[2023] KEHC 23255 (KLR)

Mutua v Republic (Criminal Appeal E036 of 2022) [2023] KEHC 23255 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23255 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E036 of 2022

RK Limo, J

October 3, 2023

Between

Stephen Kutamba Mutua

Appellant

and

Republic

Respondent

Judgment

1. Stephen Kutamba Mutua, the appellant was charged vide Mwingi Chief Magistrate’s Court Criminal Case No. 49/2018 with two counts namely:-i.Count I- Grevious Harm contrary tosection 234 of the Penal Code with the particulars being that on March 26, 2016 at Nzawa Location, Mwingi West Sub-County within Kitui County did grievous harm to Josphat Muthui Kamungu.ii.Count II –Assault causing actual bodily harm contrary to Section 251 of the Penal Code.The particulars in the 2nd Count were that on the same day, place and time, the appellant assaulted Breta Masaa Muthui thereby occasioning her actual bodily harm.

2. The appellant denied committing both counts but after trial he was found guilty in Count I and convicted.Below is a summary of the evidence tendered before the trial court.

3. Josphat Muthui Kamungu (PW1) the complainant in Count I, told the court that he was leaving a graduation ceremony at 11 pm on the material night in the company of his wife (PW2) and one Kawila Mwinde (PW3) when they encountered a person on the way sitting on the roadside. He stated that he was riding a motorcycle and rode past him but decided go back and check who it was. That upon reaching where the person was he asked him twice who he was but got no answer and on the third time, the stranger emerged and started attacking him. He stated that there was moon light and he identified that the person was the appellant. The witness testified that the appellant attacked him by stepping on his leg which he stated had been injured from a previous accident and when his wife intervened, the appellant attacked her as well. He stated that people gathered at the scene including the area chief (PW4) who asked the appellant to leave before the witness and his wife home. That he sustained injuries and was treated at Mwingi District Hospital a few days after the incident and thereafter reported the matter at Nzalae AP post.

4. Breta Masaa Muthui (PW2) PW1’s wife told the court that she was travelling from a graduation ceremony in the company of her husband PW1 and one Kawila (PW3) in the night when they encountered a person sitting on the side of the road. That they initially passed him but then went back to check on who the person was but the person hid behind a tree. She stated that PW1 called out to find out who the person was but there was no answer and when the stranger remerged and he attacked PW1 and when she intervened he attacked her as well. The witness also testified on the injuries PW1 sustained stating that he suffered a fracture on his left leg which he received treatment for at Mwingi District hospital. Further, that the incident was reported to the police but that they also attempted to settle the dispute at home in vain.

5. Lilian Kawila Mwende (PW3) on her part testified that she had attended the same graduation ceremony and was travelling in the company of PW1 and PW2 when she saw someone lying on the ground along the road and informed PW1 and PW2 about the same. She stated that because the trio did not know who the person was but they decided to turn back and check and when they arrived the person stood and hid behind a tree. That the person the reappeared and a fight broke between him and PW1 as well as PW2 when she tried to intervene. The witness testified that she called her uncle who then called a village and the area sub chief was also informed of the incident.She testified that the appellant was her uncle and knew him well.

6. Dominic Nzove (PW4) an Assistant Chief Nzalae Sub-location testified and corroborated the evidence of PW1, PW2 and PW3 particularly in regard to the events of that material day. He stated that they had attended a pass-out ceremony of one of the village elder’s child and had convened at a village for dinner at the home of the village elder who was known as Kavete Mbiti.

7. He said that at around 11PM, they heard screams and rushed to where the screams emanated from to find out what was happening and that on reaching the scene he found the complainant (PW1) and the appellant in the company of many people.

8. He testified that the Complainant (PW1) was lying down in pain with his motorbike on the ground. The Area Chief stated that, on asking what had transpired, he was told that the appellant had been sighted at the church compound and on being asked to identify himself, he emerged and started to fight.The Chief stated that he instructed the appellant to leave the scene and put back the motorcycle to upright position and carried the Complainant (PW1) to the village elder’s home from where the son of the village elder took him home. He stated that he advised them to report the matter to the police the following day.

9. He added that the appellant later burnt down a church put up by PW1. He added that PW1 was a Pastor in the church but he did not know who owned the land upon which the church was built.

10. Dorcas Ndanu (PW5) a Clinical Officer based at Mwingi Level 4 Hospital stated that she examined and filled P3 Form of the two complainants namely Josephat Muthui (PW1), Complainant in the first Count and Breta Masaa Muthui (PW2) and Complainant in respect to the 2nd Count.

