[2022] KEHC 3394 (KLR)

Ngole & 2 others v Republic (Criminal Appeal E013, E014 & E015 of 2021 (Consolidated)) [2022] KEHC 3394 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3394 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Appeal E013, E014 & E015 of 2021 (Consolidated)

WK Korir, J

May 12, 2022

Between

Samson Katodi Ngole

1st Appellant

Edwin Pkemoi Ngole

2nd Appellant

Joel Kibet Ngole

3rd Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. S. K. Mutai, SPM, delivered on 7/10/2021 in Kapenguria SPMC Criminal Case No. 513 of 2020, R v Samson Katodi Ngole & 2 others)

Judgment

1. Samson Katodi Ngole, Edwin Pkemoi Ngole and Joel Kibet Ngole, the respective 1st to 3rd appellants were charged with the offence of causing grievous harm contrary to section 234 of the Penal Code. The particulars of the offence stated that on July 12, 2020 at Poole Sub-Location in West Pokot Sub-County within West Pokot County, the appellants jointly and unlawfully did grievous harm to Alfred Yego Kormot.

2. The appellants pleaded not guilty to the charge. At the conclusion of the trial, they were all found guilty and each one of them was sentenced to serve seven years in prison.

3. Each appellant filed a separate appeal and the three appeals were consolidated with the consent of the parties on November 29, 2021. All the petitions of appeal dated October 10, 2021 seek to overturn the conviction and sentence on the following grounds:i.That the learned trial magistrate erred in law and in fact in failing to consider the defence;ii.That the conviction is against the weight of evidence;iii.That the learned trial magistrate erred in law and fact in shifting the burden of proof to the appellants;iv.That the learned trial magistrate erred in law and fact and convicted the appellants when the prosecution had not proved their case beyond reasonable doubt as required by law;v.That the trial magistrate erred in law and fact and as a result misconstrued and misapplied the provisions of section 234 of the Penal Code;vi.That the conviction of the appellants was not proper;vii.That the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution failed to call key witnesses to prove their case;viii.That the learned trial magistrate erred in law and fact and failed to appreciate that the prosecution failed to prove the case against the appellants beyond reasonable doubt as required by law.

4. The prosecution called five witnesses at the trial. The complainant testified as PW1 and stated that on July 12, 2020 at around 10. 00am the appellants attacked him while he was on his way to buy a goat. He testified that the 2nd and 3rd appellants hit him on his hand with sticks while the 1st appellant hit his testicles with a stick. He further testified that a rider came and took him to Kapenguria County Referral Hospital where he was diagnosed with a burst left testicle and an operation was conducted on him. He was admitted for six days and upon discharge from hospital, he reported the matter at Kapenguria Police Station on July 18, 2020. On cross-examination, the complainant testified that he reported the matter late because he was in hospital. He also testified that he did not attack the appellants and that he had no dispute with the appellants whatsoever.

5. PW2 Georgina Chepkaptoyoi Daniel testified that on July 12, 2020 at around 10. 00am he saw the complainant passing by her home. She then saw the appellants running after him and started beating him with sticks. She heard the complainant scream and then saw him fall down. She screamed and people came to the scene. Thereafter, a motorbike rider took the complainant to hospital as he could not walk. On cross-examination, she denied having knowledge of any land dispute between the complainant and the appellants. Her evidence was that the appellants ran away when she screamed.

6. PW3 Cornelius Kormot testified that on July 12, 2020 at around 10. 00am he was in the company of the complainant who was going to the market to purchase a goat. His evidence was that along the way, the appellants accosted and beat them. He ran away and was later informed that the complainant had been taken to the hospital at Kapenguria. He identified the appellants in court. Upon cross-examination, he stated that he did not know why the appellants beat the complainant and that there was no land dispute between the complainant and the appellants.

7. PW4 Dr Kimani Martin Chege presented a P3 form filled by Dr Lithole, a discharge summary and an ultra sound report as exhibits. He testified that the complainant had a swollen right scrotum which was tender on palpation and the injury was three hours old. Surgery was conducted on the patient. He also testified that the ultra sound report had a reference number showing that the scan was done at Kapenguria County Referral Hospital.

8. PW5 police constable Milton Otenyo testified that he investigated the matter. He told the trial court that one Amos Kormot reported that his brother had been assaulted and was admitted at Kapenguria County Referral Hospital. He booked the report and the complainant went to the police station after being discharged from hospital and recorded his statement. During his investigations, he established that the complainant was assaulted by the appellants. He later arrested and charged them. The witness acknowledged that there was a land dispute between the appellants and the complainant.

