[2015] KEHC 4734 (KLR)
The appellate court found that the only direct evidence against the appellants was the complainant's testimony, which failed to specifically identify any of the three appellants as the persons who attacked him or caused him grievous harm. The complainant did not state in his evidence in chief that any of the...
Source-derived case information.
- Citation
- [2015] KEHC 4734 (KLR)
- Parties
- Appellant: Kevin Makokha; Appellant: Evans Ogando; Appellant: Robert Waswa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 21 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Grievous Harm, Conviction Safety, Evidence Evaluation, Lesser Offence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Makokha
Appellant
Evans Ogando
Appellant
Robert Waswa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced at trial was sufficient to sustain a conviction for causing grievous harm against the appellants.
- 2 Whether the trial court properly applied the law in convicting the appellants of a lesser offence under section 179(2) of the Criminal Procedure Code.
Ratio Decidendi
The appellate court found that the only direct evidence against the appellants was the complainant's testimony, which failed to specifically identify any of the three appellants as the persons who attacked him or caused him grievous harm. The complainant did not state in his evidence in chief that any of the appellants attacked him, nor did he elaborate on the manner of attack during cross-examination. There was no evidence to suggest that the appellants acted in concert with the unidentified fourth assailant. The court concluded that the evidence was insufficient to prove, beyond reasonable doubt, that the appellants committed the offence of causing grievous harm. Consequently, the...
Court Disposition
appeal_allowed
Orders
- The convictions against all three appellants are quashed.
- The sentences imposed on the appellants are set aside.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
HCRA NO. 21 OF 2014
KEVIN MAKOKHA……………….1ST APPELLANT
EVANS OGANDO………...…….2ND APPELLANT
ROBERT WASWA ……………. 3RD APPELLANT
VERSUS
REPUBLIC………………………….RESPONDENT
(An Appeal arising out of the Judgmentof C.M CR. Case No. 395 of 2014 delivered by D.O.OgollaCM on 25thJune 2014)
J U D G M E N T
Kevin Makokha (The 1st Appellant), Evans Ogando (The 2nd Appellant) and Robert Waswa (The 3rd Appellant) are each serving a sentence of 5 years imprisonment after having been convicted of the offence of Causing Grievous Harm contrary to section 234 of the Penal Code.
Although the trio had been charged alongside a 4th Accused person of attempted robbery with violence, the Trial Court did not find that the evidence established that crime. That notwithstanding, the Trial Court found that the evidence was sufficient to prove that the three Appellants had committed the lesser offence ofCausing Grievous Harm contrary to section 234 of the Penal Code and proceeded to convict under the provisions of section 179 (2) of the Criminal Procedure Code. That section reads:-
2. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.
At Trial, the Appellants challenged the sentence only. However, The State Counsel pointed out the conviction may have been unsafe and requested this court to re-evaluate the evidence.
The only direct evidence led by the Prosecution was the account of Edwin Onyango Bonya (The Complainant). He is a BodaBoda rider and all the three (3) Appellants are known to him. That on 22/2/2014, he carried the three persons as passengers for about 200 meters. That the 1st Appellant sat immediately behind him and then the 2nd Appellant and 3rd Appellant in that order.
After the 200 meters, the 3rd Appellant asked him for the key to the motor cycle but he did not oblige. He then described what followed:
“I then found someone standing on the way I slowed down and accused 1, 2, and 3 jumped off the motor cycle. Someone slapped me and I started to lose control. While I was struggling to escape the 4th person that I did not identify hit me on right eye with a stone. I managed to escape and go home. I reported the matter to my brother Vincent”
The further evidence is that the Complainant sustained injury on his lower jaws and left eye. He also lost some teeth.
The Complainant did not directly state how each of the 3 Appellants attacked him. Indeed in his evidence in chief he does not state that any of the 3 Appellants attacked him. He does not seem to have seen the person who slapped him. Although on cross examination by the 3rd Appellant, he said:-
“After we drove for a while you attacked and beat you (sic)”
the witness does not elaborate how he was attacked by the said assailant. In addition it is not suggested that the three acted in concert with the unknown 4th assailant who is said to have hit the complainant with a stone on the right eye. This Court is unable to reach the same conclusion as the Trial Court that there was prove, beyond any reasonable doubt, that the three attacked the Complainant and caused him grievous harm. The evidence is far too thin.
The upshot is that I do hereby quash the conviction against all the 3 Appellants and do hereby set aside the sentences imposed on them. The three shall be set free at once unless held for some other lawful reason.
DATED, SIGNED AND DELIVERED AT BUSIA THIS 12thDAY OF MAY 2015.
F. TUIYOTT
J U D G E
IN THE PRESENCE OF:
OILE………………………………..………………COURT CLERK
All Appellants present in person……….FOR THE APPELLANT
Owiti……….…..……….……………….FOR THE RESPONDENT