[2020] KEHC 577 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG'A

CRIMINAL APPEAL NO. 40 OF 2019

BETWEEN

MARTIN MUTWERI MAINA.........................................................................................APPELLANT

AND

REPUBLIC.......................................................................................................................RESPONDENT

(An Appeal from the original conviction and sentence in the Senior Principal Magistrate's Court

at Kangema Cr. Case No. 411 of 2018 delivered by Hon. P. M Kiama (SPM) on 22nd March, 2019)

JUDGMENT

1. The Appellant, Martin Mutweri Maina was charged in count 1 with aiding a prisoner to escape contrary to Section 124(a)of thePenal Code. The particulars were that on the 13th day of May, 2018 at around 1030 hours at Kiria-ini Police Station, Kamacharia location in Mathioya Sub County within Murang'a County, aided Samuel Mwangi Maina to escape from the custody of No. 113058 police constable Tonny Mutua.

2. In count 2, he was charged with resisting arrest of police officers contrary to Section 253(b)of thePenal Code. The particulars were that on the 1st day of June, 2018 at around 1300 hours at Texas area, Kamacharia location in Mathioya Sub County within Murang'a County, resisted arrest of No. 113058 Police Constable John Mutua, No. 107896 Police Constable Emmanuel Kigen and No. 118015 Police Constable Gabriel Waicere, being police officers who at the time of the said resistance were acting in the due execution of their duties.

3. He pleaded not guilty to both offences. After a full trial, he was convicted of both offences and sentenced to serve four (4) years imprisonment in respect of count1 and one (1) year imprisonment in respect of count 2. Being dissatisfied by his conviction and sentence, the Appellant preferred the instant appeal to this court.

Grounds of Appeal

4. The Appellants raised eight (8) grounds of appeal in his Petition of Appeal filed on 26th July, 2019. However, during his oral submission, he summarized the same into the following two (2) grounds:

i.That the trial magistrate erred in law and fact by convicting him while relying on weak circumstantial evidence.

ii.That the trial magistrate erred in law and fact by convicting him on the basis of doubtful and inconsistent evidence.

Summary of Evidence

5. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced by the witnesses before the trial court so as to arrive at its own independent verdict whether or not to uphold the decision of the trial court. In doing so, this court is required to take into account the fact that it neither saw nor heard the witnesses. (See Okeno v Republic (1972) EA 32).

6. The Prosecution’s case can be summarized as follows: On Sunday 13th May, 2018 at around 10. 00am, PW1, PC John Mutua of Kiriaini Police Station was alone at the report office when the Appellant herein went to visit his brother one Samuel Maina Mwangi. The brother had been arrested the previous day at 6. 00 am within Kiriaini Township and booked for the offence of robbery with violence. He was awaiting arraignment in court on Monday. At first, PW1 refused to allow the Appellant to see his said brother as he had been instructed by his senior not to let anyone see him. The Appellant, whom PW1 knew as a teacher at Kiriaini Mixed Secondary School, pleaded with him to let him see the suspect. PW1 went to the cells and brought the said Samuel towards the counter.

7. The Appellant who was standing outside the counter spoke to the suspect in Kikuyu language which PW1 could not understand. Thereafter, the Appellant pretended to be shaking the suspect’s hand then the suspect stood on a generator which was near the report desk and the Appellant pulled him outside. PW1 tried to hold the suspect’s leg but he overpowered him and fled with the Appellant. PW1 raised alarm by whistling. PW2, APC Isaack Kirugiwho was in his office nearby and had heard the commotion inside the report office, rushed outside and saw the Appellant and the suspect running towards the exit gate of the police station while being pursued by PW1. PW1 told him that the Appellant had assisted the suspect to flee by pulling him out of the cells over the counter.

