[2024] KEHC 16356 (KLR)

Mohamed & 2 others v Republic (Criminal Appeal E035 of 2024) [2024] KEHC 16356 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16356 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Appeal E035 of 2024

JN Onyiego, J

December 18, 2024

Between

Abbas Abdi Mohamed

1st Appellant

Ahmed Abdi Hassan

2nd Appellant

Farah Mohamed Ali

3rd Appellant

and

Republic

Respondent

((Appeal from the conviction and sentence of Hon R. Aganyo PM delivered on 17. 09. 2023 in PM’s Court Criminal Case No. E312 of 2023 at Wajir Law Courts)

Judgment

1. The appellants were jointly charged with two counts of the offence of grievous harm contrary to Section 234 of the Penal Code as follows:

2. Count I: They were charged that on 27. 09. 2023 at Makaror in Wajir East Sub - County within Wajir County jointly with others not before court unlawfully did grievous harm to Siyad Mohamed Abdi.

3. Count ii; They were charged that On 27. 09. 2023 At Makoror in Wajir East Sub-County within Wajir County jointly with others not before court they unlawfully did grievous harm to Osman Hassan Ahmed.

4. The trial magistrate found the appellants guilty of the offence as charged, convicted them and sentenced them to serve six (6) years imprisonment.

5. Aggrieved by both the conviction and sentence, they lodged the instant appeal on the following grounds that:i.The learned magistrate erred in law and in fact by holding that just because the complainants were admitted in hospital for treatment they suffered grievous harm.ii.The learned magistrate erred in law and in fact by failing to note that the complainants did not produce any discharge summaries and/or any evidence of their admission in hospital.iii.The learned magistrate erred in law and in fact by holding that the failure by the prosecution to supply the court and/or the appellants with the CT scan and X-ray was not fatal to proving the charges as the same is mandatory in proving grievous harm.iv.The learned magistrate erred in law and in fact by failing to note that it was crucial for the prosecution to produce before the court the weapons that were allegedly used to attack the complainants.v.The learned magistrate erred in law and in fact by holding that the mere reason that the prosecution witnesses identified the appellants in court was evidence that the appellants had committed the offence despite their being evidence that the said prosecution witnesses knew the appellants by way of them belonging to the same clan hence the identification of the appellants by their names.vi.The learned magistrate erred in law and in fact by holding that PW5 had positively identified the appellants despite PW5 having only stated in his testimony that he had dropped 13 male passengers at Makoror farm.vii.The learned magistrate erred in law and in fact by failing to note the inconsistencies and doubt in the testimony of PW1 in relation to the identification of the 1st appellant as the person who attacked him.viii.The learned magistrate erred in law and in fact by dismissing the appellants’ defence despite the same being cogent.ix.The learned magistrate erred in law and in fact by holding that the appellants failed to prove to the Honourable Court their alibi defence hence shifting the burden of proof to the appellants.x.The learned magistrate erred in law and in fact by holding the evidence of PW5 was enough to dismiss the appellant’s alibi despite failing to note that PW5 only stated to the court that he had carried 13 male passengers and dropped them at Makoror.xi.The learned magistrate erred in law and in fact by finding that the prosecution had proved its case beyond reasonable doubt.

6. Reasons wherefore the appellants prayed for the judgment delivered on 17. 09. 2024 to be set aside in its entirety and they be set at liberty.

7. The appellants submitted that what spoke volumes as to the nature of the injuries suffered by the victims was the fact that both victims were admitted in hospital for days for treatment and management of their injuries. The trial magistrate was faulted for holding the view that the production of the P3 Form and the treatment notes was enough to prove that the complainants suffered grievous harm. The appellants relied on the case of Pius Mutua Mbuvi vs Republic [2021] eKLR where the court held that …the exclusion of some medical reports could be by design and point towards deliberate untruth with a view to concealing what exactly happened on the material day of the offence.

8. That the trial court erred by convicting noting that there was an underlying problem between the families that allegedly led to the occurrence of the incident herein. That the identification of the appellants as the perpetrators of the offence could well have resulted from the animosity and enmity that existed between the parties owing to the land ownership dispute. In their view, it was unjust and unfair for the trial magistrate to hold that since the parties hailed from the same family, there could be no wrongful identification hence an unfair conclusion against the appellants.

