[2024] KEHC 3615 (KLR)

Kesebe v Republic (Criminal Appeal E002 of 2023) [2024] KEHC 3615 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KEHC 3615 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E002 of 2023

MW Muigai, J

March 7, 2024

Between

Dickson Kiplagat Kesebe

Appellant

and

Republic

Respondent

(Being an Appeal against the judgment and/or order rendered by Hon. Stephen Jalango (PM) in Mavoko CMCR Case No.942 of 2019 delivered on 10th January, 2023)

Judgment

Background 1. The Appellant herein Dickson Kiplagat Kesebe was charged with an offence of Desertion from the Service contrary to Section 94 (1)) of the National Police Service Act of 2021.

2. The particulars of the offence being that on the 30th day of March, 2019 at Meteorological Department headquarters under CIPU headquarters within Machakos County, did absent himself from duty without leave or just cause from 30th March, 2019 to the date of arraignment which exceeded the stipulated 10 days.

3. Plea was taken on 4/02/2020 and the Accused denied the charges and a Plea of Not Guilty entered on his behalf.

4. The Prosecution called a total of six (6) witnesses in support of its case while the Defence gave unsworn testimony without calling any witnesses.

Prosecution Case 5. Pw1 No. 2911312462 IP. Peter Karanja of Athi River Police Station told the Court that in the year 2018 he was in charge of A. P. Meteorological Services. On 29/03/2019 a group of new officers reported for deployment and one of them was Dickson Kesebe. On 30/03/2019 he held a parade as per policy procedures and he discovered that one officer was missing. He instructed the duty officer to indicate that the officer was away without office leave. On 1/04/2019 Pw.1 he was transferred and he handed over to the new in charge one Inspector Peter Mwendwa. He further stated that the said when Dickson Kesebe reported at meteorological department he had no records as well as force uniform. He was supposed to report with a personal letter since he was being deployed.

6. Pw.2 no. 2157102 Inspector Peter Mutuku Mwendwa stated that he reported on transfer to the Meteorological Department Athi River on 1/04/2019. He took over the duties of the Department from Pw1. He was informed that one officer (Dickson Kesebe) had disappeared from duty. After 10 days he reported to his seniors about the absentism of the said officer (Dickson Kesebe). According to the Duty roster Dickson Kesebe was absent from 1/04/2019 – 15/04/2019. His seniors confirmed that Dickson Kesebe’s duty station was supposed to be Meteorological department.

7. Pw3 No. 96959786 Snr. Sgt Ronald Maingi told the Court that on 28th March 2019 he received a letter of police officers on transfer from Nairobi Water to Meteorological Department and others to other stations. He had called the heads in charge of the stations the officers were to report to. He also called the affected officers and gave them their transfer letters but Dickson Kesebe refused to take the transfer letter and did not give any reasons. When the motor vehicle which was transporting them and their personal effects to their new station arrived, Dickson Kesebe boarded and left with his luggage but declined to take his transfer letter. As per the rules if an officer refused to take the transfer letter, the letter is put in the file. It is always mandatory for the officer on transfer to report.

8. Pw.4 No. 997086005 IP. Kihara Anthony stated that on 3/02/2020 he was stationed at Critical Infrastructure Unit Athi River. He was directed to collect the accused person who was held at Jogoo House A. Accompanied by Apc Elijah Mutiri, Alex Mutua, Bernard Kamau and Maina Faiko (the driver) they went to Jogoo House A picked Dickson Kesebe and took him to Athi River police station where he was booked.

9. Pw.5 No. 232905 PC Alexander Mutua Mutune on 3/02/2020 he accompanied IP Anthony Kihara to the headquarters for re-arrest of the Dickson Kesebe.

10. Pw.6 No. 226290 CIP Ishmael Issachar Ahmed the Investigating officer stated that Dickson Kesebe and others were transferred from Nairobi Water Sewer Company to Kenya Meteorological Department on 28th March 2019. He stated that the officers were provided with pool transport. Dickson boarded the vehicle and reported to his new station at 1900 hrs on 29th March 2019. They were received by the in charge Pw3 IP Peter Muiruri. Dickson was to be deployed to his new station. On 30th March 2019,Dickson locked his house at Meteorological department and went away. Efforts to reach him were futile and on 15th April 2019 Dickson was traced and told to report to his duty station. On 16th April, 2019 the salary for Dickson Kesebe was stopped.

