[2022] KEHC 16268 (KLR)

Kimathi & another v Republic & another (Criminal Appeal E092 of 2022) [2022] KEHC 16268 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16268 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E092 of 2022

TW Cherere, J

December 15, 2022

Between

Francis Bundi Kimathi

1st Appellant

Francis Bundi Kimathi

2nd Appellant

and

Republic

1st Respondent

Republic

2nd Respondent

(Appeal against conviction and sentence in Meru Chief Magistrate’s Court Criminal Case No. 37 of 2019 by Hon. L. Juma (CM) on 27. 06. 2022)

Judgment

1. Francis Bundi Kimathi (Appellant) were charged in MAUA CRIMINAL CASE NO. 3918 of 2014 and convicted for one count of an attempt to administer poison with intent to harm and two counts of malicious damage to property.

Prosecution case 2. Jackson Kiogora Mboroki on 03rd January, 2019 noticed that his water taps were dry and upon checking found the pipes near Appellant’s gate blocked with some pieces of euphorbia tree that they consider to be poisonous. His evidence was confirmed by Solomon Mutainya. Henry Kiome, Regina Njeri, Amedo Kinyua and David Kiogora stated that water pipes to complainant’s home had been cut off and water directed to Appellant’s home.

3. Joseph Gitonga a government analyst examined 4 sticks submitted form Meru Police Station and found them to be that they contained Ingeno Mebutate a toxic substance to human beings if ingested or swallowed. The investigating officer PC Robert Gitonga tendered some damaged pipes as exhibits. In cross-examination, he stated that the photographs taken at the scene do not show from where the pipe starts and ends.

Defence case 4. In his sworn evidence, denied the offence and stated he has a dam accommodating 47,000 litres of water and would have had no reason to divert complainant’s water. In support thereof, he produced photographs of his farm and the dam.

5. In a judgment dated 27th June, 2022, Appellant was convicted and sentenced to serve 7 years in the first count and 5 years in each of the 2nd and 3rd counts. With the sentences running concurrently.

The appeal 6. Aggrieved by this decision, Appellants lodged the instant appeal. From the supplementary grounds filed on 14th September, 2022 and written submissions and further submission filed on 30th November, 2022 and 13th December, 2022 respectively, Appellant mainly stated that the prosecution case was not proved to the required standard.

Analysis and Determination 7. It is a duty to re-evaluate, re-analyze and re-consider the whole evidence in a fresh and exhaustive way before arriving at its own independent decision. (See Collins Akoyo Okemba & 2 Others vs Republic [2014] eKLR).

8. I have considered the appeal in the light of the evidence on record, the grounds of appeal and submissions by the Appellant and by the State.

9. There is therefore no doubt that Accused was charged and convicted on the basis of circumstantial evidence. As we know from Republic –vs- Taylor Weaver and Donovan (1928) 21 Cr. App. R. 20“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence, to say, it is circumstantial.”

10. In Abanga alias Onyango v Republic CA CR. Appeal NO. 32 of 1990 (UR), the Court of Appeal set out the principles which should be applied in order to test circumstantial evidence as follows:It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

11. From the evidence tendered in court in form of photographs, there was no evidence of any diversion of water from the complainant’s pipes into Appellant’s compound from which the court could draw an inference that Appellant must have been the one that diverted the water and inserted some poisonous pieces of wood in the pipes.

12. From the foregoing, I find that the evidence before the court was not cogently and firmly established to create circumstances of a definite tendency unerringly pointing towards guilt of the Appellant.

13. In considering whether the prosecution case was proved to the required standard, I have reflected on the English case of Woolmington vs. DPP 1935 A C 462 in Miller v Minister of Pensions {1947} 2 ALL ER 372 where the Court held at page 373:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”.

14. From the totality of evidence adduced by the prosecution, I find that the circumstances in this case, taken cumulatively do not form a chain so complete that there is no escape from the conclusion that within all human probability, the crimes were committed by the Appellant and none else.

15. In the end, I find that the appeal has merit. The conviction in each of the three counts is quashed and the sentences set aside. Unless otherwise lawfully held, it is ordered that Appellant be set at liberty.

DELIVERED AT MERU THIS 15th____ DAY OF December2022WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - PresentFor Appellant - Ms. Maore Advocate -For the State - Ms. Mwaniki (PPC)