[2023] KEHC 25230 (KLR)

Ndao v Republic (Criminal Appeal E060 of 2022) [2023] KEHC 25230 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25230 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E060 of 2022

AK Ndung'u, J

November 9, 2023

Between

Mwatsahu Ndao

Appellant

and

Republic

Respondent

(Appeal from original conviction and Sentence in Malindi CM Criminal Case No 913 of 2019 – O. Onalo, RM)

Judgment

1. The Appellant herein, Mwatsahu Ndao was convicted after trial of the offence of threatening to kill contrary to section 223(1) of the Penal Code. The particulars were that on 01/09/2019 at 2000hrs at Mpirani Village in Magarini location, Magarini Sub-County within Kilifi County without lawful excuse uttered words ‘nitakuuwa kama vile nilivyomfanya Kuphenya Ndao’ loosely meaning ‘I will kill you the way I did Kuphenya Ndao’ threatening to kill Leonard Mambo Ndao. On 17/03/2021, the Appellant was sentenced to four (4) years imprisonment.

2. The Appellant through his counsel appealed to this court challenging the conviction and the sentence. The counsel filed a petition of appeal dated 17/11/2022 raising the following grounds;i.The learned magistrate erred in law in finding that the prosecution had proved its case beyond reasonable doubt.ii.The sentence was harsh and oppressive and against the Constitutional principles.iii.The learned magistrate erred by making a substantive order on an interlocutory application by a counsel watching brief for the complainant.iv.The learned magistrate ruled against the principles of natural justice by condemning the Appellant unheard and against Article 50(2)(a) of the Constitution.v.The learned magistrate failed to uphold the right under Article 57(a) of the Constitution on ensuring that the rights of the older persons live in dignity, respect and free from abuse.vi.The learned magistrate erred by holding that a ruling is analogous to a judgment.vii.The learned magistrate erred by holding that the evidence presented was conclusive to sustain a conviction.viii.The learned magistrate failed to note that the criminal process was being used to oppress and punish the Appellant to settle scores in an otherwise civil matter.ix.The learned magistrate failed to note that there was a shift of burden to the accused.x.The learned magistrate failed to appreciate the Wednesbury’s principle of reasonableness, fairness and legitimate expectation.

3. The appeal was canvassed by way of written submissions. Counsel for the Appellant argued that PW1 evidence did not allude to any threats to kill since he was not at the scene and could not walk fast to the scene despite the fact that he stated that he heard the Appellant threatening the complainant. That PW1 evidence should have been treated as DW4’s evidence which was disregarded by the trial magistrate by stating that she was not at the scene but 10meters away from the scene hence her evidence was unreliable. That since PW1 stated that he was not at the scene, the evidence of PW1 was equally unreliable as of that of DW4. Therefore, the evidence of the complainant remained uncorroborated. It is submitted that the prosecution failed to prove their case beyond reasonable doubt hence the Appellant was not properly convicted. Furthermore, there was a shift of burden of proof to the Appellant.

4. On sentencing, Counsel submitted that there were no aggravating factors and there were no reasons that were advanced to warrant a long-term sentence for a first-time offender who is very old and having health challenges. The trial magistrate also failed to uphold Constitutional edicts on the rights of the older persons by issuing a harsh and oppressive sentence in the circumstances. That the trial magistrate failed to consider the pre-sentence report which indicated that the suit came about as a result of a land dispute and disregarded the report to the detriment of the Appellant by stating that the report failed to capture the reasons why the complainant wanted the Appellant to be imprisoned.

5. The Respondent counsel on the other hand opposed the appeal. Counsel submitted that the trial magistrate evaluated the evidence presented by the prosecution and the Appellant and found the Appellant’s evidence as an attempt to escape liability. Further, that the trial magistrate analysed the ingredients of the offence and correctly arrived at a decision that all ingredients were proved. On the sentence, it is urged that the trial court called for a presentence report which it considered together with the Appellant’s mitigation. That the sentence was too lenient given the circumstances of the case.

6. The Respondent further submitted that the conviction ensued from the evidence tendered and not through the warning that was issued by the trial magistrate upon the application by the counsel watching brief for the complainant. On breach of Article 57(a) of the Constitution, counsel submitted that the Constitution bars any discrimination on the grounds of age, gender, sex, colour and creed. That the Appellant’s rights to fair trial were upheld at all time until his conviction. On the issue that the criminal process was abused to settle scores in an otherwise civil matter, it is submitted that the elements of the criminal charge were proved against the Appellant beyond reasonable doubt. That the burden of proof did not shift to the Appellant and the Appellant’s defence failed to cast doubt on the prosecution’s case.

7. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32.

8. I have therefore considered the submissions and the authorities relied by the parties. I have also read through the record of the trial court in order to evaluate all the evidence placed there and arrive at my own conclusions. I have borne in mind however, that I neither saw nor heard the witnesses myself, and I have given due allowance for that fact.

9. To prove their case, the prosecution called three witnesses. PW1 Wanini Nado was a brother to the Appellant and the complainant. He testified that the Appellant was his neighbour and he was living in the same homestead with the Appellant. On the material night, the complainant went to the Appellant’s for a talk and the Appellant asked the complainant whether he had talked to Mwanyale. The complainant responded by stating that he went (sic) but he wanted to talk to the Appellant. The Appellant started throwing words at the complainant. He called him ‘ghasia’ and the he stated ‘au wataka nikuue vile nilivyo muua ndugu yako Kupenya Ndao’ and the complainant asked him whether he was the one. He testified that at that time, he was outside and he heard them talking. They were outside and he heard their voices. He stated that the reason they were quarrelling was due to a land dispute they had. On being cross examined, he testified that he was at home and clearly heard what the Appellant said and the complainant asking ‘kwani ni wewe ulimuua’. He said that he was lame and could not walk fast but he heard the Appellant.

10. PW2 was the complainant. He testified that he went to the Appellant’s house who is his brother at around 8:00pm. He stated that he had told the Appellant that he wanted to demolish his house that he had built at his space. He told him that he was there to talk on what they had agreed on. The Appellant asked him whether he had gone to Ngumbao Manyale to which he responded in affirmative. The Appellant started abusing him by saying that he was stupid and useless. He then said to him ‘ama unataka nikuue vile nilifanya ndugu yako Kupenya Ndao’. He testified that he got confused as his brother died in the year 2016 and demanded to know whether the Appellant was the one who killed his brother. He testified that there was moonlight and they could see each other and the Appellant’s family stays there. He testified that his brother PW1’s house was 5 meters from the Appellant’s house. He testified that he reported to mzee wa Nyumba Kumi who referred him to the village elder and he was referred to the chief and then he reported to the police.

11. PW3 PC George Mutikoa testified that a report was made by the complainant on 02/09/2019 of being threatened. Later on, the complainant went to the station and he recorded their statement. He summoned the Appellant to the station through the village elder but he refused to honour the summon and thereby he went to arrest him. On interrogation, the Appellant denied threatening the complainant and he was thereby charged.

12. The Appellant gave a sworn testimony and he called four witnesses. He testified that on the material day in the morning, the complainant went to his house twice and greeted him and left. He went to the shamba until 8:30pm when he returned home. At his home he asked his wife about the cows and he took a torch and at that moment, he saw the complainant who was inside his house. He greeted him and as he was leaving, the complainant followed him and he stopped and the complainant asked him whether he could remember what he had said. He answered that they could talk later but the complainant replied by stating that the Appellant had frustrated him for a long time and stated that ‘nitakufikisha mwisho mwaka huu ama unitafute’. He replied to the complainant that when he went to his house, he thought he had followed his sheep to say hello but seems like he had a different agenda. The Appellant testified he left to get his cows and when he came back, his child informed him that the complainant told him ‘babako amenihangaisha kwa muda mrefu. Kwa hivi nitamfikisha mwisho’.

13. He stated that it was not the first time since the complainant had done it before and even disturbed people until they went to the police station. He stated that upon his arrest, the complainant told the Appellant’s elder son that once the case is finished, the community will finish the Appellant. He testified upon being recalled by his counsel that Kuhenya Ndao died while at the sea and he buried him in his place. That the complainant had gone to see their father in 2013 so that he can divide the land amongst them but their father stated that the land belonged to the Appellant. That the complainant told him ‘umenihangaisha muda mrefu, kufikia mwaka huu hauwishi, nitakufikisha mwisho’ and he added ‘siku yake ni moja.

14. On cross examination, he testified that he did not report when the complainant said he will finish him. On further cross examination, he testified that the complainant meant that he will kill him but did not report to the police. They were outside and his children and his wife were outside when the Appellant was threatening him. He testified that he wrote a statement with the police and in his statement, he mentioned that the complainant had threatened him. On re- examination, his statement was read to him which stated that the complainant continued by saying ‘utanitafuta.’

