[2015] KEHC 2158 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL APPEAL 198 OF 2013

NICHOLUS WATUMA MUTUA……..……...…………………………..............................…APPELLANT

VERSUS

REPUBLIC………………….………………………………………………………………RESPONDENT

(An Appeal arising out of the judgment and sentence of Japhet Bii RM in Criminal Case No. 543 of 2012 delivered on 28th August 2013 at the Senior Principal Magistrate’s Court at Kangundo)

JUDGMENT

The Appellant was first arraigned in the trial court on 30th October 2012 and charged with the offence of killing an animal with intent to steal contrary to section 289 of the Penal Code. The particulars of the offence were that on the 20th day of September 2012 at Wendano sub-location in Matungulu District within Machakos County, the accused killed an animal capable of being stolen namely two cows, with intent to steal carcass.

The Appellant was found guilty of the offence by the trial court, and sentenced to 3 years imprisonment. The Appellant being aggrieved has appealed the conviction and sentence meted by the learned trial magistrate. It was submitted by the Appellant’s counsel that the Appellant has since served his imprisonment, but would like to proceed with the appeal so that his guilt or otherwise can be determined.

The Appellant’s grounds of appeal as stated in his petition of appeal filed in Court on 8th April 2013 are that the conviction was based on hearsay evidence; the charge was not proven beyond reasonable doubt and the trial court considered extraneous matters in coming to its conclusion.

In addition the Appellant’s counsel, Anthony M. Mulekyo Advocates, filed written submissions on 4/2/2015 of even date. The Appellant submitted that the Evidence Act at sections 62 and 63 require oral evidence which must be direct, and hearsay evidence is not admissible. The Appellant stated that the trial magistrate paid attention to and hinged his judgment on information that is not direct by relying on the evidence of PW1 and PW3. Further, that the evidence of a participant in a crime must be treated as that of an accomplice and must be corroborated by independent evidence linking the accused to the crime. Reliance was placed on the decisions in Waringa vs Republic (1984) KLR 617 and Mwangi vs R (1984) KLR 595in this respect.

The Appellant also claimed that testimony of PW7 producing a report linking the strong smell from orifices to him was not conclusive. The Appellant’s counsel further submitted that the honourable magistrate concluded that the cows died after taking poisonous water, but that the said water was not examined by any competent witness in order to link the death to the Appellant. Therefore the charge had not been proven beyond reasonable doubt.

The State opposed the appeal and the learned Prosecution Counsel, Cliff Machogu filed submissions on 20. 4.2015 of the same date. He submitted that there was no hearsay evidence adduced since PW2 confirmed in his testimony that he told PW1 that he had been given poisoned water by the Appellant to give to the complainant’s cows. Further, that PW2 was called to testify as to what he told PW1.

On the ground of appeal raised that the trial magistrate relied on doubtful evidence, the counsel for the State submitted that section 141 of the Evidence Act provides that an accomplice shall be a competent witness against an accused, and that a conviction shall not be illegal merely because it is based upon the uncorroborated evidence of an accomplice. It was the counsel’s submission that the evidence by PW2 that he was given water by the Appellant to take to the complainant’s cows was corroborated by the evidence by PW1 and PW3 that they had found PW2’s herding stick next to the carcasses of the complainant’s cows.

Lastly, on the ground that the trial magistrate introduced extraneous matters, it was submitted by the State that PW7, who was the veterinary officer testified that upon conducting post mortem on the carcasses, there were rumen fluids with a strong smell from the orifice which he confirmed was acaricide, which was a poison. It was submitted by the State that the case had been proven beyond reasonable doubt by the prosecution and the appeal should fail.

As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic[1973] EA 32).

A brief summary of the evidence adduced before the trial court is as follows. The prosecution called eight witnesses. PW1 was the complainant, Shadrack Munuve Ndunda, and he testified that on 20/9/2012 he woke up and on checking his two milking cows in the pen he found them to be well. However he was later called from work with the message that his cows were not well. When he went home he found one of the cows had died and the other one was about to die. He reported the matter to the police who then told him to report to a vet. He then reported to Dr. Githinji of Kisukioni.