11. An inquiry file with all documentation was opened as per Section 94 of the National Police Service Act and a charge sheet prepared on 19th November, 2019. Dickson Kesebe was gazetted on 4th December as an officer who had deserted duty. Dickson alleged that he was verbally transferred but his transfer letter was produced as an exhibit.

Defence Hearing 12. Dickson Kiplagat Kesebe in his unsworn testimony told the Court that he used to work as an Ap. Officer. On 30/03/2019 he was stationed at Nairobi Water Sewerage. On 27th March 2019 he was informed by Snr. Sgt Ronald Maingi that he had been transferred to Meteorological department along Ngong Rd. The information was relayed verbally. He requested for a transfer letter but was told there was no transfer letter. He declined to go on transfer because he could not be received without transfer letter. He was not issued with any documentation therefore he continued working at the same station during the month of April. When he failed to receive his April salary he reported to National Police Service Commission. He used to earn an allowance of Kshs.1,000/- per day at the Nairobi Water. He stated that the last allowance was paid on 15th May, 2019 meaning that he was still working for Nairobi Water. He further stated that desertion is normally 10 days in the police force. After the said period the commander should send a signal to the rural home of the officer who has deserted after failing to get him/her via phone. The application under Section 59(3) needs to be done after 90 days to have the deserter put in the list of wanted person and in his case it was done after 8 months. He finally stated that he was never issued with any transfer letter nor given matching orders.

Judgment Of The Trial Court 13. The Trial Court delivered its Judgment dated 10th January, 2023 and found the Accused person guilty under Section 215 of the Criminal Procedure Code. The Accused was fined Kshs. 50,000/- in default serve one (1) year imprisonment.

Appeal: 14. Aggrieved by the Judgment and/or order rendered by the Trial Court the Appellant herein filed his Memorandum of Appeal based on the following 3 grounds of appeal;-1. That the Learned Magistrate erred in law and in fact by convicting the Appellant on defective charge sheet contrary to Section 134 of the Criminal Procedure Code.2. That the Learned Trial Magistrate erred in law and in fact in failing to find that there were discrepancies and numerous contradictions in the prosecution case that raised reasonable doubt in favour of the Appellant.3. That the Learned Magistrate erred in law in convicting the Appellant notwithstanding the fact that the prosecution failed to discharge the burden of proof fully and satisfactorily.

15. The Appeal was canvassed by way of written submissions.

Written Submisisons Appellant Submissions dated 19th June, 2023 16. On behalf of the Appellant it is submitted the Trial Court erred in law and in fact by convicting the Appellant on defective charge sheet contrary to Section 134 of the CPC as the charge sheet reads P/No.2000812810 APC Dickson Kiplagat Kisebe while his P/No is 200812819.

17. Reliance is made in the case of Kipkirui Arap Sigilai & Anor – vs- Republic [2004] the Court of Appeal held as follows; -“The principal of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence which such an accused is charged with should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defense.”

18. In the instant case the charge sheet does not have the particulars as required in law. There is no digital occurrence book number which failure indicates that the incident never occurred. The P/No indicated in the charge sheet does not belong to the accused.

19. The Trial magistrate erred in law and in fact in failing to find that there were discrepancies and numerous contradictions in the prosecution case that raised reasonable doubt in favour of the appellant.

20. Reliance is made in the case of Erick Onyango Ondeng’ vs- Republic [2014] eKLR where the Court of Appeal held that:-“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

21. It is finally submitted that the Trial Magistrate approached the whole question of the Appellant in a prejudicial manner to the detriment of the appellant causing miscarriage of justice.

Respondent’s Submissions 22. On whether the charge was defective it is submitted that the components/ingredients of the charge constitutes as follows:-“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

23. In the instant case the Appellant was charged with the offence of desertion. The particulars of the charge sheet were well spelt out, which included the date of the offence. The Appellant participated in the trial knowing very well the charges he was facing therefore there is no miscarriage of justice or prejudice since he was accorded all the rights to a fair trial. Furthermore the Appellant did not raise any objection during the trial.

24. The omission of the Digital OB Number and the Appellant’s P/No can be cured under the provisions of Section 382 of the Criminal Procedure Code which provides that:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

25. On whether the Trial Court failed to observe the contradictions and inconsistencies of the prosecution case, the prosecution availed direct and documentary evidence and the ingredients were well conversed in the trial.

26. It is finally submitted that the conviction and sentence against the appellant is sufficient and appropriate.

Determination 27. This Court considered the appeal trial Court record and written submissions filed by parties through respective Counsel.

