[2023] KEHC 26549 (KLR)

Odhiambo v Republic (Criminal Appeal E041 of 2023) [2023] KEHC 26549 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26549 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E041 of 2023

RE Aburili, J

December 4, 2023

Between

Caroline Awuor Odhiambo

Appellant

and

Republic

Respondent

(An appeal against the conviction and sentence by the Hon. J. Kimetto delivered on the 10th August 2023 in the Principal Magistrate’s Court in Maseno in Criminal Case No. E705 of 2021)

Judgment

Introduction 1. The appellant herein Carolyne Awuor Odhiambo was charged with the offence of threatening to kill contrary to section of 223 (1) of the Penal Code. The particulars of the charge are that on the 25th October 2021 at Usoma area in Kisumu West sub – County within Kisumu County, without lawful excuse, the appellant threatened to kill Macreen Hemstone Odhiambo.

2. The appellant pleaded not guilty to the charge and the case proceeded to full trial where the prosecution called three (3) witnesses in support of its case. Placed on her defence, the appellant opted to remain silent.

3. In her judgement, the trial magistrate found that the prosecution had proved the charge against the appellant and proceeded to sentence the appellant to seven (7) years’ imprisonment.

4. Aggrieved by the trial court’s conviction and sentence, the appellant filed her Petition of Appeal dated 21st August 2023 n the even date raising the following grounds of appeal:i.The learned trial magistrate erred both in law and in fact in failing to appreciate that the charge and particulars set out in the charge sheet were inapplicable to the facts of the case as presented by the prosecution.ii.The learned trial magistrate erred both in law and in fact in failing to appreciate that the prosecution failed to proof its case against the appellant beyond reasonable doubt.iii.The learned trial magistrate failed to appreciate the several material contradictions in the prosecution case that raise a reasonable doubt that she ought to have resolved in favour of the appellant.iv.The trial magistrate erred both in law and fact in shifting the burden and incidence of proof to the appellant.v.The trial magistrate erred both in law and fact in heaping evidential value and buttressing a weak prosecution case as against the appellant.vi.The trial court erred both in law and fact in disregarding the defense case, the evidence tendered by the defence and by downplaying the expert evidence tendered in support of the appellant’s defence.vii.The decision of the trial magistrate is against the weight of the evidence on record.viii.The sentence imposed upon the appellant is manifestly harsh and excessive taking into account the probation officer’s report filed in court.

5. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 6. The appellant through her counsel Mr. Onsongo, filed submissions dated 4th October, 2023 challenging the conviction and sentence imposed on the appellant. Counsel framed the following issues for determination, maintaining that the prosecution failed to discharge the burden of proof and failed to proof their case beyond reasonable doubt.i.When and where was the alleged offence committed?ii.Did the prosecution discharge the burden of proof to the required standard?iii.Was the sentence manifestly harsh and excessive in the circumstances?iv.Date and place of alleged offence.

7. On the first issue, it was submitted that the particulars of the Charge Sheet are that alleged offence was committed on 25/10/2021 while; according to PW 1, “On 25/10/21, my daughter, Macreen Hemstone disappeared from home. When she came back, she told me the neighbour had taken her to the husband and later threatened to kill her. She went away for 6 months. I looked for her but did not find her but she just came back after six months…” which, according to counsel, means that on 25/10/2021, PW 2 was not at home in Usoma area in Kisumu West, the place where the offence is alleged to have been committed. It was further submitted that during cross-examination, this witness testified that “My child disappeared from home on 2/2/21. You took her to Eldoret.”

8. Counsel for the appellant further identified at page 10 line 25 of the Record of Appeal, where the Complainant stated that “… I left home in February then I came back I December…” which means that she was not in Usoma area, Kisumu West in October 2021, the date the alleged offence was committed.

9. Another discrepancy noted was that according to PW 3, the investigating officer stated that.. “On 15/10/21 I was at Kogony and preparing report office duties. The complainant Macreen accompanied by her mother Irene came to report a matter of threatening to kill …” which means that the alleged offence must have been committed prior to 15/10/21. Later on in her testimony, PW 3 states that “I was assigned to investigate the matter and I recorded statements of various witnesses and on 25/10/21 the accused person again threatened the complainant…”

10. Counsel submitted that the Charge sheet clearly shows that the Appellant was arrested on 25/10/2021 and yet it is alleged that, that is the date she threatened the complainant.

