned trial magistrate considered the evidence - and found the accused guilty of the offence as charged, convicted him and sentenced him to 10 years imprisonment.

9. It is against this decision that the appellant brings this appeal on the following grounds;1. That the learnt trial magistrate erred in both law and facts by convicting the appellant on a charge sheet that was defective.2. That the learnt trial magistrate erred in both law and facts by not appreciating that the plea having been taken on a defective charge sheet was prejudicial to the appellant and not tenable in law.3. That the learnt trial magistrate erred in both law and facts by convincing the appellant of the offence of grievous harm without any proof that the appellant inflicted any injury to the complainant.4. That the learnt trial magistrate erred in law by misdirecting himself on the facts and law and the conviction of the appellant was against the weight of the evidence.5. That the circumstances for identification were not conclusive.6. There was no identification parade conducted to identify the attacker as the offence occurred at night.7. The case was not proven beyond reasonable doubt and the investigation was very shoddy thus could not be relied on.

10. The appeal was canvassed via written submission.

11. Citing Hillary Waititu Mweru V R [2017]eKLR the appellant submits that by omitting the word “unlawfully” in the particulars of the charge the state presented a defective charge. He also cited Achoki v R [2002] EA 288 to the effect that failure to use the term “unlawful” and “without consent” in a charge sheet was fatal to the charge - and Kamunya v R [2009] EA 181 (Sic) that a charge must be explicit on the offence and the law.

12. On the strength of the holding in Erro Oba v R [2009] eKLR the appellant urged this court, should it be persuaded that the charge sheet was defective - not to order a retrial because the defect was as result of the prosecution’s failure to draw the charge sheet in accordance with the law. This was the position of the Court of Appeal in Ekimatu v R Criminal Appeal No. 151/2004 (Eldoret) where it was held the where the 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.

13. On the issue of identification of the attacker by the complainant the appellant the reliance on the visual identification of the suspect by the appellant was insufficient. The appellant urged the court to find that the learned trial magistrate was in error because there was not sufficient evidence that identification was without doubt. He cited - Ngungu Kimaru v R (1979) KLR 283, Paul Etole & Another v R CRA 24/2000 ,Walter Amolo v R [1991] eKLR 254. That the complainant told the court that he was attacked from behind and the attacker took off. Evidently he could not have identified that attacker and PW3 could not have seen the attacker

14. He further argued that the failure to call the investigating officer denied the court relevant evidence and cited Joshua Kanina Ndungu v R [2020] eKLR. He argued that this was a case where the identity of the suspect was in question hence the evidence of the arresting and investigating officers was crucial in the case for the prosecution.

15. The state in opposition submitted that the omission of the term “unlawful” in the particulars of the charge was a misstate that was not prejudicial to the appellant during the trial - that this was a technicality.

16. On identification - it was submitted that there was a bright moon light and the appellant has positively identified. The Prosecution relied on Joseph Otieno Oketch v R [2019] eKLR where Wamunga v R [1989] KLR 426 was cited on the proposition that“… where the only evidence against a defendant is the evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction”

17. It was also argued that the prosecution proved its case beyond a reasonable doubt on the evidence presented and did not have to call any other - see S.C V R [2018]eKLR. That the failure to call the investigation officer was not fatal to the case for the prosecution as the evidence available was sufficient to secure a conviction.

18. On the sentence it was argued that s. 234 provides for life imprisonment. It was submitted that the appellant deserved the sentence he got from the offence he committed. The state urged the court to be guided by Nicholas Mukila Ndetei V R [2019] eKLR on the benefits of incarceration.

19. I have carefully considered the evidence eon record, the oral submissions and the issues for determination are whether the prosecution proved its case beyond a reasonable doubt, and whether the sentence is harsh.

Analysis and Determination 20. It is now settled that the duty of a first appellate Court is to reevaluate the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses. See Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (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 finding and conclusion; 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 vs. Sunday Post [1958] E.A 424. ”

21. The duty of the first appellate court remains as set out by the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

22. This position was also taken by the Court of Appeal in Kiilu & Another vs. Republic [2005]1 KLR 174, 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.

23. With this in mind I have taken into consideration the grounds of appeal, the rival submissions and I find that the following issues arise for determination;a.Whether the charge sheet was fatally defective and if so, what is the outcomeb.Whether the offence of grievous harm was proved to the required standard.

24. On whether the charge sheet was fatally defective, the appellant has taken a major issue with omission of the word ‘unlawful’ in the particulars of the offence. The charge of grievous harm is set out by section 234 of the Penal Code. It states“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

25. The Penal Code at s. 4 defines grievous harm “grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense; and “harm” means any bodily hurt, disease or disorder whether permanent or temporary

26. It is therefore evident that the word ‘unlawful’ is an important element of the offence of grievous harm and the prosecution must prove that the grievous harm complained of was inflicted in an unlawful manner.

27. The omission of the word ‘unlawful’ in the particulars of the offence has been found to render the charge fatally defective because not all injuries inflicted by a person on another are unlawful. It could be in self defence or by accident. In Hillary Waititu Mwera above for instance, the Judge took the view that;“….the legislature must have deliberately included this word in the definition of the offence because not all injuries caused to a person by another are unlawful; for instance, they may be accidental or may arise where a person is acting in self defence. In such cases, it is the obligation of the prosecution to prove that the injury complained of was occasioned by unlawful act of its perpetrator.”