11. She testified that PW1 could not walk due to the injuries on his limbs adding that an x-ray done revealed he suffered a fracture. She classified the injuries as grievous harm and tendered the P3 as P Ex2.

12. In regard to Benta Masaa Muthui (PW2) and the complainant in the second count, she stated that she had facial swellings and tenderness on the chest and back. She tendered her (PW2) treatment notes as P Ex 2 and P3 Form as PEx4.

13. Police Constable Isaiah Muiya (PW6) an officer based in Ngutani Police Station and the Investigating Officer in this case testified and told the trial court that a report on the assault was reported on March 29, 2018by both PW1 and PW2. He reported about the actions taken by the police including issuance of P3 Forms to the 2 complainants and the subsequent arrest and arraignment of the appellant.

14. When placed on his defence, the appellant, accused PW1 for knocking him using his motorbike. He claimed that PW1 was carrying 2 people and when they reached where he was, he hit him with the motorcycle. He stated that, he grabbed the motorcycle upon which PW1 and his 2 pillion passengers reportedly fell. He claimed that the two, PW1 and PW2 accused him of torching their church adding that he purely acted in self defence.He conceded that a crowd of people gathered at the scene of the incident including the Assistant Chief who ordered him to go home. He stated that he was arrested 2 months later. He insisted that he was the one who was attacked and he only acted in self defence. He stated that he was arrested 2 months later. He insisted that he was the one who attacked and he only acted in self defence. He stated that he owned the land where the incident occurred. He tendered a title deed showing the registered owner as John Mutua whom he claimed was his father.

15. The trial evaluated the evidence and found that the prosecution had discharged its burden of proof as there was sufficient evidence that the complainants were injured and that the defence raised, showed that the motive of the attack was a land dispute. The trial court convicted the appellant in respect to the 1st Count and apparently inadvertently omitted out the 2nd Count while rendering the conviction but I will get back to that omission later in this judgement.

16. Being dissatisfied with the trial court’s decision, the Appellant filed a Memorandum of Appeal dated June 30, 2022setting out four grounds of appeal as follows;i.The Learned Trial Magistrate erred in law in convicting the Appellant on a defective charge sheetii.The Learned Trial Magistrate erred in law and in fact in convicting the appellant on the offence charged without finding all grounds required to find one guilty proved beyond reasonable doubt by the prosecutioniii.The Learned Trial Magistrate erred in law and in fact in disregarding the Appellant’s defence and testimony that supported his legal legitimate and constitutional right to defend one self and property.iv.The Learned Trial Magistrate misdirected herself on the burden and incidence of proof and consequently arrive at a judgment unsupportive of facts, evidence and law.

17. In his written submissions, the appellant contends that the charge was defective and that all the ingredients of the offence were not proved. He further alleges that his defence was not considered.

18. The Appellant submits that omission of the word unlawful in the charge sheet makes the same defective as the word forms an essential ingredient of the offence. The decisions in Yosefu v Uganda(1968) EA 236 and Sigliant v Republic (2004) KLR 480 are cited in this respect. The appellant also cited the case of Issack Kimeu Mutuku v R (2014) eKLR where the court allowed an appeal upon making a finding that the statement of the offence did not specify which law exactly the appellant contravened.

19. The Appellant contends that the incident occurred at night and was entitled to his right of self defence claiming that he was altered while he was on his property.

20. The Respondent has opposed this appeal contending that it proved its case beyond doubt adding that the medical evidence tendered reveals that PW1 and PW2 were injured during the assault. It submits that the appellant just attacked the complainant without any provocation contending that he was well known to both of them.

21. The State further contests the appellant’s contention that his defence was not considered submitting that the appellant did not sustain any sort of injuries if at all he was acting in defence and that the trial court considered the same.

22. On whether the charge sheet was defective, the State submits that the omission of the word unlawful in the charge is curable under section 382 of the Criminal Procedure Code.

23. On the sentence, the Respondent urges the court to rectify the trial court’s omission and sentence the Appellant on each count separately.

24. This court has considered this appeal and the response made. This court being the first appellate is required to re-assess the evidence tendered during trial with a view to making own conclusion having in mind that it does not have the benefit of trial court who took the evidence and observed the demeanor of witnesses as they testified.