9. It was contended that the finding by the trial court was contradictory in nature for the reason that PW5 stated that he simply dropped the appellants at Makoror and at no point did he witness the incident. At the same time, the trial court noted that PW5 indeed saw the appellants at the scene of the incident. In the end, the appellants urged that the prosecution did not prove its case to the required standard and as such, the appeal be allowed and the appellant be set at liberty.

10. The respondent submitted that from the evidence adduced, it was clear that the appellants were among the group of people who attacked PW1 and PW2. That the medical officer who testified and further produced the P3 classified the injuries as grievous harm. That all the ingredients of the offence charged herein were proved against the appellants. On sentence, it was submitted that the same was not only legal but also appropriate. To that end, this court was urged to dismiss the appeal and uphold the finding of the trial court.

11. Having considered the petition of appeal, the appellants and respondent’s written submissions together with the trial court’s proceedings, I find that the main issues for determination as follows: -i.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether the sentence imposed on the appellants is manifestly excessive in the circumstances.

12. It is settled law that a first appellate court must evaluate afresh the evidence before the trial court to arrive at its independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. Further, it is not the function of a first appellate court merely to scrutinize the evidence to see if there is some evidence to support the lower court’s finding and conclusion; it must make its findings and draw its 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 Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123), Peters vs Sunday Post [1958] EA 424).

13. PW1, Siyad Mohamed Abdi, a resident of Bula Jogoo, testified that on 27. 09. 2023 at around 0740 hrs, he went to Makoror area at a family group owned shamba where they were doing subdivision into plots. After a few minutes, a Toyota succeed, KDD 784K came with several people who were armed with rungus and pangas and attacked him. He recalled that the 1st appellant, Mr. Abbas Abdirahman, a person well known to him, came and attacked him with a panga which cracked his skull. The other persons hit him with the rungus on the shoulders until he fell unconscious.

14. That he regained consciousness at the Wajir County referral hospital but thereafter, he was referred to Nairobi west hospital where he stayed for eight days. He had a head CT scan done and further, his head operated on. He stated that till now, he has not fully recovered as he continues to visit the hospital. On cross examination, the appellant estimated the people who alighted from the Toyota succeed about 14 people. He further stated that he has a title to the property.

15. PW2, Osman Hassan testified that on the material day, they were at the shamba as they were partitioning the same and thereafter fixing the beacons. It was his evidence that the farm is owned by a group of family members and neighbours. While there, two vehicles arrived carrying five and nine people respectively and the said people started attacking them. They attacked Siyad by hitting him with a rungu and panga and upon intervening, they also landed on him by assaulting him using the same weapons. He further stated that their attackers were people well known to them as they came from the same clan. Upon being rescued, he was rushed to Wajir Hospital where he received medical treatment.

16. PW3, Mohamed Abdi Gedi, chairman of the Makoror New Farm Group testified that on 27. 09. 2023 at around 7. 40 a.m., he was at a shamba called Makoror New Farm group. That he was amongst a group of about 38 people as they were demarcating boundaries and thereby fixing beacons to the respective owners. While there, four people in company of Abbas while holding a rungu and panga attacked them. Almost a half an hour later, another motor vehicle arrived and from wherein nine people alighted. The said nine started removing the beacons after which they embarked on assaulting Siyad. It was his testimony that the 1st appellant was the first to hit Siyad on the head and thereafter, the 2nd and 3rd appellants joined him in beating Siyad.

17. That at that point, he left to help Siyad but before he could reach to him, the very people confronted him. Osman who was all the while following PW3 was instead attacked and equally beaten by the appellants herein. It was his case that the appellants are people who are well known to him as they came from the same clan. On cross examination, he stated that in as much as three people were injured in the incident, one of the injured persons reached an out of court settlement with his attackers.

18. PW4, Siyad Sanay Hassan, a clinical officer stated that on the material day, he received a client by the name of Siyad Mohamed Abdi, a 23-year-old male with a history of assault by a group of people known to him at Makoror sub location. He further stated that Siyad was bleeding with a deep wound on the scalp while vomiting and suffering from dizziness. A diagnosis of deep cut wound with fracture was made and so, an emergency treatment was given to him to arrest the bleeding. Additionally, x-ray and CT scan of the brain was done to ascertain the extent of the injury after which, he was admitted to the ward.