28. Further, in the case of Peris Wairimu Gichuru –vs- R [2007] eKLR, the learned Judge held that the omission of the word ‘unlawful’ made the charge defective because if indeed the grievous harm was not unlawful, then the charge did not disclose any offence.

29. I am persuaded that in a charge of unlawful grievous harm, the omission of the word “unlawful” is fatal because that is the core of the offence. When the prosecution simply states that the accused is charged with causing grievous harm, no offence is disclosed. It is not a technicality.

Whether the offence of grievous harm was proved to the required standard. 30. As captured elsewhere above, the ingredients of the offence are;a.The victim sustained grievous harmb.The accused caused or participated in causing the grievous harm.c.The harm was caused unlawfully.

31. The P3 report dated 23rd June 2020 indicates that the complainant was found to have a “post-surgical scar at the right lateral aspect of the neck approximately 1cm x 8cm. Stitches still in situ. Tenderness noted” The discharge summary from Makueni County Referral Hospital indicates that he was admitted in hospital on the 30th May 2020 and discharged on the 4th June 2020 with a deep cut wound on the lateral aspect of the neck extending posteriorly following assault with a panga. On admission it was bleeding profusely. Further, the Clinical Officer, Mr. Joseph Biwott (PW2), testified that he examined the complainant three weeks after the assault and he was still in deep pain. The wound had been stitched and the stitches were still in place. There is no doubt therefore that the complainant sustained injury which was assessed as grievous harm.

32. As to whether the grievous harm was caused by the appellant, the complainant, PW1, testified that this event happened on the night of 29th May 2020 at about 7. 00pm. He told the court that;“….I met the accused. He was wearing a black jacket. He held an object which looks like a panga. There was bright moonlight we passed each other. I then was cut on the shoulder. I turned and saw it was accused. I asked him why he had cut me. He never responded but instead took off.. I screamed and people came to the scene and found me bleeding profusely. Among the people who came was my wife Dorcas…”

33. On cross examination he told the court that the accused cut him from behind. That the accused had threatened him on 25th May 2020 and attacked him on 29th May 2020 after they passed each other.

34. Dorcas told the court that the unfortunate event happened on the 19th May 2020. She was at home when she heard her husband screaming. She rushed to where he was and found him on the ground tried to lift him in vain. That there was a bright moon and she found the accused at the scene. That he had a panga. She screamed and he ran into the bushes. That when people came after her screams she told them that her husband was cut by the accused. She testified that the accused was arrested with the panga.

35. There is no doubt that the appellant and the compliant and his wife were known to one another. That is admitted all round. The only question is whether the evidence of identification of the attacker was established.

36. To begin with the case for the prosecution is that a grudge between the complainant and the appellant was planted on 25th May 2020, four days before the attack during which it is alleged the appellant threatened to deal with the complainant. The prosecution did not place before the court evidence to support this allegation by the complainant. The prosecution alleges that the complainant and others stopped a fight between the accused and his brothers. None of the other participants in the alleged separation of the alleged fight was called to corroborate his evidence, yet it is the case for the prosecution that this was the basis of the case for the prosecution.

37. According to the prosecution the reason for the attack by the appellant was that event of 25th May 2020. That event was not supported by any evidence other than the allegations by the complainant.

38. On the material night the complainant testified that he was cut from behind. He turned and saw it was the appellant who then took off. Evidently PW3 his wife could not have been telling the truth when she testified that she found the appellant at the scene while still holding a panga. Her testimony that the appellant was arrested with the panga was also not true because according to the appellant he was arrested on the 15th of January 2021 when he went to report the theft of his items from his house. Hence it was not true that the appellant was arrested with the panga. In any event no arresting officer or investigating officer testified

39. The evidence of recognition or identification by the complainant was that he met a person who was in a black jacket in the night. They passed each other. There was no talking. How soon after they passed each other was he attacked? It is after he was cut that he says he turned and says he saw it was the appellant. The attack was sudden, from behind and according to the medical evidence the injury was serious. These in my view are not circumstances where the court can draw the conclusion with any certainty that it was the appellant who inflicted the said injury. There is no other description evidence to tie the appellant to the offence and the alleged grudge was not established. In Wamunga v R above the court stated;“It is trite law that where the only evidence against the defendant is of identification on recognition, a trial court is enforced to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction” see Joseph Otieno Oketch V R above

40. This was at night. The probability of mistake cannot be ruled out especial in this situation where the brightness of the moon is unknown, where no other feature of the assailant other than an alleged threat, black Jacket that was mentioned the complaint’s evidence and that of his wife - both of which I found unreliable, nothing else was placed before the court. It was alleged that the panga used to attack the complainant was recovered from house of appellant but by who and in what circumstances, that evidence was not provided by the state. ? This was crucial evidence as it would tie the accused to the offence. In fact the wife of the complainant testified on oath that the appellant was arrested with the panga. There was no evidence to support that claim from the investigation officer. It was therefore not established as to where the panga was recovered from the appellant and whether it was connected in any way to the commission of this offence.

41. In the circumstances, I find that the appeal has merit on the two fronts, the charge sheet was fatally defective and even then, the evidence was insufficient to support the conviction of the appellant as the perpetrator.

42. The conviction is quashed, the sentence is set aside and the appellant set at liberty unless otherwise legally held.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 10TH NOVEMBER 2023MUMBUA T MATHEKAJUDGECA MwiwaAppellant presentKazungu for State