8. Other officers namely Sergeant Mutiso and PC Chepkwony also responded to the alarm and they tried to pursue the Appellant and the suspect but the two fled the scene. The incident was booked in OB No. 10 of 13th May, 2018. Thereafter, PW1 and Sergeant Mutiso went to up to Kamacharia to search for the suspects but did not find them. Thereafter, the police visited the Appellant’s home three other times in order to effect arrest but could not find them.

9. On 1st June, 2018 at around 1. 15 pm, PW1 received information that the Appellant had been spotted near his house. PW1 called PW3, PC Emmanuel Kigen and asked him to escort him there. PW3 called PW4, PC Gabriel Waiceri then the three of them proceeded to the Appellant’s home in Texas village within Kiria-ini Township while in civilian clothes. They found the Appellant seated outside his house eating. His mother was also around. The Appellant tried to escape upon seeing them but they managed to arrest him. He also refused to be handcuffed and so they had to use force in order to do so. The Appellant’s mother screamed until villagers arrived at the scene. They took him to Kiria-ini Police Station where he was locked up and later charged in court.

10. PW5, PC David Chepkwonyinvestigated the case although he was not present during the arrest. He denied ever receiving any report that the Appellant had been assaulted when being arrested. He however noted that the suspect whose escape was aided by the Appellant was still at large.

11. Upon being placed on his defence, the Appellant elected to give an unsworn statement in which he denied committing the offence. He stated that on 13th May, 2018, he went to visit his brother at Kiria-ini Police Station. While at the entry office, his brother came out and told him that he had been released. As such, they left together and when they reached at the main road, his bother told him that he would first go to Kiria-ini town so he went home. On 1st June, 2018 as he was taking lunch with his mother and sister, police went to his home and handcuffed him. They beat him up and said that he had aided a prisoner to escape. His mother screamed and neighbours came. The police took him to the station where he was beaten up.

12. In her sworn testimony, the Appellant’s mother who was marked as DW1, Jackline Gatara Mainastated on 1st June, 2018, the police went to her house and arrested her son then handcuffed him. In the process, the police hit her on the left lower eyelid. They also assaulted the Appellant.

Analysis and determination

13. The Appeal was dispensed with way of oral submissions presented through the Zoom video conferencing platform. The Appellant appeared in person whilst learned State Counsel, Ms. Gichuru appeared for the Respondent. Upon carefully re-evaluating the evidence on record and considering the parties’ respective submissions, I find that the only issue for determination is whether the prosecution proved its case against the Appellant beyond all reasonable doubt.

14. On ground one, the Appellant faulted PW1 for acting contrary to his senior’s instructions that he was not to allow anyone to visit the suspect and submitted that it was PW1 who sent his sister to tell him that he could go and visit his brother at the police station. He argued that PW1’s evidence that he assisted his brother to jump over a 6 to 7 feet counter was illogical. He pointed out that PW1 testified that PC Chepkwony was one of the officers who responded to the alarm he raised but PW5 said he was not at the police station when the incident occurred. He also questioned why PC Chepkwony and Sergeant Mutiso who allegedly helped PW1 pursue him and his brother were not called to testify.

15. As regards the second ground, the Appellant argued that PW1 said that when he raised alarm PW5 was the first one to respond yet PW5 said that he was not at the station at the time. In his view therefore, the case was a conspiracy against him.

16. In response, Ms. Gichuru for Respondent submitted that the evidence led by the five prosecution witnesses was corroborative. She argued that there was no evidence showing reasons for a possible frame up because there was no grudge between the Appellant and the police officers. In her view therefore, the case was proved beyond all reasonable doubt thus the Appellant’s conviction was safe and sentences were lawful. She urged that both the conviction and sentence be upheld.

17. In rebuttal, the Appellant informed the court that he was a laboratory technician and he has a family. He stated that during his incarceration, he has trained in carpentry and joinery. He has also formed a Christian union in prison. He therefore prays for a second chance to go and serve the society.

18. As regards count 1,Section 124(a)of the Penal Code provides that:

“Any person who- aids a prisoner in escaping or attempting to escape from lawful custody,is guilty of a felony and is liable to imprisonment for seven years.”