19. Upon admission, the patient was reviewed and it was found that due to his condition, he had to be referred to Nairobi following a depressed skull fracture. He confirmed filling the P3 Form and further stated that the general observation being that of bleeding from the head and being restless and irritable; examination of the head and neck was active bleeding from the deep cut wound with obvious depressed skull fracture.

20. He further stated that, there was also a swelling generally at the back which was tender. The time frame within which the injuries were inflicted was about 2 hours prior to the hospital visit. It was his evidence that the injuries were inflicted by a sharp object i.e a panga and thereby classifying the injuries as grievous harm. He produced the P3 Form, treatment notes, referral letter as MFI 1(a) to exhibit 1(a), referral letter, MFI (b) to exhibit 1(b) and P3 Form MFI 1(c) as Pex 1(c).

21. He went further to state that on the same day, they received Osman Hassan Ahmed, a 61-year-old male who also had a history of assault by people known to him. He sustained multiple injuries to his head and left shoulder region. On examination, there was profuse bleeding from a cut wound that was deep. His blood pressure was low and the heart beat increased.

22. That there was multiple deep cut wounds on the temporal forehead with profuse bleeding, mild swelling on the left shoulder region, a diagnosis of multiple deep cut wounds secondary to assault was made and immediate management was commenced. According to him, the approximate time of injury was two hours prior to the examination. In his opinion, a sharp object was used to inflict the injuries hence classified the same as grievous harm. He produced the P3 Form MFi2 (a) as Pex 2a and treatment notes MFI 2(b) as Pex 2b.

23. PW5, Mohamed Adan stated that the motor vehicle registration no. KDD 784K silver Toyota Succeed belongs to him and that on 27. 09. 2023, he carried passengers from Lagbogol to Makoror. According to him, he carried about eleven people although eight or nine people alighted at Makoror. He went further to state that, when he arrived in town, he met people who kept asking him why he had ferried the attackers. He stated that some of the people he had ferried to Makoror included: Jimale, Dugow, Ahmed Abdi, Farah Muhumed and Farah Mohamed Ali, the 3rd appellant, Ahmed Abdi Hassan and 1st appellant Abbas Abdi Mohamed.

24. PW6, No. 240517 Inspector Kenga, the investigating and arresting officer testified that he received a call from the sub county police commander, Mr. Aliyow informing him that there was a fight at Makoror and so, together with the OCPD and the OCS, they proceeded to the scene. Upon reaching there, they found several people and amidst them one Hussein Barre who was fluent in Swahili who told them that the land where they stood on had ownership dispute but the same had allegedly been resolved in the year 2021. That the rightful owners had met to sub divide the land and thereafter fix beacons when a motor vehicle registration no. KDD 784K silver Toyota Succeed approached, stopped and nine people alighted from it and joined others who were already on the ground.

25. He reiterated the evidence of the other prosecution witnesses and further stated that he did not recover any weapon that was allegedly used in the incident. He recorded statements from the witnesses and thereafter pressed charges against the appellants herein.

26. According to him, three other people were also treated and thereafter discharged from the hospital. That those injured were issued P3 forms which were filled by the doctor and the classification of injuries sustained by the complainants was described as grievous harm. On cross examination, he stated that the attack was planned since people were ferried as others waited at the scene to join in attacking the complainants.

27. DW1, Abbas Mohamed upon being placed on his defence issued a sworn statement wherein he stated that on the fateful day, he was at Makoror doing odd jobs and therefore, the alleged motor vehicle registration number KDD 946K did not at any point carry him. That upon returning from work, he noticed so many people at Abdi Abdullahi’s place and on asking, he was told that Ali Ahmed Dugow had been injured at Makoror. While there, three officers in company of Hussein Barre arrested him. He denied injuring the complainant but also conceded to trying a msalaha of Kes. 1,000,000/- to settle this case. On re-examination, he stated that Ali Ahmed Dugow was not a complainant in the case as he settled the matter with him.

28. DW2, Ahmed Abdi Hussein in his sworn statement denied committing the offence. He claimed that on the material day, he was at Boji area where he had spent the night. Thereafter, someone whom he previously worked for called him and so he travelled to Wajir, Makoror village where he was to go work. That he boarded a vehicle in which, there were other passengers such as Jimale Dugow.

29. That upon reaching Surai stage, he alighted with other people while others remained in the vehicle. At 4. 00 p.m., two people brought a sick person and the said patient was placed in a dash where he was working but after that, he was arrested. That the patient was by the name Ali Ahmed Dugow who had sustained a head injury from an alleged land dispute. According to him, Hussein Barre is the one who pointed him to the police so that he could be arrested. He however claimed that the elders had settled the matter and therefore urged the court to release him as he had suffered enough.

30. DW3, Farah Ahmed Ali in his sworn statement stated that on the material day, he had travelled to Lagbogol to go sell his camel at the market. That he travelled in a white taxi and therein, were other passengers in as much as he could not remember their names. While at the market, he got information that their family members had differed and there were casualties. He thus decided to travel to the scene where he found the injured being rushed to the hospital and so, he also left to go pick his money from the market.

31. That Jimale and Dekow Elmi took Ali Ahmed Dugow to the hospital using a vehicle that he could not remember. He stated that after taking his cash, he went to visit the sick. He was surprised when Hussein Barre arrived with the police and had him arrested. According to him, this matter had been settled by the wazees whereupon they paid Kes. 400,000/- and thereafter Kes. 600,000/-.

32. He urged the court to set him at liberty. On cross examination, he stated that in as much as his co-appellants are people known to him, he did not commit the offence herein. On maslaha settlement, he stated that they only entered an agreement since the complainant had alleged that they assaulted them. Further, that he was not aware of the details as the wazees are the ones who were involved in the same.

33. DW4, Jimale Dugow Hefow testified that he left Lagbogol for Wajir when he heard from his neighbours that there was a dispute with another family who were fixing beacons on the said disputed land. That he used Mohamed Ali’s taxi to Surai stage where he alighted and thereafter walked to the suit land where he found five other wazees. While there, a fight ensued and so, people started throwing stones at each other and in the process, Ali Dugow got injured. That Hussein Barres’s team were the ones fixing beacons as people from his side removed them. According to him, he was there all through the incident and that he did not see any of the appellants herein.

34. He thus helped Dekow Muhhtar in taking Abdi Hassan to the hospital as he was injured. It was his case that Hussein Barre is the one who directed the police to arrest the appellants. On cross examination, he stated that he went to the farm for the reason that the suit land is near a well that belongs to his father so he went to check if all was well. That in as much as he travelled with the appellants, the 2nd appellant alighted at Surai stage while the 3rd appellant alighted at ADC market. He proceeded to state that he knew where all the appellants were going noting that they are related. To him, the complainants in as much as they were there, he did not see them being assaulted.

35. DW5, Emli Dekow Muktar in his sworn statement stated that he witnessed the events of the day in question. In his statement, he was preparing to go for work when he heard noise from the neighbouring disputed wells and so, he came out to go see what was happening. On reaching there, he found two disputing groups one by Ali Ahmed Dugow and the other by Jimale Dugow Hefow. He stated that he took the injured, Mr. Ali to the hospital where he received first aid and thereafter got released. It was his evidence that only Ali was injured in the incident and not the appellants. The appellants thus closed their case.

36. The appellants were charged with the offence of grievous harm contrary to Section 234 of the Penal Code. To secure a conviction under the offence of grievous harm, the prosecution had to prove the following essential elements beyond reasonable doubt: -i.The victim sustained grievous harm.ii.That the harm was caused unlawfully.iii.That the accused caused or participated in causing the grievous harm.

37. Section 4 of the Penal Code Chapter 63 Laws of Kenya reads as follows:-“Grievous harm means any harm which amounts to maim or dangerous harm or seriously or permanently injures health, or which is likely so to injure health, or which extends to the permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."

38. The evidence presented in support of a charge is critical. In this case, PW1 stated that he sustained grievous harm after he was attacked by the 1st appellant on the head while using panga which cracked his head. That others in his company also hit his shoulders hence ended up fainting. PW2 also in his testimony narrated how the appellants attacked PW1 and in the process of intervening, the aggressors turned on him and attacked him too. According to him, all the appellants people well known to him assaulted him.

39. He stated that the 1st appellant hit him on the middle loop of the head, 2nd appellant hit him on the forehead while the 3rd appellant hit and cut him on the left side of the head. The testimonies of the complainants were corroborated by the testimonies of PW4 who confirmed that indeed, the complainants suffered injuries that he classified as grievous harm.