PW1 testified that upon examining the cows the vet told him that they had been poisoned. At the time he did not know who had poisoned his cows but after a week, one of the cattle herders who worked for the Appellant, informed him that he had been given poison by the Appellant to give his cattle. Further, that they had an agreement on the same and he produced a letter in evidence. PW4 stated that they had found a herding stick belonging to PW2 (the cattle herder employed by the Appellant) at the grazing ground. He said his cattle on the material day were grazing on the Appellant’s land.

PW2 was Wambua Kinyusa who stated that he had been employed as a cattle herder by the Appellant. He testified that on the material day the Appellant gave him water to give to the complainant’s cattle. He said that it was the first time he had taken water to the complainant’s cattle. Further, that he had recorded a statement on the same to the police.

PW3, Phoebe Mumo, testified that on the material day at 7. 00 a.m. she woke up, milked the cattle and took them to graze in a nearby field then went away. Later, her child came looking for her telling her that the cattle had fallen. She went home and found one cow was already dead and the other was on the verge of death. She then said she called her husband who reported the matter. She said that they had an issue with the Appellant over payment for the grazing field.

PW4 was a minor, Teddy Munuve Mulwa, who said that on the material day he returned home and saw that one of the cows had fallen. He stated that the second cow also fell shortly thereafter. Upon checking what was wrong he found PW2’s herding stick near the fallen cow.

PW6 was Geoffricalis Kimeu who testified that he had received a report from PW5, Martin Muli Kunusa, that cattle herded by his brother PW2 had died. PW5 confirmed these facts in his testimony.

PW7, Kithinji Robert Kirima, a veterinary officer at Matungulu District stated that he had made a report about two dead cows and that he had done a post mortem on the same, in which the findings were that there was rumen with a strong smell from the orifice. He described it as acaricide smell. He stated that the carcasses had no abnormality save for the smelly fluid. He produced the post mortem report as an exhibit.

PW8, PC James Miano, was the investigating officer and he stated that on the material day a case of killing of animals was reported. He confirmed that PW7 was the veterinary officer who conducted the post mortem, and that upon conclusion the Appellant was found culpable.

The trial court found that the Appellant had a case to answer and complied with section 211 of the Criminal Procedure Code in that respect. The Appellant gave sworn evidence and called one witness. He stated that on 20/9/12 he went to the cattle field and found his wife and Wambua. He asked Teddy (PW 4) what the issue was, and PW4 asked him “nani amepiga ngombe zetu?”(Kiswahili for “who has hurt our cows?’). He also stated that PW3 threatened him for the death of the cattle. The Appellant further stated that he saw two cows dying and had only been with Wambua on the material day and did not talk to him.

DW1 was Jane Wavinya Watuna, the wife to the Appellant, who testified that on the material day PW 4 came to their house and talked to the Appellant. Further, that the Appellant left shortly thereafter. She stated that she did not see the Appellant talking to their farm help, nor was she aware of instructions issued to the farmhelp by the Appellant. She said that they had no issues with the complainant.

The main issue in this appeal is whether there was sufficient evidence to sustain the conviction of the Appellant. The Appellant has argued in this regard that there was no evidence linking him to the death of the cows belonging to the complainant, and that the evidence relied upon by the learned trial magistrate was not direct, sufficient or conclusive to support the conviction.

It is not in dispute that the Appellant was charged with the offence of killing an animal with intent to steal under section 289 of the Penal Code which provides as follows:

“Any person who kills any animal capable of being stolen with intent to steal the skin or carcass, or any part of the skin or carcass, is guilty of an offence and is liable to the same punishment as if he had stolen the animal.”

There are two elements that need to be proved in the commission of the offence. The first is that of the killing of an animal capable of being stolen, and the second element is the intention to steal the skin or carcass of the said animal or part thereof. This offence is provided under Part XXVII of the Penal Code which is titled “Offences Allied to Stealing”, and the act of killing in the said offence is the act that appropriates the property of another. In the instant appeal the property that was alleged to be so appropriated was the cows of the complainant.

I have analysed the evidence tendered by the prosecution as to the said killing of the complainant’s cows, and note that the main evidence in this regard was given by PW1, PW2 and PW7. PW1 stated as follows in this regard:

“At the time I did not know who had poisoned my cattle. After about one week I received information from one cattle herder that he was given the poison by the Accused (Watuma) to give it to my cattle.”

