[2022] KEHC 14445 (KLR)

Ogoncho v Republic (Criminal Appeal E012 of 2021) [2022] KEHC 14445 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 14445 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Appeal E012 of 2021

JN Njagi, J

July 7, 2022

Between

Grace Nyanchama Ogoncho

Appellant

and

Republic

Respondent

(Being an Appeal from the original conviction and sentence by Honourable M. O. Wambani, Chief Magistrate, in Nyamira CM’s Court Criminal Case No. 6 of 2016 delivered on 29th April 2021)

Judgment

1. The appellant was charged with the offence of intermeddling with the property of a deceased person contrary to section 45 (1) (a) of the Law of Succession Act. The particulars of the offence were that on the 3rd day of January 2016, at Getaari Village Bomabacho sub location in Nyamira South sub county Nyamira County disposed of 13 eucalyptus grandis (blue gum) trees valued at Kshs. 199,104/- the property of Charles Kiage Morias (Deceased) without the consent of Patrick Moirongo Kiage, the administrator of the estate. The appellant was found guilty of the offence and was placed on probation for a period of six (6) months.

2. The appellant was aggrieved by the decision of the trial court and lodged the instant appeal on the grounds that: -a.The learned trial magistrate erred in fact and in law by convicting the appellant based on a fatally defective charge which was anchored on a non-existent provision of law that is Section 45 (1) (a) of the law of Succession Act;b.The learned trial magistrate erred in law and in fact by convicting the appellant when the prosecution completely failed to prove that the trees that were alleged to have been disposed of formed part of the estate of the deceased;c.The learned trial magistrate erred in law and in fact by convicting the appellant with no witness connecting her to the alleged offence;d.The learned trial magistrate failed to consider the bad blood between the complainant and the appellant wherein the complainant was hell bent to harass and intimidate the appellant;e.The learned trial magistrate erred in law and in fact by convicting the appellant when no exhibits were produced in court; andf.The learned trial magistrate erred in law and in fact in convicting the appellant by relying on conjectures, suppositions and on extraneous matters.

3. The appeal was disposed of by way of written submissions of the advocates for the appellant, Mose, Mose & Mose Advocates. The respondent did not file any submissions.

Appellant's Submissions - 4. The appellant submitted that she was charged under a non-existent section of the law which was a violation of her inalienable right to fair trial as enshrined in Article 50 (2) (b) of the Constitution which guarantees every accused person's right to be informed of the charge with sufficient detail to answer it. Further that the charge sheet violated sections 134, 137(a)(1) (ii) and 214 of the Criminal Procedure Code. That she was entitled to be charged with an offence recognized under the law and furnished with all the necessary details of the offence so as to enable her appreciate the nature of the charges against her and to enable her prepare an appropriate defence. It was submitted that the trial court did not take into account the submissions by the appellant as nothing in the judgment touched on the issue that the charge was defective.

5. The appellant submitted that the prosecution failed to prove that the trees alleged to have been disposed of by the appellant formed part of the estate of the deceased. The appellant states that the Forest Officer Assessment Report dated 4th January 2016 revealed that the property for which the assessment was done was not indicated. This is a fatal omission since without the land registration number it is absolutely not possible to establish whether the property that was intermeddled with was that of the deceased. The appellant submitted that the identification of the property is the most vital ingredient to prove the offence of intermeddling with the property of the deceased. The appellant further submitted that the mere production of a Land Certificate and Certificate of Official Search belonging to the deceased could not have in any way assisted the trial court in determining whether the trees that were alleged to have been disposed of belonged to and formed part of the estate of the deceased. The appellant contends that there is a high probability that the parcel of land the assessment was done was totally different from the disputed parcel in the absence of land registration number in the trees damage assessment report.

6. The appellant further submits that the trial court failed to consider that in light of the fact that there existed bad blood and existing land disputes between her and the complainant, there was a high likelihood that the complainant could possibly have taken the forest officer to a different parcel of land where the assessment took place since the report had no indication whatsoever on which parcel of land the report related to.

7. The appellant reiterates the testimony of PW2 who testified that the appellant sold him the trees. He testified that he was called by his fellow businessman one Bundi who told him that his aunt was selling her trees. He testified that the son of the appellant, Bundi and Mr. Simon were present when he bought the trees. The appellant submits that considering that she and PW2 were the initial suspects in this case there was need to corroborate his testimony by calling those who witnessed the alleged oral agreement between her and PW2. No explanation was advanced as to why Simon and Bundi were not availed to corroborate PW2's evidence that there existed an oral agreement between PW2 and the appellant. The appellant further submits that the court ought to have treated PW2's evidence with extreme caution considering the high likelihood that his testimony could be well construed to be a plot to exonerate himself from being a co-accused in the matter. The appellant contends that all the other witnesses' testimony in regard to whether the appellant sold the trees were all hearsay and therefore the trial court should have accordingly disregarded their evidence.

8. The appellant submits that the prosecution did not produce any exhibit of the trees alleged to have been disposed of by her despite the investigating officer admitting that the lorry full of timber was guarded by police officers who made the arrests. The appellant contends that from the investigating officer's testimony, he admitted that they had no exhibits as no explanation was advanced as to how the lorry full of timber disappeared from the custody of the AP officers. The appellant further contends that the trial court ignored the fact that no exhibits were ever produced and proceeded to convict and sentence the appellant without any timber being produced in court as evidence that trees were actually cut down. The prosecution only produced photographs of timber which had no indication as to whether they were the ones recovered from the scene of crime or not.

