[2022] KEHC 10499 (KLR)

Mutisya v Republic (Criminal Appeal 40 of 2019) [2022] KEHC 10499 (KLR) (9 February 2022) (Judgment)

Neutral citation: [2022] KEHC 10499 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 40 of 2019

SN Mutuku, J

February 9, 2022

Between

Johnson Musyoki Mutisya

Appellant

and

Republic

Respondent

(Appeal from the original sentence in Criminal Case No. 150 OF 2017 at the Chief Magistrate’s Court – Kajiado Law Courts by Hon.M. Kasera – P.M)

Judgment

1. Johnson Musyoki Mutisya, the Appellant, was charged in the lower court with the offence of wounding with intent to cause grievous harm contrary to Section 231(a) of thePenal Code. The particulars of the offence are that on November 26, 2016 at about 11:30am at Majengo Estate in Kajiado Central sub-county he unlawfully wounded Penina Mugure Nganga with intent to maim her.

2. He denied committing this offence. The trial proceeded to full conclusion leading to a finding of guilty, conviction and a life sentence. He is aggrieved by the conviction and the sentence and has come to this court on appeal.

3. He has relied on two sets of grounds of appeal. The first set is dated July 24, 2019. I have summarized the first set of grounds of appeal as follows:(i)That the trial Magistrate relied on contradictory evidence.(ii)That the prosecution case was not proved beyond reasonable doubt.(iii)That crucial witnesses were not summoned to testify.(iv)That the trial Magistrate shifted the burden of proof to the Appellant.(v)That the investigations were poorly conducted.(vi)That the trial magistrate failed to consider the Appellant’s defence.

4. The second set of grounds of appeal are found in the Appellant Submissions filed in court on November 23, 2021. I have summarized these grounds as follows:(i)That the sentence is harsh and excessive.(ii)That the trial Magistrate failed to use discretion fairly.(iii)That crucial exhibit, the knife, was not produced in evidence.(iv)That the trial Magistrate failed to consider the Appellants mitigation.

5. The appeal was canvassed through written submissions. The Appellant filed his submissions on November 23, 2021. As stated above he has included in his submissions, another set of grounds of appeal. Perhaps this is what he refers to when he states that he has filed an amended petition of appeal. The Prosecution filed submissions on July 21, 2021.

6. The Appellant argued that the sentence meted on him is harsh and excessive. He submitted that the use of the word “liable” in Section 231(a) had been interpreted by the courts to mean that the courts have discretion and that the sentence is not mandatory. In support of this submission, he relied on various authorities including the case of Caroline Auma Majabu v R [2014] eKLR.

7. The Appellant further relied on the laws on sentencing under sections 216 and 329 of the Criminal Procedure Code that the court should have taken into account the evidence, the nature of the offence and the circumstances of the case to arrive at an appropriate sentence.

8. He submitted, though the witnesses alleged that he had a knife, it was not brought as exhibit despite the evidence that the same was snatched from him by the masaais.

9. He submitted that he was epileptic as mitigated but the court did not consider this when sentencing him. He cited Article 28 of the ConstitutionHe stated that the court was unfair in failing to consider his life-threatening condition.

10. He submitted further that the evidence adduced fell short of the standard required and that the court relied on circumstantial aspects incapable of sustaining a conviction.

11. He has cited several authorities which this court has considered.

12. The appeal was opposed by the learned prosecution counsel who supported the conviction and the sentence given by the trial court. Counsel sought to demonstrated that the prosecution, through the five witnesses that testified, proved its case beyond reasonable.

13. The learned prosecution counsel submitted that the prosecution called 5 witnesses who established the degree of injury, the identity of aggressor and the intention, the key ingredients of the charge. It was submitted that the appeal lacks merit and ought to be dismissed and conviction and sentence affirmed.

14. I have considered this matter. I am alive to the duty of this court while sitting as the first appellate court. I am required to read, analyze and consider all the evidence adduced in the lower court and arrive at my own independence conclusion.

15. The evidence of the five prosecution witnesses show that the Appellant has sold a memory card to the sister of the Complainant, Penina Mugure Nganga (PW1) for Kshs 200. The sister, whose name is given as Rhoda, had left and gone to school in Nairobi. The Appellant is said to have gone to demand payment of that money from PW1 who did not have the money. The Appellant is said to have told PW1 that he would return in five minutes.

16. Evidence shows that the Appellant left and shortly returned. He slapped PW1 repeatedly on the cheek, hit her with his head and attacked her with a knife, stabbing her on the head, left and right wrist, neck and back. PW1 was rescued by members of public. She was taken to Kajiado County Referral Hospital where she was attended to by Boniface Gachanga Maina, a Clinical Officer (PW4). She was admitted at the hospital for five days from November 26, 2016 to 30th of the same month.

17. The injuries she sustained were narrated by PW4 as follows:(i)12 cm by ½ cm deep bleeding cut wound on the right hand which was swollen and tender.(ii)2. 5cm by ½ cm deep cut wound on the right neck,(iii)2cm by ½ cm deep cut wound on the right chest (back chest wall).(iv)3cm by ½cm deep cut wound on hand and wrist(v)superficial bruise on the right middle finger on the left hand and forearm.(vi)Raw bruise on the leg on the left big toe.

18. PW4 testified that the weapon used was a sharp object. He assessed the degree of injury as maim. He produced P3 Form as exhibit 3, the admission discharge summary as exhibit 1 and CT -Scan as exhibit 2.

19. That the Appellant had a debt of Kshs 200 from a memory card he had sold to PW1’s sister was confirmed by Grace Wanjiru Nyoro (PW3), PW1’s mother. PW3 testified that the Appellant had passed by her kiosk on a Thursday when she called him and told him that his money would be paid that Sunday but on Saturday he attacked PW1.

20. Evidence shows that the Appellant was seen chasing PW. Francis Njunge Mukuria (PW2) told the court that on November 26, 2016 at around 11am to 12 noon he saw a man chasing a woman. He went to the scene and found the woman, PW1, on the ground and the Appellant holding a knife. He told the court that PW1 was bleeding and screaming asking for help. The Appellant was telling PW1 that he would kill her and that PW1’s clothes were soaked in blood.

21. I have also read Appellant’s defence. He told the court that he lives in Kajiado Majengo and that he sells water on handcart; that he had sold water to the complainant’s mother but she had not paid him; that he went to ask for the payment but the complainant cut him on the cheek and hand with a knife; that he was taken to the police station where he reported and later taken to the hospital for treatment; that after he was healed he went back to work on 26/1/2017 but was arrested at the market in Kajiado and later charged with this offence. He denied he committed this offence.

22. The whole of Section 231 of the Penal Code under which the Appellant was charged reads as follows:Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-(a)unlawfully wounds or does any grievous harm to any person by any means whatever; or(b)unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife or other dangerous or offensive weapon; or(c)Unlawfully causes any explosive substance to explode; or(d)sends or delivers any explosive substance or thing to be taken or received by any person; or(e)causes any such substance or thing to be taken or received by any person; or(f)puts any corrosive fluid or any destructive or explosive substance in any place; or(g)Unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person,is guilty of a felony and is liable to imprisonment for life.

23. I have read the entire lower court file record. I have satisfied myself that the learned trial Magistrate gave the entire evidence, that of the prosecution and that of the defence, due consideration and made findings on it. The claim by the Appellant that the trial court did not consider his evidence cannot be true.

24. The burden of proof in criminal trials always lies with the prosecution and does not shift. The Appellant was seen chasing PW1. PW2 went to the scene upon seeing a man chasing a woman and found the Appellant holding a knife and PW1 on the ground bleeding. The bloodstained clothes worn by PW1 were identified and exhibited in court. All this evidence was taken into account and the trial court arrived at the conclusion that the prosecution had proved the case beyond reasonable doubt.

25. The injuries sustained by PW1 were confirmed by PW4. The injuries noted by PW4 agree with the injuries narrated by PW1 in her evidence. These injuries were caused by a sharp object. The knife is such sharp object. It is true the knife used by the Appellant was not recovered by the police to be produced in court. But this court harbours no doubts that the Appellant used a knife to inflict those injuries. The evidence of PW1 and that of PW3 confirm this.

26. The Investigating Officer Corporal Charles Koome, PW5, was cross examined by the Appellant on the issue as to why the knife was not produced as exhibit. He told the court that the knife was not brought to court. I have considered this matter and it is my view that failure to produce the knife is an anomaly on the part of the prosecution but this failure did not occasion miscarriage of justice nor prejudice the Appellant given the evidence adduced against him.

27. InChris Kasamba Karani v Republic[2010] eKLR, the Court of Appeal stated as follows in respect of failure to produce the weapon used in the commission of the offence:“The offence as charged could have been proved even if the dangerous weapon was not produced as exhibit as indeed happens in several cases where the weapon is not recovered. So long as the court believes, on evidence before it, that such a weapon existed at the time of the offence, the court may still enter and has been entering conviction without the weapon being produced as exhibit.”

28. This authority is binding as far as this court is concerned. I am satisfied that this offence could have been proved with or without production of the knife.

29. I have considered all the grounds of appeal. I do not agree with the Appellant that the learned trial Magistrate shifted the burden of proof to him nor do I find the evidence by the prosecution witnesses contradictory. The evidence is clear on what happened. The Appellant did not identify which witnesses he considers crucial that were left out. I have noted there is mention of Maasai men who cut and hit the Appellant in a bid to disarm him and stop him attacking PW1. These were not called to testify. In my view this failure did not occasion miscarriage of justice. The Appellant was accorded a fair trial and the trial court relied on the evidence adduced to convict him.

30. It is also my finding that the evidence of the five witnesses proved the guilt of the Appellant. His defence was considered. His mitigation was also considered as the record shows. I have also considered the same and I am satisfied that the defence is a mere denial. I hereby reject it.

31. I want to address the issue of harsh and excessive sentence as well as whether the learned trial Magistrate exercised discretion fairly. I have considered the case of Wanjema v Republic [1971] EA 493 that laid down the general principles upon which the first appellate court may act upon in dealing with an appeal on sentence that an appellate court can only interfere with the sentence imposed by the trial court if it is satisfied that in arriving at the sentence the trial court did not consider a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion (emphasis added).

32. The sentence for the offence the Appellant was tried for in the lower court is provided for under the same section creating the offence. I summarize the relevant part here: is guilty of a felony and is liable to imprisonment for life.

33. The operative word here is “liable”. I agree with the Appellant in his submissions on the use of the “liable”. In Caroline Auma Majabu case cited above and relied on by the Appellant, the Court of Appeal held the view that the use of the word “liable” leaves room for judicial discretion. There are many other cases holding similar view.

34. It is clear to me that the only time this court, sitting as the first appellate court, can interfere with the sentence imposed by the trial court is if this court is satisfied that in arriving at the sentence the trial court did not consider a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive.

35. From my reading and understanding of the judgment of the trail court and the sentence meted out, the learned trial Magistrate understood the penalty provided by Section 231 for the offences created by that section to mean that it is a mandatory sentence. It is not a mandator sentence. It is discretionary as reasoned by the Court of Appeal in the Caroline Auma Majabu case. Life sentence provided by that section is the upper limit. The court has discretion to give any other lower sentence. This is where the learned trial Magistrate failed in exercise of judicial discretion in sentencing. The learned trial Magistrate misapprehended the law in that respect and sentenced the Appellant to life imprisonment. This lead to a harsh and excessive sentence in my view and as argued by the Appellant.

36. For that failure to exercise judicial discretion judicially, this court faults the trial court. For that reason, the Appellant succeeds only in respect to the issue of the sentence.

37. My careful consideration of this matter leads me to the conclusion that the evidence against the Appellant is sufficient to lead me to conclude that the prosecution proved this case against him beyond reasonable doubt. His grounds of appeal relating to evidence adduced cannot stand and must fail. Consequently, the Appeal fails in respect of conviction and that part of the Appeal must be dismissed. The Appeal succeeds in respect to sentence handed down to him. In that respect this court upholds the finding of guilty and the conviction for the offence charged but reverses the sentence from life imprisonment to a sentence of twenty (20) years. The Appellant shall serve twenty (20) years taking into account the time he has been serving sentence and the time he has been in custody waiting for the determination of this case. It is so ordered.

Dated, signed and delivered this 9th February 2022. S. N . MUTUKUJUDGE