15. DW2 Ronald Ngombo testified that the Appellant and the complainant are his in-laws. He testified of another incident when the complainant had beaten the Appellant’s son and that other things happened that forced the Appellant to take a P3 but it was hidden. He testified that he wanted to reconcile the Appellant and the complainant but he heard that the Appellant had been arrested. Accompanied by the Appellant’s son, he went to look for the complainant at his church but he told them that his in-law is a witch and if the community was to hear that the Appellant was out, the community will finish him. He testified on cross examination that he was not at the scene on the material day.

16. DW3 Lenox Mwatsao was the Appellant’s son. He testified that on the material night, the complainant went to their home where he was with his parent, and siblings. He greeted them. His father came out of the house and greeted the complainant. The complainant asked the Appellant if he could remember what he told him and the Appellant responded by stating that he could not and he would prefer an appropriate time. The complainant responded by stating that ‘uliniangaisha muda mrefu na kufika sasa huu mwaka hauwezi isha, nitahakikisha nimekufikisha mwisho.’ He testified that he did not hear his father utter the words that were in the charge sheet. He testified that Kuhenya Ndao died in the ocean and no one was charged with his death.

17. On cross examination, he testified that there was a rift between the Appellant and the complainant from a land issue. He stated that they did not report the complainant and the words the complainant uttered meant that he was planning to kill the Appellant. He testified on re-examination that they did not report since they have many OB numbers and no action had been taken.

18. DW4 was the Appellant’s wife. She testified that on the material night, the complainant went to their house and asked where the Appellant was. He was inside the house. He asked the Appellant whether he remembered what he had said but the Appellant informed the complainant that he did not have time since he was going to the shamba. The complainant then responded that, ‘atamfikisha mwisho, alafu bwanangu amtafute.’ The Appellant did not say anything. She stated that the complainant charged the Appellant with an issue of land which started a long time ago. On cross examination, she testified that the person who heard the complainant was DW3 since she was standing at the door ten meters away.

19. DW5 was DW3’s wife. She testified that on the material day, the complainant met with DW3 and talked in length but did not hear what they were saying. DW3 informed her that the complainant had stated that the Appellant had bewitched him. In the evening, the complainant went to the Appellant’s house and asked him whether he remembered what he had said and the Appellant responded that he had no time and went on with his work. On cross examination, she testified that she did not know whether the Appellant threatened the complainant. She stated on re-examination that she did not hear the Appellant saying that he will kill the complainant.

20. That was the totality of evidence before the trial court. The offence of threatening to kill is provided under section 223(1) of the Penal Code which states as hereunder;“223(1) Any person who without lawful excuse utters, or directly or indirectly causes any person to receive a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years”.

21. To prove the case of threatening to kill, the prosecution was supposed to prove the ingredients that the Appellant without lawful excuse uttered words which amounted to a threat to kill the complainant, the uttering of these words was made in the context that the complainant perceived that he was under threat of losing his life, the context must have come out in the evidence that was adduced by the prosecution witnesses and the explanation that was given by the accused in his defence. On the other hand, the trial court was supposed to consider whether the Appellant had a lawful excuse.

22. The evidence on record revealed that there was a long-term outstanding land dispute between the Appellant and the complainant. The Appellant went to the Appellant’s house demanding they talk on what they had agreed on earlier. The Appellant however excused himself and an altercation ensued. The complainant and PW1 testified that the Appellant asked the complainant whether he had talked to Mwanyale which the complainant responded in affirmative. The Appellant then started throwing words at the complainant and according to PW1, the Appellant called the complainant ‘ghasia.’ The complainant testified that the Appellant called him stupid and useless. Then the Appellant uttered the following words;‘ama wataka nikuue kama vile nilivyo muua ndugu yako Kupenya Ndao.’

23. The complainant demanded to know if at all the Appellant was the one who killed the said brother. PW1 testified that he was a neighbor to the Appellant and they were living in the same homestead and he heard the altercation while he was outside his house. The Appellant and the complainant were outside at that time. The complainant acted by reporting the matter to Mzee wa Nyumba Kumi, the village elder, the chief and later to the police.