PW2, the cattle herder referred to by PW1, on his part testified as follows:

“I know the accused. He was my employer. I was his cattle herder. On 20/9/2012 one Watuma came home. Watuma is the accused. He gave me water to take to Munuve’s cattle. He told me to take the water and come back. That was the first time I took water to the Munuve’s cattle. The water was in a basin. The cattle (2) died later”

PW7 testified as follows:

“I made a report about two cows which had died. I was called upon to go do examination. The history was given to me by Shadrack Munuve that he had tethered his cows near a neighbour’s on 20/9/2012. I went there and did a postmortem. The findings were that there were some rumen fluids with a strong smell from the orifice. I can describe it as an acaricide smell”

These findings were also repeated in his postmortem report produced as Exhibit 1 of the prosecution.

From the said evidence it is evident that the fact about the water being poisoned was not testified upon by PW2, and was therefore clearly hearsay evidence by PW1. In addition, the entire evidence linking the Appellant to the death of the two cows was circumstantial evidence, namely that he gave water to PW2 to take to the cows, and the cows later died. No one testified to seeing the Appellant giving poisoned water to the cows.

I am in this regard guided by the principles that apply before a court can rely on circumstantial evidence as was stated by the Court of Appeal in Erick Odhiambo Okumu vs Republic (2015) eKLR (Mombasa Criminal Appeal No. 84 of 2012) as follows:

“It has long been accepted that the guilt of an accused person does not have to be proved by direct evidence alone. Circumstantial evidence, namely evidence that enables a court to deduce a particular fact from circumstances or facts that have been proved, can form as strong a basis for establishing the guilt of an accused person as direct evidence. Indeed, as this Court stated in MUSILI TULO V. REPUBLIC (supra),:

“[C]ircumstantial evidence is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”

But for circumstantial evidence to form the basis of a conviction, it must satisfy several conditions, which are intended to ensure that the circumstantial evidence unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In ABANGA ALIAS ONYANGO V. REPUBLIC, CR. APP. NO 32 OF 1990 this Court tabulated the conditions as follows:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

(See also SAWE V. REPUBLIC [2003] KLR 364and GMI V. REPUBLIC, CR. APP. NO. 308 OF 2011 (NYERI)).

Before a court can draw from circumstantial evidence the inference that the accused is guilty, it must also satisfy itself that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt. (See TEPER V. R. [1952] All ER 480and MUSOKE V. R [1958] EA 715). In DHALAY SINGH V. REPUBLIC, CR. APP. NO. 10 of 1997 this Court reiterated this principle as follows:

“For our part, we think that if there be other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and an accused is entitled to an acquittal.”

Applying these principles, I note that in the instant appeal no evidence was brought to show that the water that the Appellant was alleged to have given to PW2 was poisoned, and that the poison was the same one as that testified by PW7 to have been in the carcass of the dead animals. In addition, no forensic proof of the said poison was also presented by PW7 who appeared to have relied on his sense of smell to reach the conclusion that the cows were poisoned.

Lastly, there was an intervening period between the alleged time of the offence and the revelation by PW2 of the Appellant’s participation in the same, that serves to weaken the inference of guilt, as it is not clear why PW2 did not report the said incident immediately it happened. It is thus my finding that the evidence of PW1, PW2 and PW7 did not firmly establish the guilt of the Appellant.

As regards the second element of the offence, which is the intent to steal the carcass of the dead cows, no evidence was brought to show the intent on the part of the Appellant to permanently deprive the complainant of the skin or carcasses of the dead animal. In particular, no evidence was adduced to show that the Appellant was ever in possession of, or had any form of control over the said skin or carcasses of the dead animals.

In light of these findings, I find that there is no need to dwell on the arguments raised as to PW2 being an accomplice and the admissibility of his evidence, save to state that under section 141 of the Evidence Act, the uncorroborated evidence of an accomplice can be relied upon to sustain a conviction.

In the premises, I agree with the Appellant’s submissions that the elements of the offence he was charged with were not proved beyond reasonable doubt for the above reasons. I accordingly quash the conviction of the Appellant for the offence of killing an animal with intent to steal contrary to section 289 of the Penal Code, and set aside the sentence imposed upon him for this conviction. I also order that the Appellant be and is hereby set at liberty forthwith unless otherwise lawfully held.

It is so ordered.

DATED AT MACHAKOS THIS 30th DAY OF SEPTEMBER 2015.

P. NYAMWEYA

JUDGE