11. It was submitted that in the face of all the foregoing uncertainties, is it not possible to place a finger on the date of the alleged incident, that the incident may not have occurred as alleged and that it was not proved that the Appellant uttered the words she is alleged to have uttered and if so, when and where.

12. On whether the prosecution discharge the burden of proof beyond reasonable doubt, it was submitted that the prosecution case is that it was PW 2 Macreen Hemstone who told PW 1 of the alleged treat to kill. That PW 1 does not testify that she ever heard the Appellant utter the words set out in the Charge Sheet, “I will kill you”. That the entire body of the testimony by PW 1 shows that she could not have been at and was never at the scene where the offence was allegedly committed since in her testimony, PW1 states that “On 25/10/21 my daughter Macreen Hemstone disappeared from home. When she came back she told me the neighbour had taken her to the husband and later threatened to kill her” which means that she was narrating what PW 2 told her.

13. It was submitted that all the evidence by PW 1 that is relevant to the offence of threatening to kill is what she was told by PW 2, as PW1 was not at the scene which leaves the evidence of PW2 as the only person who could have heard the Appellant utter the words that constitute the offence of threatening to kill yet according to PW 2 who is the complainant, she was taken from their home in February 2021 and returned in December 2021. It was submitted that for the period between February 2021 and her return in December 2021, PW2 was in a place she referred to as Eldoret, she was not with her mother (PW 1) and hence she could not have been with her Father. That this discounts the evidence by PW 3 at page 14 line 26 in which she stated that “According to the complainant, it is her mother and father who heard you threatening her”. That they could not have been in Eldoret with PW2 between February 2021 and December 2021.

14. According to counsel for the appellant, the evidence of all the prosecution witnesses paint them as being unreliable. That they contradict each other on material aspects, the dates, the places or places where the alleged offence was committed, the words allegedly uttered by the Appellant, and the period when PW 2 was absent from Usoma in Kisumu West. That the evidence of such witnesses should be treated with serious circumspection. Reliamce was placed on the case of Ndungu Kamanyi vs Republic [1976-80] 1 KLR where it was held that:“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression on the mind of the court that he is not a straight forward person, or raise a suspicion about his trust worthiness or do something which indicates that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence.”

15. It was submitted that the contradictions are material and go to the root of the entire case, the substance and crux of the offence with which the Appellant was charged. Further reliance was placed on Richard Munene v Republic [2018] eKLR, where the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness that:“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it”.

16. On Failure to call crucial and competent witnesses, it was submitted that PW 2 and PW 3 mentioned her elder brother and her father as among the persons who had witnessed the actions of the Appellant, yet the prosecution failed to call these two persons as witnesses. It was therefore submitted that the evidence of such witnesses should be treated with serious circumspection. Reliance was placed on Bukenya and Others Vs Uganda [1972] E. A. 549, where it was held that the prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. That where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution case.

17. On Failure to tender evidence in defence by the appellant, it was submitted that Article 50 (2) (a) of the Constitution guarantees the appellant the right to be presumed innocent until the contrary was proved while under Article 50 (2) (i), she had the right to remain silent, and not to testify during the proceedings. That the mere fact that she did not tender any evidence in her defence does not in any way lessen the burden placed on the prosecution to prove their case beyond reasonable doubt. That the existence of a scintilla of evidence doesn’t tilt the scale in favour of the prosecution. Reliance was placed on Republic v Kyalo Musili Musyimi [2016] eKLR, where the High Court quoted with approval the decision in Ramanlal Trambaklal Bhatt vs. Republic (1957) EA 334 where it was stated that:“.... The question whether there is a case to answer cannot depend only on whether there is ‘some’ evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence.”

18. On the Language of the court during proceedings, it was submitted that on the date of the plea, the court recorded that “The substance of the charge(s) and every element thereof has been stated by the court to the accused person in the language that he/she understands, who being asked whether he/she admits or denies the truth of charges(s) replies …. In dholuo’ which means that the Appellant elected to have the proceedings interpreted to her into dholuo, the language that she was most conversant with. However, in the proceedings taken subsequent during the trial, and in particular on 7/11/2022, 14/11/2022, 17/5/2022 and 7/8/2023, it is indicated that the translation was from English to Kiswahili.