25. The appellant was charged with causing grievous harm and assault against the PW1 and PW2 respectively, on the night of March 26, 2018. The undisputed facts are that a physical altercation occurred between the Appellant, on one hand and PW1, PW2 on the other on the material night. It is also not in dispute that PW1 and PW2 sustained injuries as per the P3 forms and treatment notes tendered in court. The identity of the appellant is also not disputed as he admitted to having been at the scene at the material time. The issues for determination therefore are;i.Whether the charge was defectiveii.Whether the defence of self-defence was considerediii.Whether the prosecution proved its case against the appellant beyond reasonable doubt.iv.Whether the trial court erred on the sentence.

26. (i) Whether the charge sheet was defective.The appellant submits that the charge sheet was defective because it omitted the word ‘‘unlawful’’ in the particulars. I have looked at the particulars in both counts and I agree that the word ‘‘unlawful’’ immediately before the verb ‘‘did grievous harm’’ was omitted in the first count but in the 2nd Count, the word ‘‘unlawful’’ is there.

27. The question posed is whether the omission of the word unlawful in 1st count was fatal as contended by the appellant or curable under section 38 of Criminal Procedure Code as advanced by the respondent.

28. This court has considered the omission and whether the omission caused prejudice or occasion any failure of justice and finds that it did not. In fact, the appellant has not pointed out what prejudice if any was occasioned because even without the word ‘‘unlawful’’ the particulars remained clear and disclosed an offence and that is why the appellant was able to plead not guilty and the case went to full trial. There was no prejudice caused to the appellant by the omission of the word ‘‘unlawful’’ in the particulars of the charge in respect to the 1st count.

29. Section 382 of the Criminal Procedure Code addresses consideration to take into account when dealing with such defects which are minor or insignificant. The provision states; ‘‘Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. It follows therefore that the court in determining whether a defect caused injustice has to have regard whether the objection should have been raised at an earlier stage in the proceedings.’’

30. This court finds that the appellant suffered no prejudice at all as the omission was minor and insignificant.

31. The Court of Appeal in the case of Benard Ombuna v Republic [2019] eKLR addressed a similar omission in the charge sheet. In the matter, the particulars as set out in the charge sheet in respect of both the main and alternative counts disclosed the offence of defilement rather than attempted defilement or committing an indecent act with a child respectively.The court considered whether the anomaly rendered the charge defective and stated as follows;‘‘13. This court appreciated in JMA v R [2009] KLR 671 that not all defects in a charge sheet will render a conviction thereunder invalid. Over time, the test of determining whether a charge is fatally defective so as to render any conviction a nullity has been established, both in our jurisdiction and other jurisdictions. In that regard, the Supreme Court of India in Willie (William) Slaney v State of Madhya Pradesh [AIR 1956 Madras Weekly Notes 391], held that;Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities.’’

32. In the case of Daniel Oduya Oloo v Republic [2018] eKLR, A Court found itself in a similar situation, where a charge sheet did not contain the word ‘‘unlawful’’ but the particulars in substance disclosed the offence charged. the court found that the omission was minor and could not render the charge defective. This court finds that the omission of the word ‘‘unlawful’’ in respect to the 1st Count did not render that count defective.

33. (ii) Whether the defence was consideredThe appellant contends that his defence of self-defense was not considered. Self defence as a defence is usually raised by a defendant facing a serious charge of murder. It is rarely available in cases of assault or grievous harm. The principle of self defence is that an accused person should be able to demonstrate that his reaction was equal to the peril or threat he faced. deficit a digit should be able to demonstrate that his reaction was equal to the peril or threat he faced.

34. Self defence is provided for undersection 17 of the Penal Codewhich provides as follows: -‘‘Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.’’

35. The Court of Appeal in Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR referenced the common law principles relating to self-defence as follows;What are the common law principles relating to self-defence? The classic pronouncement on this issue and which has been severally cited by this Court is that of the Privy Council in Palmer v R [1971] A.C. 814. The decision was approved and followed by the Court of Appeal in R v Mcinnes, 55 Cr. App. R. 551. Lord Morris, delivering the judgment of the Board, said:“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …..Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.”

36. The same court also gave further illustrations on the principles of self defence in the case of Lucy Mueni Mutava versus Republic [2019] eKLR when it held as follows: -‘‘The principles that have emerged from these and other authorities are as follows;i.Self-defence, as the term suggests, is defence of self. It is the use of force or threat to use force to defend one self, one’s family or one’s property from a real or threatened attack. Self-defence is therefore a justification in the application of force recognized by the common lawii.The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self-defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonableiii.It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self-defence. It is sufficient if he apprehends an attack and uses force to prevent itiv.The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.v.What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case……….’’