9. On cross-examination, PW5 testified that the assault report was made on July 18, 2020. He told the trial court that the appellants did not inform him that they had lodged complaints against the complainant at Kacheliba Police Station on July 12, 2020. PW5 stated that he was seeing the appellants’ P3 forms for the first time in court.

10. The 1st appellant testified in his defence as DW1. He stated that on July 12, 2020 he was at home building a hut in the company of the 2nd and 3rd appellants when the complainant and two others went and asked him why he was carrying out the construction. The complainant then punched him on chest and jaw. People came to the scene and the complainant and his group ran away. He proceeded to Kacheliba Police Station in the company of the 2nd and 3rd appellants where they reported the incident and they were issued with P3 forms. He produced a photograph of the house they were building and his P3 form as exhibits. He further testified that the complainant asked them to stop the work because their land dispute had not been settled. He produced, as exhibits, proceedings dated July 13, 2018, July 23, 2018 and March 8, 2018 in support of his assertion that he had a land dispute with the complainant. He also produced the 3rd appellant’s P3 form as an exhibit.

11. The 2nd appellant testified as DW2. He corroborated the account of events as narrated by the 1st appellant.

12. DW3 Lortareng Ngurianreng told the court that on July 12, 2020 at around 10. 00am he was assisting the 1st appellant to construct a house when the complainant came with Cornelius and Alfred. The complainant asked the 1st appellant what they were doing. The complainant then started assaulting the 1st appellant as the other persons who had come with him beat the 2nd and 3rd appellants. He stated that the appellants were injured. DW3 told the court that he left after separating the combatants. He also testified that he was aware that the 1st appellant had a land dispute with the complainant.

13. DW4 Alex Lokerno Katodi on his part testified that on July 12, 2020 he was assisting the appellants to construct a house when the complainant alongside two others arrived and a fight ensued. He ran away from the scene but not before noticing that the appellants had been injured.

14. The appellants filed their submissions on January 31, 2022 through which they argued that the prosecution witnesses were not honest as they denied knowledge of a land dispute between the complainant and the appellants yet the investigating officer acknowledged the existence of such a dispute. Further, that the defence had tendered documentary exhibits confirming that there was indeed a land dispute.

15. The appellants also submitted that the learned trial magistrate failed to consider and appreciate their defence to the effect that it was the complainant who attacked them. According to the appellants, they had adduced evidence to show that they had reported the matter earlier on July 12, 2020 and even produced P3 forms issued on the date they reported the incident. The appellants further submitted that a proper investigation was not conducted on this matter because the complainant reported the matter at Kapenguria Police Station instead of the nearest police station being Kacheliba Police Station where the appellants had reported their case.

16. The appellants additionally submitted that the learned trial magistrate erred in shifting the burden of proof to them which was against the doctrines of criminal law which require a complainant to prove his case against the accused and that an accused need not prove his defence beyond reasonable doubt. The appellants further submitted that the trial court erred in convicting them notwithstanding that the prosecution had not proved its case beyond reasonable doubt as required in law. In support of their submission, they relied on the case of Pius Mutua Mbuvi v Republic,Criminal Appeal No 88 of 2019 in which it was held that an accused person should be acquitted where the prosecution case has not been proved beyond reasonable doubt.

17. Turning to another point, the appellants submitted that the conviction by the trial court was against the weight of the evidence. They relied on the case of Okeno v Republic [1973] EA (full citation not provided) to urge this court to re-evaluate the entire evidence and find in their favour.

18. With regard to the sentence, the appellants submitted that the sentence was harsh and that the trial court failed to consider that the 3rd appellant was a minor. They relied on a birth certificate, which was produced as additional evidence in this appeal through an affidavit sworn by Margaret Chepchesundu, confirming that the 3rd appellant was a minor at the time the offence was allegedly committed. The appellants relied on the case of Abraham Njoroge v Republic, Criminal Appeal No 536 of 2013, and submitted that the 3rd appellant was therefore wrongly sentenced to imprisonment.

19. In conclusion, the appellants urged this court to allow their appeal and set aside the conviction and sentence of the trial court.

20. Through submissions filed on March 24, 2022, the respondent stated that the evidence adduced at the trial in support of their case met the threshold for proving the offence of grievous harm as defined under section 4 of the Penal Code. According to the respondent, there was undisputed evidence that the complainant sustained serious injuries, and that the appellants were placed at the scene of crime. The respondent also submitted that the trial court considered the evidence of the appellants and outlined its reasons for regarding it as being an afterthought.

21. On the issue of the 3rd appellant being a minor at the time of committing the offence, the respondent insisted that the 3rd appellant was properly convicted. The respondent, however, left the issue of the sentence of the 3rd appellant to the discretion of this court.