19. It was submitted that it is not shown that at any time during the proceedings, the Appellant was accorded a chance of changing and or that she ever applied and or sought to change her preferred language. That the conduct of the proceedings in a language other than the one preferred by the Appellant was an affront to her constitutional rights to a fair hearing as espoused in Article 50(2)(m) of the Constitution. Counsel relied on Fredrick Kizito v. Republic Criminal Appeal No. 170 of 2006, where the Court of Appeal authoritatively stated thus:“In the matter before us, while, by inference, we think that the appellant was possibly allowed the services of an interpreter, in absence of a note to that effect, we entertain a doubt that that was so. It is a matter which has caused us much anxiety more so considering that the appellant has a sentence of death hanging over his head. This and several other cases we have handled before, show the grave danger inherent in the failure by the trial court to record the essential details in proceedings before it, for instance, the name of the officer trying the case; the prosecutor and his rank; the court interpreter or clerk and the language or languages of the proceedings; the language used by each witness; that judgment was pronounced; the date thereof and in whose presence et cetera. These are as important as the evidence and form part of the fair process of justice, the omission of which might affect an otherwise sound conviction.”

20. It was submitted that in the previous constitutional dispensation, the issue of language was as central as it is in the current dispensation as was held in Albanus Mwasia Mutua v. Republic Criminal Appeal No. 120 of 2004, where the High Court, citing the case of Swahibu Simbauni Simiyu and Another v. R. Court of Appeal, Criminal Appeal No. 243 of 2005, rendered itself thus:“…since the record of the magistrate did not show the language used by the two appellants, there was a violation of the appellant’s constitutional rights under the foregoing section [section 77 (2)(b) of the Constitution] and the appeal was allowed. Once again, the nature and strength of the evidence brought by the prosecution in support of its charge did not really count.’’

21. Further reliance was placed on Gabriel Owang Otila & another v Republic [2009] eKLR where the Court of Appeal (differently constituted) citing several other decisions by the same court observed and held inter alia:“The issue of interpretation in criminal trials is also provided for in section 198 of the Criminal Procedure Code which states as follows: -“Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands.”This Court has in the past had several occasions to deal with similar matters and has been consistent in its judgments that the need to comply with the requirements of section 77 (2) (b) and (f) of the Constitution as well as with the provisions of section 198 of the Criminal Procedure Code, is a matter that the Court has no option but to accept and ensure. In the case of Patrick Kubale Wesonga Criminal Appeal No. 204 of 2005 heard at Kisumu this Court stated: -“As the Court did not state the language used at the trial apart from English, one cannot state for certain that the appellant understood the language that was used to conduct the entire trial. Section 77 (2) (b) of the Constitution, which we have cited above, emphasizes that the offence is explained to an accused person in a language that he understands. Section 77 (2) (f) goes further and states that an accused person is entitled to have an interpreter if he cannot understand the language used in trial. Thus, the need for the trial court to indicate the language in which the trial proceeded cannot be waived even if an accused person has an advocate. As we have stated, there is nothing in the proceedings except one day when the case was not for hearing, to show the language in which the proceedings were conducted. That omission would also vitiate the trial before the subordinate court.”The same view was also held by this Court in the case of Degon Dagane Nunow v. R. Criminal Appeal No. 223 of 2005 and several other decisions before and after it.”

22. In this case, it was submitted that there was outright violation of the Appellants’ right to a fair hearing as enshrined at Article 50 (2) (m) of the Constitution. That it cannot be presumed that the Appellants understood the language of the court throughout the trial hence there was a mistrial. Reliance was placed on Albanus Mwasia Mutua v. R. (supra) this Court had this to say about the enforcement of constitutional provisions:“At the end of the day, it is the duty of the courts to enforce the provisions of the Constitution, otherwise there would be no reason for having those provisions in the first place. The jurisprudence which emerges from the authorities we have cited in the judgment appears to be that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence which may be adduced in support of the charge.”

