[2023] KEHC 26259 (KLR)

Kipkorir v Republic (Criminal Appeal E018 of 2022) [2023] KEHC 26259 (KLR) (5 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26259 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Appeal E018 of 2022

F Gikonyo, J

December 5, 2023

Between

Nelson Kipkorir

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. M.I.G. Moranga (S.P.M) in Kilgoris SPMCR No. 187 of 2021 on 28th November 2022)

Judgment

1. This appeal is against the appellant’s conviction and sentence of 25 years imprisonment imposed on 09. 12. 2022 for the offence of attempted murder contrary to section 220(a) of the penal code.

2. The appellant filed a memorandum of appeal dated 13. 122. 2022. Subsequently, the appellant filed supplementary grounds of appeal dated 27. 01. 2023 which are as follows;i.That the trial magistrate erred in law and fact in failing to consider the fact that the evidence of the complainant was not corroborated by prosecution witnesses notably PW2, PW3, PW4, PW5 and PW6. ii.That the trial magistrate erred in law and fact by failing to appreciate that there was a nexus of evidence of a love triangle between the accused and the complainant over a girl known as Sheila, PW6, and therefore arrived at a wrong decision based on the said uncorroborated evidence.iii.That the trial magistrate erred in law and fact by failing to appreciate that the circumstantial evidence adduced by the prosecution evidence does not form a chain to link the appellant with the offence of attempted murder aforesaid.iv.That the trial magistrate erred in law and fact by failing to consider that the evidence tendered by prosecution witnesses was contradictory inconsistent and full of discrepancies that it shouldn’t have relied upon to convict the appellant.v.That the trial magistrate erred in law and fact by failing to critically analyze the evidence adduced in court and further disregarding the sworn evidence of the appellant thus arriving at a wrong decision.vi.That the sentence meted to the appellant is excessive and oppressive in the circumstances.vii.That the learned trial magistrate erred in law and fact by failing to appreciate that as a result of the court’s rejection of messages evidence adduced by PW7, there was no other concrete evidence to convict the appellant for a charge of attempted murder.viii.That the judgment was bad in law and mitigating circumstances of the case were not considered. It was biased and the evidence before the court was not analyzed.

Directions Of The Court 3. The appeal was canvassed by way of written submissions. Both parties filed submissions.

Appellant’s Submissions. 4. The appellant submitted that the culvert worker and PW1’s friend who handled the refiling of the gas were not called as prosecution witnesses yet he was an eye witness. The colleagues of PW1 were also not called as witnesses. PW3 gave contradictory and ambiguous evidence.

5. The appellant submitted that the trial magistrate erred in law and fact by failing to appreciate that there was no nexus of evidence of a love triangle between the accused, PW5 and PW1, and therefore the circumstantial evidence fails. PW5 testified that she had parted ways with the appellant 8 months before the incident. PW1 denied any intimate relationship with PW5. PW3 also denied any love triangle between the appellant, PW1 and PW5. Further PW7’s forensic examination report was rejected hence the trial court should not have relied on the same.

6. The appellant submitted that the motive of the assault was not proved hence the conviction for a charge of attempted murder and the sentence of 25 years meted on the appellant was not justified. The appellant relied on the cases of Mwita V Republic (Criminal case no. 10 of 2020) [2022] KEHC 3265 (KLR) (19th May 2022) Judgement), Ahamad Abolfathi Mohammed and Ano, Abang’a alia Onyango Vs Republic Cr. Appeal No. 32 of 1990.

7. The appellant submitted that the evidence of the prosecution witnesses does not form a chain to satisfy the conditions set since the same are contradictory, inconsistent and uncorroborated therein.

8. The appellant submitted that the trial court disregarded his evidence and failed to analyze and consider the same in her judgment.

9. The appellant submitted that the prosecution failed to prove this case beyond reasonable doubt.

10. The appellant submitted that the sentence meted to the appellant was excessive in the circumstance. He urged the court to reduce the same to five years if it finds that the trial court judgment was justified.