40. He described the injuries suffered by PW1 as a wound on the scalp leading to him vomiting and suffering dizziness. A diagnosis of deep cut wound with fracture and bleeding from the deep cut wound with obvious depressed skull fracture were made; On the other hand, PW2, suffered multiple deep cut wounds on the temporal forehead with profuse bleeding, mild swelling on the left shoulder region and so, a diagnosis of multiple deep cut wounds secondary to assault was made. He produced as exhibit the P3 Forms and the treatment notes. In the same breadth, investigations by PW6 also corroborated the allegations by the complainants herein on how they sustained their injuries.

41. Accordingly, I am convinced that there was sufficient evidence to prove that the assault occasioned on PW1 and PW2 resulted in grievous bodily harm within the meaning of Section 4 of the Penal Code. This was clearly established by the p3 form. The allegation that other medical reports were not produced to prove the offence of causing grievous harm is not sustainable. The medical officer stated clearly the treatment received by the complainants and the steps taken in establishing the extent of the injury. Failure to produce the x-rays in my opinion is not fatal.

42. The second element is whether harm occasioned on the complainant victim was caused unlawfully, meaning that the same was without legal justification. On this aspect, PW1, PW2, and PW3 were consistent with their testimonies that PW1 and PW2 were participating in an exercise where the suit land was being partitioned and thereafter beacons being fixed.

43. Upon carrying out investigations, PW6 stated that there existed a dispute between the families but the same was resolved in the year 2021. That when the complainants and his team embarked on the process of partitioning the land, the appellants together with others attacked the complainants. Moreover, PW5 who ferried the appellants to the suit land as others waited was a clear indication that the attack herein was not only planned but was also effectively executed. The act was therefore unlawful.

44. On the issue of identification, PW1 and PW2 narrated how while at the shamba, the appellants assaulted them. PW1 stated that as they were subdividing the land and marking the beacons, motor vehicle KDD 784K Toyota succeed arrived and dropped people who alighted with rungus and pangas. That he was hit by the 1st appellant on the head from behind and when he turned, he saw him. That others then joined the 1st appellant in assaulting him till he fainted and regained recovery while at the hospital. PW2 also stated that upon seeing PW1 being assaulted, he intervened and the same irked the wrath of the appellants thereby descending on him with rungus and pangas.

45. The above notwithstanding, the dispute herein had been existing for some time between the parties and was only solved in the year 2021. In the same breadth, all the parties involved came from the same clan and therefore, were people well known to one another. The offence took place during the day hence the conditions for identification were favourable. The appellants were people from the same area hence no element of mistaken identity.

46. Of importance to note is the fact that the appellants conceded to have been in an attempt to have this matter settled out of court to no success. The only question that lingers in my mind is for what reason would the appellants involve wazees to help in settling the matter if at all they were not involved in perpetrating the same? In the same breadth, DW1 stated that maslaha is entered only when people have disagreed. The question thus ought to be answered is what sort of disagreement existed between the parties herein that deserved a maslaha to be entered?

47. Clearly, from my analysis of the evidence herein, it is clear in my view that the prosecution evidence was not only cogent but also well corroborated as opposed to that of the appellants. It is my finding therefore that the prosecution’s evidence was watertight on the identification of the appellants as the aggressors of the complainants.

48. Moreover, I am also satisfied with the trial court’s finding that the appellants’ defence did not materially controvert the prosecution’s evidence and that the defences were a bare denial. The alibi defence was merely meant to evade liability.

49. On the aspect of sentencing, the court in Wanjema vs Republic [1971] EA 493, stated as follows regarding interference with sentencing:“The Appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on a wrong principle, or the sentence is manifestly excessive in the circumstances of the case.”

50. Section 234 the Penal code provides that Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

51. In as much as this ground was not submitted on, I note that the appellants had submitted that the sentence by the trial court be set aside. It is my view in the given circumstances that the sentence meted by the trial court was neither illegal nor unlawful. Sentencing is a question of fact and is always at the trial court's discretion. Something must be on record to show that the trial court erred in exercising its discretion in meting out the sentence. In this case, it was not demonstrated that in meting out the 6-year term imprisonment, the court erred.

52. Consequently, this court finds that the appeal before it lacks merit and the same is hereby dismissed in its entirety and the conviction and sentence by the trial court are upheld.

Dated, signed and delivered virtually this 18th day of December 2024J. N. ONYIEGOJUDGE