On Sentence 23. It was submitted that should the court not find merit in the appeal against conviction, we submit that it should interfere with the sentence. In Godfrey Ngotho Mutiso v Republic [2010] eKLR, this Honourable Court, differently constituted quoted the decision in Attorney General vs. Susan Kigula & 417 Othersrs - Supreme Court of Uganda, Constitutional Appeal No. 3 of 2006 - 1/21/2009 where it was held that: -“Furthermore, the administration of justice is a function of the Judiciary under article 126 of the Constitution. The entire process of trial from the arraignment of an accused person to his/her sentencing is, in our view, what constitutes administration of justice. By fixing a mandatory death penalty, Parliament removed the power to determine sentence from the Courts and that, in our view, is inconsistent with article 126 of the Constitution.”

24. Further reliance was placed on Alister Anthony Pereira vs State of Maharashtra Criminal Appeal Nos. 1318-1320 of 2007 at paragraphs 70-71 where the Court stated as follows on sentencing:“70. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.”

25. It was submitted that Sentencing is a matter within the discretion of the trial court is not in doubt, as was recognized in many jurisdictions. Reliance was placed on S vs Mchunu and Another (AR24/11) [2012] ZAKZPHC 6, where the Kwa Zulu Natal High Court held that:“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. The purpose behind a sentence was set out in S v Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35: ‘Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. ’The judgment continues: ‘. . . [i]t is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.’

26. The foregoing position was echoed in Court of Appeal’s decision in Dismas Wafula Kilwake vs. Republic [2019] eKLR in which it expressed itself as follows:“Here at home in a judgment rendered on 14th December 2017 in Francis Karioko Muruatetu & Another v. Republic, SC Pet. No. 16 of 2015, the Supreme Court stated that; -“The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.”

27. Based on the foregoing authorities, Counsel for the appellant submitted that although the offence with which the Appellant was charged carries a maximum sentence of 10 years’ imprisonment, the circumstances of the offence, the Appellant being a first offender and the mitigation offered by the Appellant were not taken into account by the trial court that meted out a 7-year imprisonment. That the sentence was extremely harsh and excessive in the circumstances.

28. It was submitted that on 10/8/2023, the Learned trial Magistrate admitted into the proceedings taking into account a letter written by PW 1 and took into account its contents in deciding the sentence she was to mete out, without according the Appellant a chance of perusing the letter and appreciating its contents and or disputing the same, which was un-procedural.

29. It was submitted that the circumstances of the offence, the totality of the evidence, the contents and substance of the probation report, the mitigation by the Appellant were sufficient for the Appellant to be given a non-custodial sentence.

The Respondent’s Submissions 30. On the part of the Respondent State, it was submitted that the prosecution discharged the burden of proof against the appellant on the offence of threatening to kill. The respondent submitted that the evidence on record showed that the threat by the appellant was direct and it caused the complainant to receive a threat to kill her as was held in the cases of Nancy Wanja Githaka v Republic [2015] eKLR and that of R v David Kipsang Rono [2010] eKLR. Counsel for the respondent submitted that the evidence of PW1, PW2 and PW3 was credible and reliable.

31. With regard to alleged inconsistencies and contradictions in the prosecution evidence, it was submitted that no contradictions were present in their case and that even if there were any, they did not affect an otherwise proved case against the appellant as was held in the case Njuki & 4 Others v Republic [2002] 1KLR 771.

32. It was submitted that the trial court at no time shifted the burden of proof on the appellant.

33. The respondent’s counsel submitted that the sentence meted was commensurate with the offence and as such, the same ought not to be interfered with. It was further submitted that the sentence was not mandatory since section 223 (1) of the Penal Code provides for a sentence of 10 years.

Analysis And Determination Role Of This Court 34. As a first appellate court, Iam obliged to re-evaluate, reassess and re-examine the evidence afresh and arrive at my own independent conclusion. I am however reminded to bear in mind that I neither saw nor heard the witnesses they testified and therefore give due regard for that. See Okeno v R. (1972) E.A. 32.

Evidence Before The Trial Court 35. PW1 Irene Akinyi Adhola testified that the complainant was her daughter and that on the 25. 10. 2021 the complainant disappeared from home and on her return informed PW1 that the appellant had taken her to her husband and later threatened to kill her. It was her testimony that the complainant was away for 6 months.

36. PW1 testified that sometime later the complainant informed her that the appellant who was their neighbour had shown disdain for her and even threatened to kill her. It was her testimony that she witnessed the appellant spitting on the complainant.

37. In cross-examination, PW1 stated that when the complainant was missing, she had even inquired from the appellant as to her whereabouts but the appellant refused to cooperate.