37. Applying the above principles, this court finds that the defence of ‘‘self defence’’ was not sustainable.

38. The evidence tendered by both the Prosecution and the appellant himself shows that the ground on self defence is unsustainable. The appellant stated as follows in his defence: -‘‘I recall 26/03/2018, I went to my farm before going home. A boda boda passed by carrying two people. It overtook me and made a U-turn and faced me. It then sped towards me to hit me. I grabbed it and fell down. They also fell. The persons who were on the boda boda then stated assaulting me accusing me of torching their church........’’

39. It’s quite apparent from the evidence tendered that the appellant did not sustain any injuries even if he was to be believed that he was knocked down by the Complainant using the motorcycle.

40. The defence of self-defence falls short on two grounds. Firstly, evidence from the other three people who were present, that is PW1, PW2 and PW3 were consistent when they went back to investigate as to who the person on the road was, upon reaching the scene, PW1 called out for the person to reveal himself. That the person initially hid and when he re-emerged he started attacking PW1. Secondly, the appellant alleged that the three attacked him on allegation that he had torched their church. This allegation was controverted by the evidence of PW2 and PW4 (the area assistant sub-chief) who stated that the appellant torched the church after the incident not before. The attack therefore, had nothing to do with the touching of the church.

41. It is true that the evidence tendered in the trial court showed that there was the presence of a land dispute which could have triggered the attack on the complainants. The medical evidence tendered shows that PW1 and PW2 were both seriously injured. The injuries were due to the attack inflicted by the appellant. The appellant did not demonstrate that he suffered any injury at all during the incident which clearly indicates that he was the perpetrator of the violence visited upon the complainants and not the other way. He had no reason to belief that there was danger or genuine reason for apprehension of danger to justify the violent reaction.

42. (ii) Whether the Prosecution’s Case was proved to the required standard.The appellant faced two counts of causing grievous harm contrary to section 234 of the Penal Code and assault causing actual bodily contrary to section 251 of the Penal Code.

43. The offence of grievous harm is described at section 243 of the Penal Code as follows;‘‘Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.’’

44. Section 4 of the Penal Code defines grievous harm as;‘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’.“Maim” is described as “the destruction or permanent disabling of any external or internal organ, member or sense”“Dangerous harm” is described to mean “harm endangering life”

45. ‘‘Harm’’ is defined as bodily hurt, disease or disorder whether permanent or temporary.

46. This Court has considered the evidence tendered by PW1 and finds that the injuries he suffered were quite serious as demonstrated by the medical evidence tendered by the medical expert(PW5). The Complainant in respect to Count 1 suffered a fracture during the attack and the attendant pain that went with that discloses that he suffered grievous harm.

47. I am also satisfied that the Prosecution was able to prove that the Complainant (PW2) in respect to the 2nd Count suffered actual bodily harm as shown by the P3 Form (P Ex3) tendered by PW5. The necessary ingredients in both counts were proved by the evidence tendered by the Prosecution beyond reasonable doubt.

48. The trial court was correct to enter a conviction in respect to Count I but erred by omitting to enter conviction or make a finding in respect to Count II. The appellant was asked to plead to both counts and he pleaded not guilty and though the record erroneously captures the 2nd Count as an alternative count, I find that the error was insignificant because it did not occasion any prejudice to the appellant because he got a chance to plead for both counts.

49. This court finds that the complainant in the 2nd Count failed to get justice by the omission by the trial court to enter a conviction. This court hereby invokes its powers under section 354 of the Criminal Procedure Code by entering a conviction in respect to the 2nd Count because the evident tendered proved that the appellant was guilty of both counts.In summary, this appeal fails.

50. This Court further finds that the sentence in respect to the 1st Count was too lenient given the serious nature of the offence. This Court while upholding the conviction in respect to 1st Count hereby enhances the sentence to 5 years’ imprisonment or a fine of Kshs. 250,000.

51. In respect to the 2nd Count, the appellant is hereby convicted and will pay a fine of Kshs. 100,000 or serve one year in jail in default. The jail terms in both counts shall run concurrently. 14 days Right to Appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 3RD DAY OF OCTOBER, 2023. HON. JUSTICE R. LIMO-JUDGE