19. The first question that this court has to determine therefore is whether the Appellant’s brother, Samuel Maina Mwangi, was a prisoner in lawful custody of PW1. Black’s Law Dictionary, 10th Edition defines a prisoner as follows:

“1. Someone who is being confined in prison.

2. Someone who has been apprehended by a law-enforcement officer and is in custody, regardless of whether the person has yet to be put in prison; a person who is kept in prison as a legal punishment or who is kept there while awaiting trial as a criminal defendant.

3. Someone who is taken by force and kept somewhere.”

20. The evidence on record shows that the said suspect had been arrested on the morning of Saturday 12th May, 2018 and booked for the offence of robbery with violence vide OB No. 11 of 12th May, 2018. The suspect was then placed in the cells at Kiria-ini police station. Guided by the definition above, I find that the Appellant’s brother was indeed a prisoner in lawful custody awaiting arraignment in court.

21. Further, PW1’s evidence that he tried to pull the suspect’s leg when the Appellant assisted him to jump over the counter was corroborated by PW2 who confirmed that he heard a commotion in the reporting office. There was also consistent evidence from both PW1, PW2, PW3 and PW4 that the Appellant and the suspect fled from the police station and they had to give chase when PW1 whistled to raise alarm but did not manage to arrest them. Further, the fact that the Appellant went into hiding after the incident proves that he knew that he had committed an offence by helping his brother escape from police custody.

22. In the premises, I find that the prosecution proved beyond any reasonable doubt that the Appellant aided a prisoner’s escape from lawful custody at Kiria-ini Police Station. His conviction for the offence was therefore safe and is accordingly upheld.

23. On sentence, the punishment prescribed for this offence is imprisonment of up to a maximum of seven (7) years. The Appellant was sentenced to serve four (4) years imprisonment. Whereas this was proper, I find the sentence to be excessive and manifestly harsh for a first offender. I will therefore exercise my appellate jurisdiction to interfere with the said sentence. Accordingly, I set aside the sentence of four (4) years imprisonment and substitute it with two (2) years imprisonment.

24. As for count 2,Section 253(b)of thePenal Code provides that:

“Any person who –assaults, resists or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of that officeris guilty of a misdemeanour and is liable to imprisonment for five years”

25. There was consistent and corroborative evidence from PW1, PW3 and PW4 that when they went to arrest the Appellant on 1st June, 2018 after he had resurfaced, the Appellant attempted to flee and jump over a fence but they managed to subdue and arrest him. Upon being arrested, he refused to be handcuffed thus forcing them to use force so at to enable them do so.

26. The Appellant in his defence claims that the police assaulted him during his arrest. DW1 also claimed that the police took the Appellant to the police station and assaulted him but the same was not reported. This confirms PW5’s statement that no report was made to that effect. Further and in any event, Section 21(2)and(3)of theCriminal Procedure Code empowers police officers to use all means necessary to effect an arrest including use of reasonable force. The said sections provide thus:

“(2) If a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.”

21. As for the sentence, the penalty prescribed for this offence is five years imprisonment. The Appellant was sentenced to one (1) year imprisonment. In my view, that was reasonable and I cannot interfere with it.

Conclusion

22. In the upshot, the appeal against conviction lacks merit and is accordingly dismissed. The appeal against sentence partly succeeds. The four (4) years imprisonment in count 1 is set aside and substituted with two (2) year imprisonment from the date of sentencing which is 22nd March, 2019. The one (1) year imprisonment in count 2 is upheld accordingly. The sentences shall run consecutively. The Appellant may benefit from remission where appropriate. It is so ordered.

DATED AT MURANG’A THIS 3RD DAY OF DECEMBER,2020

G.W.NGENYE-MACHARIA

JUDGE

In the presence of:

1. Appellant in person.

2. Mr. Waweru for the Respondent.