38. PW2, the complainant testified that sometime in February 2021, the appellant made arrangements for her to be abducted and carried off to Eldoret by one Victor who was the appellants brother. She testified that in July 2021, she later managed to escape from Victor’s house in Eldoret with the help of a good Samaritan and came back home while pregnant. It was her testimony that Victor would lock her inside his house and continually defile her.

39. PW2 testified that the appellant had deceived her that if she refused to go or comply with Victor, the complainant’s younger brother would be killed or her parents would have to pay Kshs. 100,000 as her ransom.

40. PW2 testified that after her successful return home and subsequent giving birth, sometime in October, the appellant who was her close neighbour would threaten her that they would take her back to Victor’s house from where she would not return and that she would die and further that the appellant would kill her and her newborn.

41. PW2 testified that the appellant would spit on her and scorn her and that at times she would trail PW2 and sweep away her feet with a broom in disdain. She testified that she eventually told her mother PW1 about the threats and scorn by the appellant.

42. The complainant identified the appellant as the person who took her to Eldoret and the person who had been threatening her.In cross-examination, the complainant reiterated her testimony.

43. PW3 No. 100328 PC Magdaline Achieng testified that on the 15. 10. 2021 while at Kogony Police Post She received a complaint from the complainant and her mother regarding the appellant’s threat to kill the complainant as well as the incident of her abduction to Eldoret which incident the complainant’s mother had reported to the Station.

44. The prosecution then closed their case and the appellant was put on her defence and she exercised her right to remain silent.

Analysis and Determination 45. The appellant was convicted of the offence of threatening to kill contrary to section 223(1) of the Penal Code which provides that: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”.

46. The burden of proof lies on the prosecution to prove that the appellant threatened to kill the complainant and the standard of proof is beyond reasonable doubt.

47. The background reason as to why the complainant was being threatened is disclosed in the prosecution evidence that the appellant in collusion with one Victor who was her brother had abducted the complainant and taken her to Eldoret where the said Victor defiled her on numerous occasions and that after the complainant managed to escape, the appellant who was a neighbour at home started threatening her and treating her with disdain.

48. The evidence on record is also that the appellant did not merely utter the words in a joking or casual manner, but that she in fact treated the complainant with disdain to the point of spitting on her and even sweeping behind her feet behind her. PW1 testified that she did see the appellant spit on the complainant.

49. Placed on her defence, the appellant opted to keep quiet which was in her right to do so as correctly submitted by her counsel. What was left for the trial court was to consider the evidence as adduced by the prosecution witnesses and make a finding as to whether that evidence proved the guilt of the appellant beyond reasonable doubt. The trial court found that the prosecution had proved its case against the appellant beyond reasonable doubt hence the conviction and sentence imposed.

50. In her petition of appeal, the appellant pleaded that The trial court erred both in law and fact in disregarding the defense case, the evidence tendered by the defence and by downplaying the expert evidence tendered in support of the appellant’s defence and further the court shifted the burden of proof to the appellant.

51. In Philip Nzaka Watu v Republic [2016] eKLR it was held that“It is incumbent upon the prosecution to prove its case beyond reasonable doubt. Article 50(1) of the constitution provides for the right to remain silent and not to testify during the proceedings.”

52. Thus, the right of an accused person to remain silent does not in any way lighten the burden placed on the prosecution to prove its case against the appellant accused person beyond reasonable doubt.

53. In this case, I do not find any defence evidence which was to be considered but was ignored and neither was there any expert evidence adduced in support of the appellant’s defence. In addition, saying that the accused opted to remain silent is not shifting the burden of proof onto her as she also had the right to adduce and challenge evidence adduced by the prosecution, which she elected not to, in exercise of her constitutional right to remain silent.

54. Having evaluated the evidence as adduced by the three prosecution witnesses, I am satisfied that it established the ingredients of the offence of threatening to kill beyond reasonable doubt. Even if the evidence of PW1 was to be ignored, I find no reason to doubt the testimony of PW2 who from her testimony, as a minor, underwent terrible experience in the hands of the appellant and her brother in Eldoret before she escaped and returned to her home.