24. The defence case was that it was the complainant who threatened the Appellant. The Appellant testified that the complainant told him that he had frustrated him for a long time and ‘nitakufikisha mwisho mwaka huu ama unitafute.’ He testified that his son DW3 informed him that the complainant had said to him ‘babako amenihangaisha kwa muda mrefu. Kwa hivi ntamfikisha mwisho.’ He testified on further cross examination that he understood that the complainant meant that he will kill him. He stated that he did not report the threats to the police. He denied threatening the complainant.

25. His witnesses also denied the fact that the Appellant threatened the complainant. As to the evidence by his witnesses, it is only DW3 who testified that he heard the complainant threatening the Appellant. DW2 was not at the scene at the time. DW4 testified on cross examination that she was standing 10 meters away from the Appellant and the complainant. She did not mention whether she heard the utterances by the complainant but stated that DW3 was the one who heard. DW5 as well did not state whether she heard the utterances by the complainant threatening the Appellant. DW3 testified that the complainant told his father that ‘uliniangaisha muda mrefu, na kufikia sasa huu mwaka hauwezi isha, nitahakikisha nimekufikisha mwisho.’

26. The trial court while convicting the Appellant stated that the alleged utterances that were made by the complainant did not translate to a threat. The trial court interpreted those words to mean that the accused had frustrated the complainant for so long and he would take him far or look for him in that year.

27. Having re- evaluated the evidence, am satisfied that the words complained of were uttered by the Appellant. This is confirmed by the cogent evidence of the complainant which was duly corroborated by PW1. PW1 was an independent witness whose evidence in my view is credible. The words uttered by the Appellant clearly meant that he meant to kill the complainant. He added more fear by stating that he will kill the complainant the way he did to Kuhenya Ndao, his brother. There was evidence on record from both side that Kuhenya Ndao was deceased and this was not therefore an idle threat. It must have instilled fear on the complainant. The complainant’s evidence was well corroborated by PW1’s evidence who was in the same compound when the utterances were made. Contrary to the defence contention, evidence has shown that the distance from the scene to where PW1 was lay within hearing range of the words uttered.

28. I have considered the defence evidence. Although the Appellant claimed that he was threatened as well and that the words that the complainant used meant that the complainant will kill him, he did not report the said threats unlike the complainant who reported to Mzee wa Nyumba Kumi, the village elder, the chief and to police station. The omission to report to authority over the purported threats by the Complainant pours cold water on the testimony of the Appellant and DW3 a son to the Appellant, who from the evidence, is the only one who heard the threats made by the complainant to the Appellant. I do not believe the defence account of the events of the day. The evidence does not displace prosecution’s evidence.

29. Am satisfied the prosecution proved its case beyond reasonable doubt.

30. On the sentence, the Appellants’ counsel submitted that there were no aggravating factors and there were no reasons that were advanced to warrant a long-term sentence for a first-time offender who is very old and having health challenges. That the trial magistrate also failed to uphold Constitutional edicts on the rights of the older persons by issuing a harsh and oppressive sentence in the circumstances. That the trial magistrate failed to consider the pre-sentence report which indicated that the suit came about as a result of a land dispute and disregarded the report to the detriment of the Appellant by stating that the report failed to capture the reasons why the complainant wanted the Appellant to be imprisoned.

31. The offence under section 223(1) carries a sentence of 10 years. The Appellant was sentenced to four years. The trial court while sentencing the Appellants noted that the pre-sentence report was not conclusive for it omitted the complainant’s sentiment save that the complainant wanted the Appellant to be imprisoned.

32. It is trite law that sentencing is a discretion of the trial court and an appellate court will not easily interfere with the discretion of the trial court on sentence unless it is shown that in exercising its discretion, the court acted on a wrong principle; failed to take into account relevant matters; took into account irrelevant considerations; imposed an illegal sentence; acted capriciously or that the sentence imposed was harsh and excessive. (Ogolla S/o Owuor v R {1954} EACA 270).

33. The offence carries a term of up to 10 years imprisonment. The court when sentencing the Appellant appreciated this fact but exercised discretion to reduce the sentence by more than half. Still, noting the age of the Appellant and the presence of a family feud, am persuaded that this is a relevant factor that the trial court failed to consider. Am thus inclined to interfere with the sentence.

34. With the result that the appeal against conviction fails and is dismissed. The Appeal against sentence succeeds. The Appellant has served about 1 year and 7 months in jail. I consider that period adequate. I therefore set aside the sentence of 4 years imprisonment imposed by the trial court and substitute thereof a sentence of imprisonment up to the time served. The Appellant is to be set at liberty forthwith unless otherwise lawfully held under another warrant.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE