[2022] KEHC 3047 (KLR)

Kolokoi & 3 others v Republic (Criminal Appeal 17 of 2021) [2022] KEHC 3047 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3047 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Appeal 17 of 2021

WK Korir, J

May 12, 2022

Between

James Kolokoi

1st Appellant

Dennis Mwetich

2nd Appellant

Philip Pkemoi

3rd Appellant

Samwel Pkemoi

4th Appellant

and

Republic

Respondent

(Being an appeal from the Judgment of Hon. S. K. Mutai, SPM delivered on 7/10/2021 in Kapenguria SPMC Criminal Case No. 422 of 2020, R v James Kolokoi & 3 others)

Judgment

1. James Kolokoi, Denis Mwetich, Philip Pkemoi and Samwel Pkemoi, the respective 1st to 4th appellants were charged before the Senior Principal Magistrate’s Court at Kapenguria with the offence of grievous harm contrary to Section 234 of Penal Code. The particulars of the offence were that on 3rd April, 2020 at Chorok Village, Pokot South Sub-County within West Pokot County, they jointly with others not before court unlawfully did grievous harm to Samson Lotuw Korii by inflicting burns on the back of his body.

2. The appellants pleaded not guilty and the matter proceeded to hearing after which the appellants were found guilty. Upon conviction, each appellant was sentenced to seven years in prison.

3. Through the petition of appeal dated 18th October, 2021 and amended on 20th January, 2022, the appellants challenge both the conviction and sentence of the trial Court on the following grounds:i.That the trial Honourable Magistrate erred in law and fact by relying on evidence of prosecution witnesses which was so contradictory and full of discrepancies to be relied upon and to convict the Appellants;ii.That the trial Honourable Magistrate erred in law and fact by failing to consider the Appellants’ defence;iii.That the trial Honourable Magistrate erred in law and fact by failing to consider the appellants’ mitigations;iv.That the trial Honourable Magistrate erred in law and fact by imposing a harsh and severe sentence without the option of a fine.

4. The appellants consequently prayed that the appeal be allowed by the quashing of the conviction, setting aside of the sentence and setting them at liberty.

5. During the trial, the prosecution called six witnesses. The complainant, Samson Lotuw Korii, testified that on 3rd April, 2020 at about 5. 00pm he was in the company of one Jacob when he went to claim a debt of Kshs. 22,000/- from PW2 Jackson Nameri. He found Jackson inside a forest partaking alcohol with other people. Jackson gave him Kshs. 50/- after which the 2nd Appellant slapped him and he fell down. The 3rd Appellant then removed his clothes and the 4th Appellant took away his phone. He was beaten with sticks while the 1st Appellant hit him on the head with a club. He further testified that he lost consciousness and the 3rd Appellant lit a fire and burnt him on the back. Jackson then took him to his house and his brother later took him to hospital where he was admitted for one month. The complainant informed the trial Court that the appellants disappeared for three months before they were arrested. On cross-examination, he testified that even though he partook of alcohol, he was not drunk on the date of the offence.

6. PW2 testified that on 3rd April, 2020 at around 3. 00pm, he was going to check on his animals when he found people drinking chang’aa. No sooner had he joined the party than he heard people shouting “choma! choma!”. He went to the scene and found PW1 being burned using firewood. He also testified that he could not identify the perpetrators as the people ran away. He then took PW1 to his home and called his brother who took him to the hospital. On cross-examination, PW2 testified that PW1 had gone to look for him and that he never saw the appellants burning the complainant. He also testified that he was already drunk when the complainant arrived at the scene.

7. PW3 Simon Korii testified that on 4th April, 2020 he met the complainant as he was going to demand for payment of a debt from Jackson. At around 11. 00pm of the same day he received a call informing him that the complainant had been burnt and taken to the hospital. The following day, he went and found the complainant with burn injuries in Benjamin’s house. Together with the wife of the complainant, they took him to hospital. PW3 told the Court that he did not know who inflicted the burns on the complainant but was informed by the complainant that he had been set on fire by the appellants.

8. PW4 Police Constable Silas Lugare testified that he was instructed to investigate the incident on 4th April, 2020. He met the complainant who was covered in a leso. Upon uncovering the complainant, he saw that he had burns on his back and hands. He recorded statements from the complainant and his witnesses and referred him to Kapenguria County Referral Hospital where he was admitted for one month. He went with the witnesses to the scene and he was shown where there were some burnt leaves. He took pictures. He also took photographs of the complainant. He produced the photographs as exhibits. The complainant informed him that the appellants were the perpetrators of the act. On cross-examination, PW4 testified that he visited the scene with his colleagues and that he could not confirm whether the complainant was drunk at the time of the incident.

9. PW5 Korii Benjamin told the Court that on 4th April, 2020 he received a call from PW2 at around midnight informing him that PW1 had been burnt on his back. He alerted his brothers and together they proceeded to the home of PW2. Upon arrival, they found PW1 and escorted him to Kabichbich Hospital and later to his house. He saw that PW1 had burns on his hands and back. He also informed the village elder and later took the complainant to Kapenguria County Referral Hospital where he was admitted for one month. On cross-examination, he stated that he did not witness the incident.

10. PW6 Clement Kalesingor, a clinical officer at Kapenguria County Referral Hospital testified that on 7th April, 2020 he filled a P3 form for the complainant who had been admitted on 4th April, 2020. He examined him and established that he had burns on the neck and back of the scalp, a wound on the head, burns on the back, and bruises on the palms. He had second degree burns and he classified the degree of injury as maim. He produced the P3 form and discharge notes as exhibits. When cross-examined, PW6 told the Court that he did not know what happened to the patient after he examined him.

11. At the close of the prosecution case the trial Court found that each appellant had a case to answer. The 1st Appellant gave evidence as DW1 and told the Court that on 3rd April, 2020 he went to Kapkanyar forest where he found people taking chang’aa. When he arrived he was informed by one Paul Sian that the complainant who was selling the brew had quarreled with other people over debts. He then left for his home and was later arrested after three months. On cross-examination, he testified that he was not at the scene when the complainant was allegedly assaulted and that he was not in the company of the other appellants.

12. The 2nd Appellant who testified as DW2 told the Court that on 3rd April, 2020 he went home after erecting a house the whole day. Three days later, he heard news that someone had been burnt in the forest. He was later arrested in July 2020 and charged in court. He denied having any knowledge of the incident and stated that he was at home all along and did not flee the village.

13. The 3rd Appellant testified as DW3. He denied having any knowledge of the incident of 3rd April, 2020. He testified that he had been at home and did not flee prior to his arrest in June 2020. Similarly, the 4th Appellant who testified as DW4 denied having any knowledge of the assault on the complainant.

14. The appellants called DW5 Paul Toroitich Siyan as a witness. DW5 told the trial Court that on 3rd April, 2020 he was taking chang’aa at Chorok forest. He was joined by the 1st Appellant. He then saw a brawl erupt between the complainant and another person over a chang’aa debt. He went away with the 1st Appellant and left him at his home. The following day, he heard that someone had been burned. His evidence was that the other appellants were not at the chang’aa den. Further, that he knew the complainant as a chang’aa vendor and that the complainant had framed the appellants.

15. The appellants filed their submissions on 31st January, 2022. On the first ground of appeal, the appellants submitted that the prosecution witnesses gave contradictory evidence especially with regard to the length of time the complainant was admitted in hospital. They also submitted that the evidence of the complainant was not corroborated because PW2 was drunk while PW3 and PW4 were close relatives to the complainant.

16. On the second ground of appeal, the appellants submitted that despite their testimony and that of DW5 that the 2nd to 4th appellants were not at the scene of crime, the trial Magistrate nevertheless went ahead and convicted them. Further, that the trial Court failed to consider the evidence of DW5 to the effect that the 1st Appellant did not assault the complainant. It is therefore the appellants’ case that by failing to consider their evidence, the trial Court erred in law and fact.

17. As for the third and fourth grounds of appeal, the appellants submitted that the trial Court ought to have considered the fact that they were first offenders, remorseful, and neighbours to the complainant. They argued that the trial Magistrate was required to consider their mitigation as commanded by Section 216 of the Criminal Procedure Code prior to passing sentence. The appellants relied on the case of Issac Mwenda v Republic [2021] eKLR to urge this Court to find that the sentence of seven years’ imprisonment was harsh and if their appeal on conviction should fail, then they should be given an option of a fine.

18. The Respondent through submissions filed on 24th March, 2022 conceded the appeal on the grounds that there was no eye witness of the assault; that the complainant became unconscious and was therefore not in a position to identify his assailants; and that the failure to call one Jacob who was in the company of the complainant as a witness was fatal to the prosecution case.

19. After considering the amended petition of appeal and the submissions of the parties, I form the opinion that the issues for the determination of this Court are whether the prosecution proved its case against any or all the appellants and the propriety of the sentence imposed on the appellants by the trial Court.

20. The offence for which the appellants were charged and convicted is found in Section 234 of the Penal Code which provides as follows:“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

21. Section 4 of the Penal Code states that 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.”

22. For a conviction for the offence of grievous harm to be sustained, the prosecution is required to have proved that the complainant did indeed suffer grievous harm and that the injury was inflicted by the appellant.

23. The complainant testified that the 2nd Appellant slapped him and he fell down. His testimony was that the 3rd Appellant then removed his clothes. According the complainant, the 4th Appellant took away his phone while the 1st Appellant hit his head with a club. He further testified that he lost consciousness and the 3rd Appellant lit a fire and burned him on the back. PW2 testified that immediately he joined in the taking of chang’aa he heard people shouting “choma! choma!”. He went to the scene and found the complainant being set on fire using firewood.

24. PW3, PW4 and PW5 all testified that they saw burn injuries on the complainants’ hands and back. This evidence was corroborated by that of PW6 who produced a P3 form indicating that the complainant had burns on the neck and back of the scalp, a wound on the head, burns on the back, and bruises on the palms. He had second degree burns and he classified the degree of injury as maim. The nature or extent of injuries sustained by the complainant has not been challenged by the appellants. The complainant actually told the Court that one of his fingers remains crooked to date. It is therefore a fact and I so find that the injuries on the complainant qualified as grievous harm as defined by Section 4 of the Penal Code.

25. The next question is whether the prosecution proved that it was the appellants who caused grievous harm to the complainant. From the prosecution’s case, it is the complainant who identified the appellants as the perpetrators of the actions that caused him grievous harm. PW2 on his part testified that he did not know the perpetrators of the heinous act as they ran away as he approached the scene. The 1st Appellant and DW5 testified that they both left the scene of crime together and did not witness the events that resulted in the complainant sustaining injuries. The 1st Appellant and DW5 also supported the claim by the 2nd to 4th appellants that they were not at the scene at the time of the alleged offence.

26. In this case, the only evidence of identification of the assailants is that of the complainant. The evidence shows that the appellants were well-known to the complainant prior to the incident. They were neighbours, a fact that was corroborated by the evidence of PW2, PW3 and PW5. Indeed, PW3 testified that the complainant informed him immediately after the incident that it was the appellants who had injured him. The complainant and PW2 testified that the complainant was sober at the time of the incident. It is also observed that the incident occurred during daytime at about 5. 00pm. There was therefore sufficient light to enable the complainant identify his attackers. It cannot therefore be said that there was mistaken identity of the appellants by the complainant. The complainant was conscious until the time he was set on fire and clearly narrated the sequence of the events and the activities of each of the appellants.

27. There is the assertion that the failure to summon one Jacob who accompanied the complainant to the scene is fatal to the prosecution’s case. I have gone through the record of the trial Court and there is no mention of Jacob during the actual assault of the complainant. Indeed, Section 143 of the Evidence Act dispels the assertion that the failure to call Jacob is fatal to the prosecution case. The provision states that:“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

28. In Bukenya v Uganda [1972] E.A. 549, it was held that:“It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence that is inadequate and it appears that there were others witnesses who were not called, the court is entitled, under the general rule of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.”

29. In Republic v Cliff Macharia Njeri [2017] eKLR, the duty of the prosecutor was delineated thus:“The prosecution’s burden in regard to witnesses is to call witnesses who are sufficient to establish a fact. It is not necessary to call all the people who know something about the case. The issue is whether those called are sufficient to aid the court establish the truth, whether the evidence is favourable to the prosecution or not.”

30. In this case, even though Jacob would have corroborated the evidence of PW1, the failure to call him as a witness did not damage the prosecution case considering the clear identification of the appellants by the complainant. The prevailing circumstances were sufficient to enable the complainant identify his assailants at the beginning and during the ordeal. In this regard, I am inclined to believe and I so find that the evidence of identification by the complainant was sufficient.

31. I have considered the defence raised by each appellant before the trial Court and I come to the same conclusion with the trial Court that the testimony of the appellants and their witness was merely a ploy to cover their actions. Although the appellants alleged that the complainant framed them, none of them could state the reason as to why of all the people who were taking the illicit brew, they were the only ones fingered by the complainant. I therefore reject the defence put forward by each of the appellants and dismiss their appeal against conviction.

32. On the issue of sentence, the appellants argued and submitted that the sentence imposed on them by the trial Court is harsh and excessive. It was also their case that the trial Court failed to consider their mitigation. They therefore urged this Court to reduce the sentence and give them the option of fine.

33. The remit of an appellate court on sentence was stated by the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR as follows:“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v. Republic, Cr App No. 188 of 2000 this Court stated thus:It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

34. From the cited authority, it follows that an appellate court can only interfere with the sentencing discretion of a trial court where it is satisfied that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole the sentence is manifestly excessive. The offence for which the appellants were convicted attracts a maximum sentence of imprisonment for life. The sentence of seven years in prison passed upon the appellants is therefore legit.

35. The Sentencing Guidelines issued by the Kenyan Judiciary on 29th April, 2016 through Gazette Notice No. 2970 at Paragraph 7. 19 provides the factors to be taken into account in deciding whether to impose a custodial or non-custodial sentence as follows:“1. Gravity of the offence: In the absence of aggravating circumstances or any other circumstance that render a non-custodial sentence unsuitable, a sentence of imprisonment should be avoided in respect to misdemeanors.2. Criminal history of the offender: Taking into account the seriousness of the offence, first offenders should be considered for non-custodial sentences in the absence of other factors impinging on the suitability of such a sentence. Repeat offenders should be ordered to serve a non-custodial sentence only when it is evident that it is the most suitable sentence in the circumstance. Previous convictions should not be taken into consideration, unless they are either admitted or proved.3. Children in conflict with the law: Non-custodial orders should be imposed as a matter of course in the case of children in conflict with the law except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate and would be in the child’s best interest. Custodial orders should only be meted out as a measure of last resort.4. Character of the offender: Non-custodial sentences are best suited for offenders who are already remorseful and receptive to rehabilitative measures.5. Protection of the community: Where there is evidence that the offender is likely to pose a threat to the community; a non-custodial sentence may not be the most appropriate. The probation officer`s report should inform the court of such information.6. Offender’s responsibility to third parties: Where committing an offender to a custodial sentence is likely to unduly prejudice others, particularly vulnerable persons, who depend on him/her, a court should consider a noncustodial sentence if, in light of the gravity of the offence, no injustice will be occasioned. Information on the offender’s responsibility to third parties should be substantiated.”

36. In order to arrive at an appropriate sentence, a trial court is called upon to do a balancing act. No one factor is determinative of the correct sentence. In the case at hand, the gravity of the offence and the serious injuries sustained by the complainant ought to have been balanced against the fact that the appellants were first offenders and they had expressed their remorsefulness. It is observed that the complainant had fully recovered apart from the permanent crookedness of one finger. There was no indication that the appellants would cause any harm to the society and neither were they a threat to the complainant. In fact, they were on bond at the time of their conviction. Imprisonment for seven years was thus manifestly excessive in the circumstances of this case. The trial Court therefore failed to take into account the sentencing principles. In the circumstances, this Court is called upon to interfere with the sentence imposed by the trial Court.

37. Considering the fact that the appellants were in remand for a period of time before they were released on bond, and taking into account the period of imprisonment they had served from the date of their sentencing on 12th October, 2021, I allow the appeal on sentence and set aside the sentence of seven years in prison. The appellants will each serve a period of three years in prison from the date of their conviction and sentence by the trial Court.

38. The final orders of this Court are as follows:i.That the appeal by the 1st, 2nd, 3rd and 4th appellants against conviction is hereby dismissed; andii.That the appeal by the 1st, 2nd, 3rd and 4th appellants against sentence is allowed to the extent that the sentence of seven years in prison is set aside and substituted with a sentence of three years in prison from 12th October, 2021 being the date the appellants were sentenced by the trial Court.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12TH DAY OF MAY, 2022. W. KORIR,JUDGE OF THE HIGH COURT