55. I therefore find that no burden of proof was shifted to the appellant to prove her innocence.

56. On the ground that the evidence adduced by PW1, PW2 and PW3 was contradictory on the date and place where the offence was committed, I find that albeit the testimony of the said witnesses was inconsistent especially on the date of the offence, that inconsistency was not material or fatal to the prosecution’s case as PW2 who was the complainant gave a history of when she was abducted and taken to Eldoret where the threats began until October 2021 when she escaped and returned home and that even while at her home, the appellant continued to threaten her with death.

57. In this case, although the appellant was not charged for threatening to kill the complainant in respect of the threats allegedly made to her in February, 2021, it is clear that the complainant suffered under the hands of the appellant and only those threats made in October after she had escaped from Eldoret to her home were the ones reported to the police for action.

58. The Court of Appeal acknowledges that in every case, there could be some inconsistencies in the evidence of witnesses who appear before the court and that unless the inconsistencies are material that they go to the root of the case, a trial should not be vitiated on that ground alone. Uniformity in evidence could also mean that the witnesses are couched. The Court of Appeal stated as follows in the case of Richard Munene v Republic [2018] eKLR:“Only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”

59. Accordingly, I find that there were no substantial contradictions and inconsistencies as to create doubt in the trial court’s mind and to the mind of this court as to the appellant’s guilt. Consequently, this ground fails.

60. On the language of interpretation by the court, the appellant submitted that the trial court did not use the language which had been used during plea taking which was dholuo. That subsequently, the court record shows the language used as English and Kiswahili interpretation.

61. In Abdalla Hassan Hiyesa v Republic [2015] eKLR the Court of Appeal stated that:“Article 50(2) (m) guarantees every accused person the assistance of an interpreter without payment if he does not understand the language used at the trial.

62. Section 198 of the Criminal Procedure Code is also relevant and provides that:“(1)Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands.(2)If he appears by advocate and the evidence is given in a language other than English and not understood by the advocate, it shall be interpreted to the advocate in English.(3)When documents are put in for the purpose of formal proof, it shall be in the discretion of the court to interpret as much thereof as appears necessary.(4)The language of the High Court shall be English, and the language of the subordinate court shall be English or Swahili.”

63. I have carefully perused the decision in Hawo Ibrahim v Republic [2016] eKLR where the Court of Appeal emphasised the importance of the trial court ensuring that the language understood by the accused person is the one used in the interpretation. The Court stated as follows:“This Court has emphasised many times before that the burden is on the trial court itself to show that an accused person has himself selected the language which he wishes to speak and in which proceedings are to be interpreted to him. These are not procedural technicalities and the trial court ought to demonstrate compliance by showing on the face of the record the language the accused has chosen to speak.”

64. I agree that the language of the court in interpretation ought to be stated. In this case, the language used for interpretation at the time of taking plea was Dholuo. Subsequently, the language is stated to be interpreted from English to Kiswahili and there is no indication that the appellant did not understand the Kiswahili language or and that she suffered prejudice as a result, for this court to invoke breach of her constitutional rights to interpretation.

65. I further note that the plea was not that of guilty, and in this appeal, besides the complaint in the submissions that the court changed the language of interpretation, there is no evidence that the appellant could not understand the Kiswahili language which was subsequently used for interpretation.

66. A similar situation arose in Nicodemus Dede Magio & another v Republic [2018] eKLR where W.Korir J (as he then was) had this to say:“The 1st Appellant submitted that he does not understand English. Whatever language was used, the court record confirms that the charges were read over and explained to the appellants and each of them responded by pleading not guilty. In some of the subsequent mention dates a language used was not indicated. It was incumbent upon the court to indicate the language used as the right to trial in a language understood by an accused person is protected by the Constitution. This right was even protected by the retired Constitution which was in force at the time the appellants were being tried. However, it is noted that when the witnesses testified the court record shows that the languages used were English and Kiswahili.As pointed out by Mr. Obiri for the State, the appellants actively participated in the trial. The 1st Appellant was actually represented by counsel. It cannot be said that the appellants never understood the proceedings and were thus disadvantaged in mounting their defence.”