28. The role of 1st appellate Court is settled by case-law thus;The Court of Appeal in the case of Okeno v Republic [1972] E.A 32 of the obligation of the first appellate court stated 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] E.A. 336) 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. (Shantilal M. Rulwala Vs. Republic [1957] E.A. 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.”

29. That the Learned Magistrate erred in law and in fact by convicting the Appellant on defective charge sheet contrary to Section 134 of the Criminal Procedure Code.

134. Offence to be specified in charge or information with necessary particularsEvery charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

29. The Charge sheet /Information in the Trial court record; outlined the Statement of offence /charge as Desertion from service c/s 94 (10 of National Police Service of 2011. The particulars of offence that on 30 /6/2019 at Meteorological Department Headquarters under CIPU HQ within Machakos County, did absent himself from duty without leave or just cause from 30/3/2019 to date which exceeds the stipulated 10 days.

30. Therefore, the charges were following the law, the issue of the charge sheet should contain the OB number and the Appellant’s service number correctly indicated are not a mandatory requirement in compliance with Section 134 of CPC. The appellant did not raise any objection that there was mistaken identity, he responded to the Charge as read and pleaded not guilty and participated in the proceedings and had legal presentation throughout.

31. The charge sheet herein outlined an offence known to law and in clear and unambiguous manner and the appellant was able to plead to the specific offence and there was/is no miscarriage of justice as submitted in Kipkurui Arap Sigilai & Anor vs Republic [2004] eKLR & Peter Nkothe Gatundu vs Republic [2021] Eklr.

32. On the next issue the Appellant submitted that the offence occurred in Nairobi County and he ought to have been charged in Nairobi County. The particulars of the offence confirm that the offence of desertion was committed in Meteorological Department Headquarters under CIPU HQ in Athi river which is within Machakos County. The offence was committed in Athi River which is in Machakos County.

33. That the Learned Trial Magistrate erred in law and in fact in failing to find that there were discrepancies and numerous contradictions in the prosecution case that raised reasonable doubt in favour of the Appellant.

34. That the Learned Magistrate erred in law in convicting the Appellant notwithstanding the fact that the prosecution failed to discharge the burden of proof fully and satisfactorily.

35. PW1 stated that on 29/03/2019 new officers reported for deployment among them was Dickson Kesebe. The appellant arrived without the transfer letter and Force uniform. On 30/03/2019 he held a parade and discovered that the Appellant was missing. He instructed the duty officer to indicate that the Appellant was away without office leave. On 1/04/2019 PW1 was transferred and he handed over to the new in charge one Inspector Peter Mwendwa.

36. PW2 started work at on 1/04/2019 at Metrological department and took over from PW1 and he was informed that one officer (Dickson Kesebe) had disappeared from duty. After 10 days w.e.f.1/04/2019 – 15/04/2019. He reported the absenteeism of the said officer (Dickson Kesebe) to his Seniors who confirmed that Dickson Kesebe’s duty station was supposed to be Meteorological department.

37. PW3 on 28/3/2019 at 3pm called the affected officers and gave them their transfer letters but Dickson Kesebe refused to take the transfer letter and did not give any reasons. When the motor vehicle which was transporting them and their personal effects to their new station arrived, Dickson Kesebe boarded and left with his luggage but declined to take his transfer letter.

38. PW4 & PW5 were arresting Officers of the Appellant.

39. PW6 Investigation Officer produced the Appellant’s letter of transfer Exh 2; the Transport Work Ticket Exh 3 of the vehicle availed for Officers on transfer. The appellant was among those on transfer to Kenya Metrological and he boarded the said vehicle. He produced the Weekly Duty Rooster- Exh 1 (a) for Week 1 & Exh 1(b) for Week 2. A signal was sent to the Appellant’s home on 10/4/2019 Exh 4 (a) and a reminder on 15/4/2019 Exh 4 (b) & Letter of deployment Exh 4 (c) Letter stopping Appellant’s salary of 16/4/2019 Exh 5 and on 8/5/2019 Letter of presumption of desertion Exh 6 after 30 days desertion was declared as provided by Section 94of National Police Service Act. A warrant was issued Exh 7 & Letter Gazetting the Appellant as deserted Exh 8. Police gazettement dated 4/12/2019 Exh 9 Letter by Appellant to Commandant Exh 10 (a) & Letter from Internal Affairs Unit Exh 10 (b).

