[2023] KEHC 26858 (KLR)

Obei v Republic (Criminal Appeal E036 of 2023) [2023] KEHC 26858 (KLR) (Crim) (11 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26858 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E036 of 2023

LN Mutende, J

December 11, 2023

Between

Alfred Ombundu Obei

Appellant

and

Republic

Respondent

(Appeal against the original conviction and sentence in Criminal Case No. 6414 of 2012 at the Chief Magistrates’ Court Makadara, by Hon. E. Kimaiyo Suter–RM on 12th October 2022)

Judgment

1. Alfred Ombundu Oberi, the Appellant, was initially charged with the offence of assault causing actual bodily harm that was substituted by a charge of Causing Grievous harm contrary to Section 234 of the Penal Code. Particulars of the offence being that on the 1st day of November, 2012 at Jericho Estate, within Nairobi Area, he did grievous harm to David Mathendeu Kitoo.

2. Facts giving rise to the Prosecution’s case were that PW2 Rose Mbithe Ndolo, the complainant’s wife, knew the appellant as he had done some work for her for which she paid. Thereafter he started sending her inappropriate text messages. She reported the matter to the police who arrested and released warned and released him. Regarding the issue in question, on the 1st day of November, 2021, at 7. 00 am PW2 was taking her child to school when she realized that the appellant was following her. She quickly made the child cross the road and run to school, then she hurried back home but the appellant pursued her. On reaching near home the appellant confronted her and demanded to know why she reported him to the police. She was hit from behind with an umbrella and she screamed.

3. PW1 David Mathenge Kitoo, the complainant, ran out to find the appellant, a familiar person assaulting his wife. In an endeavour to separate them, the appellant hit him on the right hand with the umbrella that he carried. People intervened and chased the appellant away. He reported the matter to Jogoo road Police Station and sought treatment at Jericho Health Centre but was referred to Metropolitan Hospital where he was treated. Subsequently he was examined by PW6 Dr. Joseph Maundu who found his right hand swollen. The X-ray done of the small finger revealed fracture of the same.

4. Upon being placed on his defence the appellant stated that he was arrested and taken to Jogoo Police Station where it was alleged that he had assaulted the complainant and released on a cash bail of Ksh.5,000/- He called upon the court to scrutinize statements recorded by the witnesses which he urged that were inconsistent as to the time of the act. That he had three advocates who removed themselves from the matter hence declining to represent him with no apparent reasons. That he was subsequently assaulted by the witnesses in the matter when the case was ongoing.

5. The trial court considered evidence adduced and found that evidence by the prosecution left no doubt that the complainant was assaulted by the appellant. That the difference in time alluded to between 6:30 am to 7:00 am was a minor difference, hence the verdict of guilty was returned.

6. Aggrieved, the appellant proffered an appeal on grounds that the prosecution evidence was below the requisite standard in criminal cases; evidence was overly contradictory, inconsistent and in breach of Section 163 (1) of the Evidence Act, hence insufficient and inconclusive to sustain conviction which occasioned a miscarriage of justice; and, that medical evidence was gathered from a private hospital which lessened its probative value as required by law.

7. The appeal was canvassed through written submissions. The appellant questioned the medical report adduced in evidence which he dismissed as having been edited or forged as it was computer generated. That the medical Doctor who attended to the complainant was not called to testify, and, PW6 only relied on the report from Metropolitan hospital and the medical history by the complainant. That an umbrella that was alleged to have inflicted the injury is a small object that could not cause the alleged injury suffered. That discrepancies in the matter should be resolved in favour of an accused person as held in the case of Pius Arap Maina v Republic (2015) eKLR

8. The appeal is opposed by the respondent who argue that the incident took place at daybreak hence the accused was positively identified. That witnesses were consistent and did not give contradictory evidence which did not leave a doubt that the complainant was assaulted.

9. Further, that evidence of PW6 was supported by treatment notes from Metropolitan hospital, hence proof that injury sustained was to the degree of harm.

10. As to the allegation that the police were fond of arresting the appellant, it was urged that it could not absolve him from the fact of having assaulted the complainant.

11. This being a first appellate court, it is duty bound to re-evaluate afresh evidence adduced before the trial court and come up with its independent conclusions bearing in mind that it did not have the opportunity of seeing or hearing witnesses who testified. This was well stated by the Court of Appeal in the case of Okeno v Republic [1972] EA 32 as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted afresh and exhaustive examination (Pandya v Republic [1957] EA 336) and the appellate court’s own decision on evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala v Republic [1957] EA 570). It is not a function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. (see Peter v Sunday Post [1958] EA 424).”

12. The offence of grievous harm is created by Section 234 of the Penal Code that enacts as follows:Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

13. Therefore, ingredients of the offence of grievous harm are:(i)Whether the victim sustained grievous harm.(ii)Whether the harm occasioned was caused unlawfully.(iii)Positive identification of perpetrator of the act.

14. 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;”

15. The complainant testified to have been assaulted by the appellant as he intervened to rescue his wife, PW2. His evidence was supported in material particulars by PW2, and, PW3 Mary Wamiite Mbusia their neighbour who heard PW2 screaming and went to check on what was happening only to find the appellant assaulting PW2. She witnessed the complainant arrive and his hand bleeding. She alluded to having seen the appellant with an umbrella. PW4 Joseph Guthiru Mwangi Shira was passing by when he heard screams. He saw the appellant holding PW2 and as he contemplated to go and assist PW2 he saw the complainant reach them. He testified to having seen the appellant carrying an umbrella and he also saw some blood on the person of the complainant.

16. Evidence adduced confirmed the fact of a confrontation having occurred between the appellant and PW2 resulting into PW2 screaming, an occurrence that attracted the attention of the complainant who went to her rescue but was physically attacked. The defence put up did not suggest the act committed by the complainant when he went to rescue PW2. that would necessitate the attack. Therefore, what happened was an assault against his person.

17. Following the incident the complainant sought treatment at Metropolitan Hospital. PW6 Dr. Maundu who filled the P3 form examined the complainant physically and also saw treatment documents issued at Metropolitan hospital. It was established that the complainant sustained an injury on the right hand and the small finger was fractured. The injury sustained was classified as grievous harm.

18. The appellant questions the authenticity of the medical document being a print out. The document bears a stamp impression of the hospital. It is not clear how the document came to be on record as it is not marked at all but there is evidence of the P3 which is authentic hence proof that the complainant suffered grievous harm.

19. Facts presented show that the appellant acted by insulting PW2 and attacked the complainant who went to her aid. His action did not conform to the law hence the action was unlawful.

20. On the question of discrepancies pointed out, in the case of Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal expressed itself thus:“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people can perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

21. As correctly found by the learned trial magistrate, discrepancies regarding time as stated by witnesses were not fatal to the case as it was a minor disparity.

21. On the question of sentence, the appellant was fined Ksh.200,000/- and, in default to serve two (2) years imprisonment. Section 28(2) of the Penal Code provides that:In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale:..........Amount Maximum period ....... Exceeding Sh. 15,000 but not exceeding Sh.50,000 ...... 6 months Exceeding Sh. 50,000 ... 12 months

23. From the foregoing, it is apparent that the default sentence granted by the lower court was erroneous which I hereby set aside and substitute with a fine of Ksh. 200,000/- and, in default to serve one (1) year imprisonment. For that reason, the appeal succeeds to that extent. Otherwise the appeal on conviction is bereft of merit. Accordingly, it is dismissed.

24. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 11th DAY OF DECEMBER, 2022. L. N. MUTENDEJUDGEIn the presence of:Maureen Muhia for appellantMs. Kibathi for DPPCourt Assistant – Mutai