67. The learned judge cited the case of Mwendwa Kilonzo & another v Republic [2013] eKLR where the Court of Appeal explained the applicable principle in this area by stating that:“We appreciate that the aspect of language and ensuring that an accused person is given the facility of interpretation when he requires it is central in ensuring that the accused person is not prejudiced because he could not follow proceedings due to language barrier. In fact such trial will end in an injustice particularly if the accused is found guilty. Courts therefore have a duty to ensure that an accused person is able to follow its proceedings in a language he understands. That is the law and the case of Bishar Abdi vs Republic Cr. A 57/2008 emphasizes it. In the present appeal however, we have come to the conclusion that the appellants did follow the proceedings before the learned trial magistrate conducted in a language they understood, though that was not noted on the record. As we have stated, they did not complain to that court; they cross-examined witnesses and their statements in defence were taken down. They did not raise the issue of language as a challenge either in the trial court or in the High Court where one of them had a lawyer. And there was always a court clerk on hand, whose role is to provide interpretation if required. Accordingly, we do not find that the appellants herein were prejudiced in this case. This ground therefore fails.”

68. The learned judge then concluded as follows and I concur that:“Considering the circumstances of the case before me, I also conclude that the appellants cannot be heard to complain that the failure of the Court to indicate the language used during the taking of plea and the mentioning of the matter prejudiced them in any way. One of them had an advocate who could have taken up the issue with the trial Court if indeed there was a language barrier. In fact, the language used when the witnesses testified is indicated to be English/Kiswahili. Their appeal on this issue therefore fails.”

69. In the instant case, as was in the above decisions, the appellant never complained that she never followed the proceedings as interpreted in Kiswahili.

70. Furthermore, the complaint on language has only come in the submissions. It was never a ground of appeal hence I find that the lamentation was an afterthought as it was not shown that the appellant did not understand Kiswahili and or that she suffered any prejudice as a result of the use of Kiswahili language for interpretation.

71. The appellant also complained that the prosecution failed to call crucial witnesses namely, the brother and father to the complainant to testify since she mentioned that they were present when she received the threats to kill her and that failure to call them should be interpreted to mean that had the prosecution called them, they would have given adverse evidence to the prosecution’s case.

72. The case of Bukenya & Other vs Uganda [1972] E.A.549 is the locus classicus on the issue of failure to call crucial witnesses where the Court of Appeal for Eastern Africa held that:“The prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case. Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.”

73. In Julius Kalewa Mutunga v Republic [2006] eKLR, the Court of Appeal held that:“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.”

74. In the case of Bukenya & Others vs Uganda (supra), the court was clear that the prosecution is not obliged to call a superfluity of witnesses. The adverse inference will therefore only be made by the court if the evidence by the prosecution is not or is barely adequate. Accordingly, adverse inference will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case.

75. Under Section 143 of Evidence Act (Cap 80) Laws of Kenya, no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.

76. In the case of Keter v Republic [2007] 1 EA 135 the court held inter alia that:“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

77. I have perused the trial court record of proceedings and judgment and Iam unable to find any such crucial witness whom the appellant on appeal claims was not called to prove any issue or particular matter so as to require the trial court or this Court to make any adverse inference that had such a witness been called, he or she could have given adverse evidence against the prosecution. I therefore find no substance in the complaint by the appellant’s ground of appeal and submission that crucial witnesses were not called. The ground of appeal is hereby dismissed.

78. Taking all the above into consideration, it is my finding that the appeal against conviction is not merited and the same is thus dismissed.

79. With regard to sentence, the maximum sentence for the offence of threatening to kill is 10 years’ imprisonment. In mitigation, the appellant informed the trial court that she took care of her sister’s children who were orphans and that she was also married with a 2 ½ year old child. The probation officer’s report dated 10. 8.2023 also recommended that the appellant was suitable to serve a non-custodial sentence.

80. The trial court in consideration of all the above sentenced the appellant to serve seven years imprisonment noting that the offence was commited against a minor.

81. Was this a harsh and excessive sentence in the circumstances? To answer this question, this court will examine the circumstances, under which the offence was committed, mitigations and any other relevant factors as stipulated in the Judiciary Policy Sentencing Guidelines. To satisfy myself as to whether I should interfere with that sentence, I hereby direct that a fresh probation officer’s report be filed, taking into account the complainant’s situation and a report from the Officer in Charge of Kisumu Women’s Prison be filed to enable this court make an informed decision.

82. Re Sentence on 19th December, 2023.

83. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 4TH DAY OF DECEMBER, 2023R.E. ABURILIJUDGE