22. A perusal of the petition of appeal and the submissions of the parties disclose the issues for the determination of this court are as follows:a)Whether the prosecution proved its case against the appellants;b)Whether this court should interfere with the sentence imposed upon the appellants; andc)Whether the 3rd appellant was a child at the time of the commission of the alleged offence, and if so, whether imprisonment was an appropriate sentence.

23. This being a first appeal, the remit of the court is as was stated by the Court of Appeal in Thuo v Republic [2022] KECA 461 (KLR) thus:'This being a first appeal, this court is required to conduct a retrial, entailing an exhaustive appraisal and re-evaluation of the evidence. The court is not merely called upon to scrutinize the evidence to see whether it supports the findings and conclusions of the trial court. It must weigh conflicting evidence, make its own findings and draw its own independent conclusion. See Okeno vs. Republic [1972] EA 32 andKiilu & Another vs. Republic[2005]KLR174. In re-appraising the evidence, the court will however bear in mind and take account of the fact that it does not have the advantage that the trial court had of hearing and seeing witnesses as they testified. As a general rule therefore, the court will not interfere with the findings and conclusions of the trial court unless it is satisfied that they are based on no evidence or on a misapprehension of the evidence or that the trial court is demonstrably shown to have acted on wrong principle in reaching the findings it did. See Joseph Kariuki Ndungu & Another vs. Republic[2010]eKLR.'

24. The appellants were charged and convicted of the offence of causing grievous harm contrary to section 234 of the Penal Code which provides that:'Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.'

25. Section 4 of the Penal Code defines grievous harm as follows:''grievous harm' means 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.'

26. For a conviction under section 234 of the Penal Code to be sustained, the prosecution must have established that the complainant suffered grievous harm under the hands of the appellant.

27. As to whether the injuries suffered by the complainant amount to grievous harm, the complainant testified that the 2nd and 3rd appellants hit him on his hand with sticks while the 1st appellant hit his testicles with a stick. His testimony was that he was diagnosed with a burst testicle and he underwent an operation at Kapenguria County Referral Hospital. He was admitted in hospital for six days and upon discharge on July 18, 2020, he reported the matter at Kapenguria Police Station.

28. The fact that the complainant was assaulted was confirmed by PW2 and PW3. The extent and the nature of injury sustained by the complainant was affirmed by the medical evidence of PW4. The appellants did not rebut the extent and nature of the injury suffered by the complainant. Therefore, from the evidence of PW1, PW2, PW3 and PW4, it is apparent that the nature of injury suffered by the complainant qualifies as grievous harm as defined under section 4 of the Penal Code.

29. On the question as to whether the injuries were inflicted on the complainant by any or all the appellants, the complainant testified that it is the appellants who assaulted him as he was going about his business. PW2 and PW3 supported the complainant’s testimony. PW2 stated that she saw the appellants running after the complainant and beating him with sticks. On his part PW3 told the court that he was with the complainant when they were accosted and assaulted by the appellants.

30. In their defence, the 1st and 2nd appellants stated that it was the complainant who assaulted all the appellants while they were building a house. Their witnesses, DW3 and DW4, testified that it was indeed the complainant and others who assaulted the appellants.

31. From the evidence adduced at the trial, the prosecution and the defence confirmed that there was a physical confrontation between the complainant and the appellants. The appellants were therefore squarely placed at the scene where the complainant sustained the injuries. DW3 and DW4 stated that they witnessed the complainant and his group attack the appellants. On the part of the prosecution, PW2 confirmed witnessing the appellants hit the complainant with sticks. She also saw the appellants run away after the complainant fell down. The evidence in its entirety leads to one conclusion, that the injuries sustained by the complainant were inflicted by the appellants and no other person.

32. The appellants in their defence alluded to an alleged land dispute between the 1st appellant and the complainant. Whether or not such a dispute existed did not warrant the inflicting of injuries on the complainant. The existence of a land dispute by itself is not a legally recognized defence and the appellants cannot ride on it as the basis for injuring the complainant.

33. Another defence which the appellants appear to advance is that it is the complainant who trespassed into the 1st appellant’s home, provoked and assaulted the appellants. The appellants imply, without confessing to assaulting the complainant, that they might have acted in self-defence. In my view, the defence of self-defence could only have been available to the appellants if they had expressly stated that they attacked the complainant after he attacked them. They have not made such an admission. It is also noted that the claim that the complainant attacked the appellants is not sustainable considering that the P3 forms produced by the appellants do not show that any of the appellants sustained any injury.

34. Even if the complainant did indeed attack the appellants, the 1st appellant only received a punch on the chest and jaw. None of the other appellants sustained any harm. On the other hand, the complainant suffered a swollen right scrotum which was tender on palpation. The injury had to be treated through surgery. The injuries sustained by the appellants, if any, are not proportionate to the life lasting injury received by the complainant. I therefore find the evidence by the prosecution convincing. In the circumstances, I reach the same conclusion with the trial court that the prosecution proved its case against the appellants beyond reasonable doubt. The appellants’ appeal against conviction is therefore rejected and dismissed.