11. In conclusion, the appellant urged this court to find the trial court’s decision was bad in law and unjustified and prayed that the same be set aside and the appellant be set free.

The Respondent’s Submissions. 12. The respondent submitted that the appellant intended to murder the complainant. He armed himself with a rungu with a metallic head and sought after the complainant. He hit the complainant on his head four times with a lethal force causing him grievous harm on the head and fled the scene. The complainant was left by the appellant to his devices in that delicate condition caused by the appellant.

13. The respondent submitted that on the date of the incident, the complainant visited the home of PW5. PW5 prepared a meal and they dined after which the complainant borrowed her some money. PW5 borrowed money for the complainant from her mother. PW5 had terminated the relationship with the appellant and was ignoring his messages. PW1 was now hanging out with PW5 and her family. PW1’s testimony was corroborated by PW2 who rescued him after the assault. PW3 narrated that on the material date, the appellant passed her at a high speed holding a rungu/nut and later learned PW1 had been injured. PW4, PW5’s mother confirmed PW1 visited her home and borrowed money from her, which was before the brutal attack.

14. The appellant submitted that the appellant hit the complainant with a rungu/nut four times with such brutal force that the complaint sustained a skull fracture and lost speech for four months. No help was offered by the appellant to the complainant after the fact. The complainant was rescued by good Samaritans PW2 and others and the strenuous medical attention saved the complainant from death as a direct result of the appellant’s beatings.

15. The respondent submitted that the introduction of a plea of self-defense at this appeal amounts to an attempt to introduce fresh evidence where the appellant should have raised it in the trial court. The appellant admitted that the incident happened by the roadside but raised the defense of self-defense. The appellant never raised the defense at the trial. At the trial, he denied any altercation with the complainant and stated that he fled because he thought the officers were on an operation to arrest people not wearing masks.

16. The respondent submitted that the appellant’s defense was duly considered in the judgment and was found not to have shaken the prosecution’s overwhelming evidence.

17. The respondent submitted that the sentence imposed on the appellant was proper. The trial court arrived at the sentence by considering the victim impact statements, and the fact that the appellant was a first offender, and found that a deterrent sentence was necessary. The trial court proceeded to sentence the appellant to 25 years imprisonment.

18. The respondent submitted that there is no reason to interfere with the sentence. The appellant has not demonstrated to this court that the trial court erred in any way in determining the amount of sentence to impose on the appellant. The offence of attempted murder carries a maximum penalty of life but the appellant was sentenced to only 25 years in prison. This is a lenient sentence. Therefore, there is no justifiable reason to interfere with the sentence.

19. The respondent relied on the case of Emmanuel Kipkorir Langat V Republic [2022] eKLR

Analysis And Determination. Court’s Duty 20. As a first appellate court, will re-evaluate the evidence and make own conclusions. Except, bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs. Republic [1972] E.A 32

Issues 21. Two main issues arise from the appeal, the evidence adduced and the respective parties’ submissions, to wit: -i.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether the sentence was manifestly harsh and excessive

The Charge and Particulars 22. The appellant was charged with the offence of attempted murder contrary to section 220(a) of the Penal Code.

23. It was alleged that on 08. 06. 2020 at Emurua Dikirr Township in Trans Mara East Sub-county, the appellant attempted unlawfully to cause the death of Dominic Makabe by hitting him on the head using a bolt head maasai rungu.

Elements of Attempted Murder 24. The offence of attempted murder is established in Section 220 of the penal code as follows,“Section 220 -Attempt to murderAny person who—(a)attempts unlawfully to cause the death of another; or(b)with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.”

25. Attempt is defined by Section 388 of the Penal Code which states as follows: -(1)When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.(2)It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.

26. The main ingredients of an attempted offence are: i) intention to commit an offence, ii) steps taken ‘to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence’. These steps or acts must however go beyond mere preparation to commit a crime. The intention constitutes the criminal intent or mens rea of the offence; whilst, the actual steps towards execution of the intention is the actus reus.

27. Thus, in the present case, the main ingredients for attempted murder would be the intention to unlawfully cause the death of another and the actus reus would be the actual act that would likely lead to the death, but which subsequently fails.

28. See the case of Cheruiyot Vs Republic (1976- 1985) EA 47 that;…..an essential ingredient of an attempt to commit an offence is a specific intention to commit that offence. If the charge is one of attempted murder, the principal ingredient and the essence of the crime is the deliberate intent to murder. It must be shown that the accused person had a positive intention to unlawfully cause death and that intention must be manifested by an overt act.

29. See also Lord Goddard C.J. in R. vs. Whybrow (1951) 35 (1951) 35 CR APP REP, 141, on mens rea in respect of the offence of attempted murder: -“..... But if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime.”

30. Mens rea in attempted murder was also explained in Criminal Law, Butterworths (1998) 6th Edition on page 288 that, “Nothing less than an intention to kill will do.”

31. Intention to cause the death of a victim and execution of the intention will all be a question of fact.

32. The actus reus has been seen as the most challenging in attempted or inchoate offences. See the Court of Appeal in Abdi Ali Bare vs. Republic (2015) eKLR. Githinji, Mwilu J, and M’Inoti JJA stated thus: -“.......The more challenging question in a charge of attempted murder is the actus reus of the offence. Although a casual reading of Section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence. In the work quoted above by Smith & Hogan (Butterworths), the authors give the following scenario at page 291 to illustrate the distinction:‘D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger, and squeezes it. He has now certainly committed attempted murder...’In the present appeal, to prove attempted murder on the part of the appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with the commission of the murder. Whether there has been an attempt to commit an offence is a question of fact. The act alleged to constitute attempted murder, for example, must be sufficiently proximate to murder to be properly described as an attempt to commit murder. In CROSS & JOINES' INTRODUCTION TO CRIMINAL LAW, Butterworths, 8th Edition (1976), P. Asterley Jones and R. I. E. Card state as follows at page 354:'..[A]n act is sufficiently proximate when the accused has done the last act which it is necessary for him to do in order to commit the specific offence attempted...'The learned authors add that the court must answer the question of whether the acts by the accused person were immediately or merely remotely connected with the commission of the specific offence attempted based on common sense. Ultimately, therefore, the real question is whether the acts by the accused person amounted to mere preparation to commit murder or whether the accused had done more than mere preparatory acts.”

33. PW1-PC Dominic Makabe testified that on 08. 06. 2020 he was on his way to see PW4. He was riding his motorcycle. He gave a lift to Nichola Kwani. They went to the home of Nicholas where Nicholas’ mother informed him of a defilement case. He communicated to his colleagues. As he reached the police station, the appellant hit him on the head four times. He was taken to Tenwek Hospital where he was treated and a p3 form was filled. He was injured on the head and skull bone. He lost speech for 4 months.

34. PW1 came to learn from the appellant that he had assaulted him through a text message because of a girl named Sheila who was his girlfriend. the appellant had used his no. 0704189599.

35. PW2-APC Morgan Majisu testified that he was at Mau AP camp when a colleague PC Mwaniki informed him the appellant was about to assault PW1. he later learned that PW1 was assaulted and taken to Tenwek hospital. He observed that PW1 had been hit on the head.

36. PW3 Nicholas Kiprotich recalled getting a lift from PW1 after which he went back to work. While he was at his work site about 200 meters from the police station. He saw the appellant pass by at a high-speed motorcycle while holding a rungu. He later learned the appellant had injured PW1. He denied any knowledge of whether PW1 and the appellant were both dating his sister Alice.

37. Pw4- Alice Cherono Cheruiyot. She recalled that on 08. 06. 2020 PW1 had borrowed her money to go see his sick mother and also his wife was due to deliver. She did not have the money but promised to send him. When she got home at 6 p.m. she was informed the appellant had assaulted PW1. She denied any knowledge of whether PW1 and the appellant were friends to her daughter. She did not know the motive behind the attack.

38. PW5-PC Samuel Mwaniki of Angata police station. But previously from Emurua Dikkir police station. He testified that on 08. 06. 2020 he got information that there was a likely attack on his girlfriend. When he joined the complainant and PW2 they confirmed there was no threat. 5 minutes after arriving at the station they learned of an attack on the complainant. He rushed to the domcare health centre where he found the complainant was unconscious and bleeding profusely the doctor referred him to Abbosi Mission Hospital. he was then referred to Longisa and later to Tenwek Hospital. The complainant regained consciousness but was unable to talk. He texted that it was the appellant who attacked him while in was in the course of his duties. The brothers of the appellant were also said to have attacked him.

39. He identified the recovered message that the appellant sent him.

40. PW6 Sheila Cherotich a college student testified that on 08. 06. 2020 the complainant went to their home with PW2 and shared a meal before she left for the river with her sister Tabitha. the complainant went to search for her mother to borrow some money. later her mother reported that the complainant had been assaulted by the appellant. according to PW6, she ended her relationship with the appellant 8 months before she met the complainant. She had no idea that the appellant was not happy about it. She denied that she was dating the complainant.

41. PW7- Irene Melep a clinical officer at Trans Mara sub-county hospital. She testified that she saw the complainant on 19. 10. 2020 who had been discharged from Tenwek Hospital following an assault by two people known to him. She noted that a CT scan was done at Tenwek Hospital which showed a depressed fracture of the skull on the left parietal region of the head, slurred speech secondary to the trauma, and paraplegia on the left side of the chest. She noted that he had weakness in his right upper hand and wrist. the injuries were approximately 5 months old. She classified the injuries as maim hence a permanent injury. She produced a P3 form, discharge summary, clinical notes, and receipts from Tenwek Hospital as P Exh 1,2 and 3 respectively.

42. PW8 CPL Benjamin Mbito. he testified that on 08. 06. 2020 the complainant was attacked by the appellant while on his way from Nkurankurik town. He was rushed to the hospital by PC driver Masinde, PC Mwaniki, and PC Majisu Tenwek Hospital. After the complainant recovered he recorded a statement. The appellant went missing until 15. 03. 2021 when he surrendered himself to DCI offices at Emurua Dikirr. After investigations, they learned that PW1 and the appellant had a love affair with the same girlfriend. he forwarded the complainant’s phone to CID headquarters. It was established that the message received was from the appellant. He produced the extracts of the messages for 20. 07. 2021 telephone 0727663089 to 0790843631. The appellant referred to a message accusing before he was arrested by police following a surrender. The appellant was pleading with PW6 who asked her that she would be safe and that he was ready to surrender due to his love for her. He also wrote a message to PW1 through his number 0704 189599 in which he apologized to the complainant claiming he did not know he would injure him that seriously. The appellant in reply apologized saying it was anger and admitted it was a mistake. He admitted he had no grudge with the complainant. The mobile forensic examination dated 30. 07. 2021 produced a P Exh 4 and the exhibit memo as P Exh 5.

43. The appellant was placed on his defense.

44. DW1-the appellant testified that on 08. 06. 2020 he was working at barbart company as a security guard2. On the material date, he was at work at 7 am and left at 5 p.m. While on his way home he found people gathered as police arrested those not wearing masks. He learned that police officers had run away and one was injured. He later learned the injured officer was taken to hospital. 3 months later DW1 was transferred to Mulot construction site. When he came back for Christmas he learned that the police were looking for him. He did not take it seriously. Early March the company closed down. He went home. He met PC Morgan and Mwaniki arresting people not wearing masks. A week later police officers went to his home and hurled tear gas at him. When his father went to report he was warned that the appellant would be shot dead. He sought advice from the courts and was advised to go to DCI which he did. He denied knowledge that the complainant was also dating his girlfriend as alleged. He termed the evidence of PW1 and PW6’s family as false.

45. The medical evidence corroborates the evidence of the prosecution's witnesses that the complainant was hit by a rungu on the head. PW1 saw the person who assaulted him with a rungu. It was the appellant- a person known to him. He also stated the place where the incident took place- near the police station,

46. PW3 Nicholas Kiprotich corroborated the evidence by the complainant. He recalled getting a lift from PW1 after which he went back to work. While he was at his work site about 200 meters from the police station, he saw the appellant pass by on a high-speed motorcycle while holding a rungu. He later learned the appellant had injured PW1 with a rungu.

47. The evidence presented was largely circumstantial. The complainant was, however, able to identify the person who hit him with a rungu- the appellant. The evidence by PW3, the forensic examination of the messages, and the medical evidence connected the appellant to the said incident. There was no mistaken identity as the incident occurred during the day and the appellant was well known to the complainant and PW3.

48. The evidence by the appellant show he was at the scene at the material time except he says he thought the police were arresting people without masks.

49. From the evidence adduced, it can safely be concluded that the action by the Appellant was to cause the death of the victim of the attack. The choice of the weapon- a rungu with a metal nut- is an ominous intention. And hitting PW1 four times on the head with such rungu and with brutal force was intended to take the victim’s life. Other overt acts; after inflicting such heavy blow on the head of PW1, the appellant left him for dead and fled. The weapon used, the choice of the site to attack- the head- and the number of hits- four; does not evince a mere assault, but a conscious decision to fatally injure the victim. These facts are proof of intention to commit murder, and execution of the intention to murder PW1 was manifest in the acts of hitting him four times on the head with a dangerous weapon, and then leaving him for dead. It bears repeating that, the prosecution proved he intended to take away the life of PW1. Except, he did not fulfil his intention as the complainant did not die, although he was left with serious injuries and post-trauma effects.

50. The court therefore finds that, both the mens rea and the actus reus in respect of the offence of attempted murder were proved beyond reasonable doubt. Further, there was no possibility of mistaken identity as the Appellant, the victim, PW2, PW3, PW4, PW5, and PW6 were all known to each other.

Whether The Sentence Was Manifestly Harsh And Excessive 51. The Appellant was sentenced to serve 25 years imprisonment. The appellate court will only interfere with sentence where there is error of principle or the sentence is illegal.

52. The present offence attracts a maximum sentence of life imprisonment. See section 220 (b) of the Penal Code.

53. In sentencing the Appellant, the trial magistrate stated as follows: -The court has considered the offence committed. The seriousness of the injuries and the subsequent effects of the injuries to the complainant who it has been noted has slurred speech and can no longer enjoy use of his right hand. The court has also considered the fact that the effect of the injuries will further affect the complainant and by extension other member of his family who depend on him.A deterrent sentence is necessary. It is noted the accused is a first offender.After considering all the circumstances of the case the court sentences the accused to jail for a period of twenty (25) five years.

Right of Appeal 14 Days. 54. The trial court considered the fact that the Appellant was a first offender, his mitigation that his parents depended on him as well as his current age. He also considered the circumstances of both the victim and the appellant and noted that the offence required a stiff punishment to act as deterrent measure. In this respect, the court is satisfied that due consideration was given towards safeguarding the interests of the victim, the Appellant, and the community at large.

55. The offence of attempted murder Contrary to Section 220 of the Penal Code is a felony and attracts a maximum sentence of life imprisonment. The appellant was sentenced to serve 25 years imprisonment. That cannot be said to be excessive. I find no reason to disturb the sentence.

56. In the end I uphold the conviction and the sentence. The Appellant shall serve 25 years imprisonment and the Sentence shall run from 28. 11. 2022 being the date when he was convicted as the appellant was out on bond during the trial.

57. Orders accordingly.

58. Right of appeal explained.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 5TH DAY OF DECEMBER, 2023. F. GIKONYO M.JUDGEIn the Presence of:1. CA – Leken2. Koskei for Appellant (Nelson Kipkorir) - present3. Ondimu for DPP - present