[2017] KEHC 3082 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO.40 OF 2016

MICHAEL NASIAI SABATIA………………..……..APPLICANT

VERSUS

REPUBLIC …………………..……………… RESPONDENT

(An appeal against both conviction and sentence from the judgment of Hon Ong’ondo in Kakamega Criminal Case No.318 of 2014 dated 5th April, 2016)

JUDGMENT

1. The appellant was convicted of the offence of grievous harm contrary to section 234 of the Penal Code and sentenced to serve a life in prison. He was dissatisfied with the judgment of the lower court and has appealed against both conviction and sentence. The grounds of appeal are as set out in the petition of appeal.

Prosecution case:

2. The case for the prosecution was that on the 8th February 2014 at 2. 30 am the complainant Jairus Tera, PW1, was attending a funeral vigil at the home of a neighbour. There was a dance going on at the place. That the complainant noticed a child at the dance floor and asked the child to move away from the place. The appellant then confronted the complainant and asked him why he wanted to beat the child. The complainant told the appellant that he had no intention of assaulting the child. The complainant was then called by his employer. He left the funeral compound and walked towards the home of his employer. The appellant then followed him and hit him with a rungu on the mouth. Te complainant lost 11 of his teeth. The assault was witnessed by Silvanus PW2. The appellant ran away. He was chased by Silvanus, PW2. Silvanus got hold of him but the appellant started to throw punches at him. The appellant slipped and ran away. The complainant was taken to provincial clinic b y his employer. On 10th February 2014 the incident was reported at Mukhonje police patrol base. On the same day the appellant was arrested by members of the public and taken to a local Administration police camp and then to Mukhonje police patrol base. The complainant was issued with a p3 form. He was seen at Kambiri Health Centre. A clinical officer PW4 completed a p3 form and classified the degree of injury as grevious harm. The appellant was charged with the offence. The treatment notes, the p3 form and the teeth were produced in court as exhibits.

Defence case:

3. The appellant stated in his defence that he was working as a motor cycle taxi rider. That on the 10th February 2014 he was arrested by two policemen and taken to the Ap camp. He was then taken to Mukhonje police patrol base. He was charged. He denied that he assaulted the complainant on the 8th February 2014. He said that he did not meet the complainant on that day.

Grounds of appeal and submissions:

4. The appellant complained that the trial magistrate relied on evidence on identification without consideration that it was free from the possibility of error. That the doctor who initially treated the complainant did not testify in the case. That the evidence was characterized by inconsistencies and contradictions. That the trial magistrate did not consider that the prosecution failed to supply the appellant with the evidence to be relied on in the case. That the sentence imposed was harsh and the trial court failed to consider his mitigation.

Submissions by the prosecution:

5. The prosecution submitted that the appellant was at the time of assault identified by the complaint and Silvanus PW2. That the two witnesses knew the appellant before. That the clinical officer classified the degree of injury as grevious harm. That the appellant was supplied with copies of witness statements. That the mitigation by the appellant was considered. The prosecution urged the court to dismiss the appeal as the charges were proved beyond all reasonable doubt.

6. In his oral submission in court, the appellant did however admit that he was issued with copies of witness statements.

Duty of first appellate court:

7. The duty of a first appellate court was re-stated by the Court of Appeal in Kiilu and Another vs R (2005) 1 KLR 174 in the following words:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision in the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.” See also Okeno vs ~R (1972) EA 32.

Determination:

8. The appellant submitted that the evidence on identification was scanty. The evidence was that the complainant and the appellant first had an argument in the dancing area after which the appellant followed the complainant when he was on the way home and attacked him from behind with a rungu. Silvanus PW2 stated that he saw the complainant and the appellant involved in an argument in the dancing area. That after that the complainant left for home. That the appellant followed him from behind. He followed them. He then saw the appellant pushing the complainant. The complainant fell down. The appellant hit him with something like a rungu on the cheek. The appellant then ran away. He chased him and got hold of him. He started to take him back but the appellant started to throw punches at him and slipped away. He went back o the scene of the assault but found the complainant having been taken to hospital by his employer. In cross-examination the witness said that the assault took place about 20 metres from the funeral area.

9. The complainant’ evidence was that he was assaulted near the road. He did not state how far that place was from the funeral home. It was his evidence that nobody was around at the place where he was assaulted by the appellant. He stated that he lost consciousness upon being assaulted. He at the same time stated that after the assault, the appellant was chased by Silvanus who caught him.

10. The incident is said to have taken place at night at around 2. 30 am. Neither the complainant nor Silvanus stated how they were able to identify the assailant at the place of the assault. No issue was raised as to the lighting prevailing in the area at the time of the assault. The complainant stated that he was assaulted from behind. He did not state how he was able to identify the assailant if the said person attacked him from behind. If he lost consciousness upon being assaulted, he did not explain how he saw Silvanus chasing the assailant when he was in that state. He did not explain how he saw Silvanus there when he at the same time stated that there was nobody there at the time of the assault.