35. The next issue is whether the appellants have made a case for this court to interfere with the trial court’s discretion on sentencing. On sentencing, the appellants have raised two issues. First, that the trial court failed to consider that the 3rd appellant was a minor at the time of the commission of the offence. Second, that the sentence was harsh and excessive.

36. I start by addressing the issue of the 3rd appellant’s age at the time of the commission of the offence. It is true from the record of the trial court that the magistrate did not consider the information brought to the court’s attention during mitigation that the 3rd appellant was seventeen years hence a child. From the birth certificate that was produced before this court, the 3rd appellant was born on January 20, 2003 and was therefore seventeen years at the time the offence was committed on July 12, 2020.

37. Section 191(1) of the Children’s Act provides as follows:(1)In spite of the provisions of any other law and subject to this act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—(a)By discharging the offender under section 35(1) of the Penal Code (Cap 63);(b)by discharging the offender on his entering into a recognisance, with or without sureties;(c)by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap 64);(d)by committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;(e)if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;(f)by ordering the offender to pay a fine, compensation or costs, or any or all of them;(g)in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any act which provides for the establishment and regulation of borstal institutions;(h)by placing the offender under the care of a qualified counsellor;(i)by ordering him to be placed in an educational institution or a vocational training programme;(j)by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap 64);(k)by making a community service order; or(l)in any other lawful manner.

38. Although the 3rd appellant had turned eighteen at the time of sentencing, the role he played was not as pronounced as that of the other appellants and the trial court ought to have taken this into account and imposed a non-custodial sentence on him. A prison sentence was therefore not recommended, notwithstanding the holding in JKK v Republic [2013]eKLR and Republic v Dennis Kirui Cheruiyot [2014] eKLR that in serious offences an offender who commits an offence as a child but has attained the age of majority during sentencing may be imprisoned so as to make him understand the consequences of his mistakes and bear the weight and responsibility of his omission or lack of judgment.

39. I now turn to the argument by the appellants that the prison sentence passed by the trial court was harsh and excessive. The remit of an appellate court on sentencing was expressed by the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR as follows:'As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v Republic, Cr App No 188 of 2000 this court stated thus:It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.'

40. It is clear from the cited decision that an appellate court can only interfere with the sentencing discretion of a trial court where it is satisfied that the court acted on wrong principles; ignored material factors; took into account irrelevant considerations; or on the whole the sentence is manifestly excessive.

41. As regard the appeal against sentence by the 1st and 2nd appellants, I note that a person found guilty of grievous harm is liable to imprisonment for life in accordance with section 234 of the Penal Code. The trial court sentenced the appellants to imprisonment for 7 years and the sentence was within what is provided by the law.

42. The trial court record shows that the magistrate took into consideration the mitigation by counsel for the appellants prior to passing sentence. The court noted that the offence was serious in nature. On my part, I note that the complainant suffered an injury that took away one of his gonads. This is irreversible and renders him incomplete for the rest of his life. Seven years in prison, notwithstanding the fact that the 1st and 2nd appellants were first offenders, cannot be said to be harsh and excessive in the circumstances. I therefore find no reason to interfere with the trial court’s sentencing discretion. The appeal by the 1st and 2nd appellants against sentence therefore fail and is dismissed.

43. With regard to the 3rd appellant, the court ought to have taken into account the fact that he was a minor at the time of the commission of the offence and a youth at the time of sentencing. The fact that the 3rd appellant only hit the complainant on the hand distances him from the grievous harm caused to the complainant’s testicle and ought to have earned him a lighter sentence. For the stated reasons, I allow the 3rd appellant’s appeal on sentence. The imprisonment for seven years imposed on the 3rd appellant is therefore set aside.

44. In my view the 3rd appellant has learned enough from the period he was held in remand before he was released on bond and the period he spent in prison before he was released on bond pending appeal. The sentence already served is sufficient punishment and the 3rd appellant is thus set free unless otherwise lawfully held.

45. For purposes of clarity, the final orders of this court are as follows:i. The appeal by the 1st, 2nd and 3rd appellants against conviction is without merit and is hereby dismissed;ii. That the appeal by the 1st and 2nd appellants against sentence is without merit and is hereby dismissed; andiii. That the appeal by the 3rd appellant against sentence is hereby allowed and the imprisonment for seven years is set aside. The sentence already served by 3rd appellant is sufficient punishment and the 3rd appellant is set free forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12THDAY OF MAY, 2022. W KORIR,JUDGE OF THE HIGH COURT