40. The Appellant’s defence was an unsworn statement and he challenged the mode of transfer that he was not given/issued with a transfer letter as he produced a sample of a transfer letter he was earlier issued within April 2015 -DMFI. He could not desert duty from a station he had not been transferred to in the absence of a transfer letter. Secondly, the letter produced was for transfer of Dickson Kisebe and he was not the one. Thirdly, Section 7, 10 & 59 of the NPSA provide for mode of transfer which was not complied with.

41. The Court of Appeal in PON vs. Republic [2019] eKLR had this to say on direct evidence;“In its ordinary meaning, direct evidence would be that which directly links a person to a crime; that which is based on an eyewitness account, on personal knowledge or observation. The direct evidence sought in the matter the subject of this appeal is - who saw how the deceased meet her death. There is no such evidence hence the recourse to circumstantial evidence…”

42. Hon. G. V. Odunga J.(as he then was ) in Republic vs. Martin Kiio Ngei [2019] eKLR 52 stated that:“Proof in criminal cases can either be by direct evidence or circumstantial evidence. When a witness, such as an eye witness, asserts actual knowledge of a fact, that witness' testimony is direct evidence.”

43. In the instant appeal the evidence of PW1 PW2 PW3 & PW 6 is direct evidence of the Appellant’s desertion from duty and events culminating to the Appellant’s arrest and arraignment in Court and trial. This Court finds the evidence adduced by Prosecution witnesses coupled with the documents to be tangible and cogent evidence that logically and reasonably leads to one conclusion that the Appellant deserted duty.

44. The Prosecution proved redeployment of Appellant from Nairobi Water to Metrological Athi River by Exh 2 a list of all officers re deployed. In fact, the appellant boarded the vehicle to Athi River and reported to Metrological Athi River to PW1 on 29/3/2019 even if he was not issued with transfer letter, it is thereafter that he deserted duty as confirmed by Duty Roster of 2 weeks Exh 1a& b.The appellant denied desertion and questioned the process of re-deployment/ transfer but the Appellant’s whereabouts and contact either physically or by phone or through an emissary or any documents presented or letter written to Authority to establish his whereabouts and circumstances were not forthcoming and he missed in action (MIA) from 30/3/2019-30/2/2020 when he was arrested. In the absence of evidence of contact or communication or any report he made directly or sent emissary to report within the said statutory period amounted to desertion. It is noted that signals were sent to his home and there was no response. The appellant’s defense was denial of desertion through an unsworn statement. The Appellant’s claim’s veracity was not tested by cross examination and remained as an allegation and failed to cast doubt on the Prosecution case.Desertion is provided for in Section 94 (1)NPSA that provides;A police officer who absents himself self from duty without leave or just cause for a period exceeding ten days shall, unless the contrary is proved, be considered to have deserted from the Service.(2)Upon reasonable suspicion that any police officer has deserted the Service, any police officer may arrest that officer without a warrant, and shall thereupon take him before a magistrate having jurisdiction in the area in which such person deserted or was arrested.(3)Any police officer who deserts from the Service commits an offence and is liable on conviction to summary dismissal or imprisonment for a term not exceeding two years.

45. The Offence as prescribed in the Charge sheet /information under Section 94 NPSA was proved by the evaluation and analysis of the Trial Court evidence/record.

46. In Philip Nzaka Watu v. Republic [2016] e KLR, the Court of Appeal held:-“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.

47. The appellant submitted that there were contradictions and discrepancies in the Trial court proceedings and record at Pg 7 & 8 54-66 and went to the root of the case. I have evaluated the evidence and not found the said contradictions or discrepancies save to observe that even if the Appellant was aggrieved by redeployment of transfer and/or was not given letter of transfer and felt leaving Nairobi Water abruptly was unfair, he ought to have reported to the new station and from there pursued the unfair process if he felt so to its logical conclusion while in service at the new post. He did not.I find the totality of evidence of Trial Court’s record affirms commission of offence of desertion and the Appellant’s defense did not cast doubt of the Prosecution case. I uphold the conviction and sentence against the Appellant.

Disposition1. The judgment of Trial Court of 10/1/2023, conviction and sentence are upheld and appeal is dismissed.

JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 7/3/2024 (VIRTUAL & PHYSICAL CONFERENCE)M.W.MUIGAIJUDGEIn the presence of:Dickson Kiplagat Kesebe - The AppellantMs Kipruto - For The AppellantMr. Mwongera - For The RespondentGeoffrey/ Patrick - Court Assitant(s)(Judge Bereaved)JUDGMENT RELEASED TO REGISTRY ON 26/3/2024. M.W.MUIGAIJUDGE