11. Silvanus says that he saw the appellant pushing the complainant. That the complainant fell down and the appellant attacked him with something like a rungu. However, the complainant in his evidence never stated that the appellant pushed him to the ground before attacking him with a rungu. This created doubt as to the credibility of the two witnesses.

12. Neither the complainant nor Silvanus said that they knew the appellant before the date of the assault. Silvanus said that after he caught up with the appellant, the appellant told him that he was called Michael. That means that he never knew the appellant before. Whether the two witnesses knew the appellant before or not they had the duty to prove to the court that their evidence was reliable and free from the possibility of error. The problem of convicting on evidence based on identification has been recognized in many cases. In Wamunga vs Republic (1989) KLR 424 the Court of Appeal had the following to say on the evidence of identification of an accused person:

“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of identification. The way to approach evidence of visual identification was succinctly stated by Lord Widgery C.J., in the well known case of R. vs Turnbull (1976) 3 All E.R. 549 at page 552 where he said:-

“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

14. If both the complainant and Silvanus did not know the appellant before there was no identification parade organized after the appellant was arrested to ascertain whether they could identify him. In the premises there is no certainty that the appellant is the person who assaulted the complainant on the material night. There is no evidence that the two witnesses had given the name of the appellant to the police before arrest.

15. In the foregoing I am not satisfied that the identification of the appellant was free from the possibility of error. The trial court did not address the issue of identification at the scene of the assault. The appeal should succeed on this ground.

16. The second ground of appeal is that the doctor who initially treated the complainant did not testify in the case. The appellant also argued that the clinical officer who completed the P3 form was not a dentist and that he was therefore not competent to complete the p3 form.

17. The complainant did not indicate where he received the initial treatment. He was however seen at Kambiri Health Centre on the 10th February 2014 by a clinical officer PW3. The treatment notes by the said clinical officer indicated that the complainant had been seen at a private hospital. The treatment notes indicate that the complainant at the time had stitches on both lower and upper lip with marked tenderness. That 6 upper teeth and 5 lower teeth were missing.

18. The medical personnel who attended to the complainant at the private clinic on the day of the assault, 7th February 2014, did not testify in the case. However the complainant was seen 3 days later at a public health centre when he was found with 11 missing teeth. The stitches on the lips were clearly visible at the time. The clinical officer PW3 who saw the complainant at the time was in a position to conclude that the teeth were recently removed. Though the person who initially saw the complainant at a private clinic did not testify, I am satisfied that the injuries were clearly visible three days later when he saw seen by the clinical officer PW3. The fact that the medical personnel who saw the complainant on the day of the assault did not testify was not fatal to the case.

19. The clinical officer who completed the p3 form is a trained medical personnel. There was no complexity in the diagnosis on whether the complainant’s teeth had been knocked off or not. The clinical officer was a competent witness to complete the P3 form.

20. Another ground of appeal was that the appellant was not supplied with copies of witness statements so that he could prepare for his case. However nowhere in the proceedings did the appellant apply to be supplied with the same. He should have raised the issue with the trial court. He cannot raise the issue at this stage.

21. The appellant argued that the sentence imposed on him was excessive. The maximum sentence for occasioning a person grievious harm is life imprisonment. The appellant was sentenced to serve life imprisonment.

22. In Shadrack Kipchoge Kogo vs Republic, Eldoret Criminal Appeal No.253 of 2003 (quoted in Arthur Muya Muriuki vs ~Republic (2015) eKLR), the Court of Appeal stated the following on principles of sentencing:-

“Sentencing is essentially an exercise of the trial court and for the court to interfere, it must be shown that in passing sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of these the sentence was so harsh and excessive that an error in principle must be inferred.”

23. In Ambani vs Republic (1990) KLR 161, the court stated that sentence imposed on an accused person must be commensurate to the moral blame worthiness of the offender and that it is not proper exercise of discretion in sentencing for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence.

24. It is also a general rule in sentencing that a maximum sentence should not be imposed on a first offender – see Otieno vs Republic (1983) KLR 295. Also that a maximum sentence is intended for the worst kind of offender.

In this case the appellant was a first offender. Though the offence committed was a serious one, the facts and the circumstances of the case did not warrant the maximum sentence. The sentence imposed was harsh and excessive.

25. In view of the foregoing the appeal succeeds on the grounds that the appellant was not identified as the person who assaulted the complainant. The appeal is allowed, conviction and sentence set aside and the appellant set at liberty unless lawfully held.

Delivered, dated and signed at Kakamega this 2nd day of October, 2017.

J. NJAGI

JUDGE

In the presence of:

N/A for Appellant

Ng’etich for Respondent/State

George Court clerk

Appellant …………….Present

14 days right of appeal