9. The appellant contends that the trial court took the prosecution witnesses testimonies as gospel truth without giving the appellant any benefit of doubt. In doing so, the appellant contends that the trial court shifted the burden of proof to the appellant. Further that the trial court did not give any reasons as to how the decision was reached. Based on the foregoing reasons, the appellant prays that the appeal be allowed.

10. The issues that call for determination in the appeal are:a.Whether the charge is incurably defective.b.Whether the prosecution proved its case beyond reasonable doubt.c.Whether the appellant's defence was considered.

11. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated that: -“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

12. Similarly, in the case of Okeno vs Republic[19721 EA 32 where the Court of Appeal set out the duties of the appellate court as follows: -“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and 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 Peters vs Sunday Post [1958] EA 424. " This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174. ”

Whether the charges were incurably defective - 13. The appellant submits that the charges preferred against her were incurably defective as the charges have been anchored on a non-existent provision of law that is Section 45 (1) (a) of the Law of Succession Act. That this had the effect of violation of her inalienable right to a fair trial enshrined in Article 50 (2) (b) of the Constitution.

14. The substantive law on a defective charge sheet is provided in Section 134 of the Criminal Procedure Code which provides that:-“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

15. Assessment of fatality or otherwise of a charge sheet was addressed in Yosefu vs Uganda [1969] E.A 236 and Sigilani vs Republic [2004] 2KLR 480 where the courts in both cases were of the view that a charge is fatally defective if it does not allege an essential ingredient of the offence.

16. In the instant case, the appellant was charged with intermeddling with the property of a deceased person contrary to section 45 (1) (a) of the Law of Succession Act.Section 45 of the Law of Succession Act provides that:“(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall-a.be guilty of an offence and liable to a fine not exceeding ten thousand shillings or a term of imprisonment not exceeding one year or to both such fine and imprisonment; andb.be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”

17. In Yongo vs Republic (1983) KLR 319 the Court of Appeal while referring to Archbold, Criminal Pleading Evidence and Practice (40thed) page 52 considered what amounts to a defective charge and held that: -“A charge is defective under Section 214(1) of the Criminal Procedure Code where: -a.it does not accord with the evidence in committal proceedings because of inaccuracies or defencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; orb.it does not, for such reasons accord with the evidence given at the trial; orc.it gives a mis-description of the alleged offence in its particulars.”

18. In my view the charge sheet as drawn disclosed an offence known in law which offence was intermeddling with the property of a deceased person for which punishment was provided for. The appellant understood the said charge and participated in the trial. In addition to that, the evidence adduced in support of the charge was in accord with Section 45 of the Law of Succession Act. Moreover, the charge was in line with Article 50(2) (b) of the Constitution as the appellant was informed of the charge with sufficient detail to answer it. The charge was therefore not defective.

Whether the prosecution proved its case beyond reasonable doubt- 19. The cardinal rule in criminal procedure on prove is that the burden is always on the prosecution to prove the elements of an offence which an accused is charged with. The standard of proof is always that of beyond reasonable doubt as was held in the case of Woolington vs DPP 1935 AC 462 and Miller vs Minister of Pensions2 ALL 372-373.

20. According to Section 45 of the Law of Succession Act, anyone who has no authority under the act or by any other written law or has no grant of representation under the act takes possession or dispose of or otherwise intermeddle with any free property of a deceased person for any purpose is guilty of an offence under the said section.

21. I have perused the record and note that PW1 testified and stated that he is the administrator of the estate of his late father, Charles Kiage Moriasi. He produced letters of administration ad litem to support his contention. He also produced a Land Certificate and Certificate of Official search to show that land parcel No. LIR No. West/mugirango/bomabacho/165 belonged to his late father. PW6 on the other hand, a forest officer, produced a report on the trees damage assessment and he positively identified three photographs that showed the cut trees. The appellant's contention is that since the trees damage assessment report did not indicate the parcel number, there is no connection between the trees she is alleged to have cut and the estate of the deceased. I have noted from the assessment report that although it does not indicate the parcel of land, it states that the scene is located at Getaari village of Bomabacho sub location, Nyamira County. Further, the witness identified the cut trees from the photographs produced in evidence. In the premises, I do find that the prosecution had proved its case beyond reasonable doubt as it showed that PW1 was the administrator of the estate, the land which belonged to the deceased was where the trees were cut and that the appellant cut down the trees without the consent of the administrator of the estate.

22. The testimony of the person who bought the trees, PW5 was crucial in the case. He stated that he went to the appellant' farm after learning from Mr. Bundi that the appellant was selling trees. That present on the farm was the appellant, Bundi and the appellant's son. They negotiated on the price of the trees and agreed on Kshs. 80,000 which the witness gave to Bundi who gave the money to the accused. The witness testified that on 3/1/2016, they were on the farm with a vehicle loading the timber when AP officers from Morara AP camp came to the farm and arrested him and asked who had sold him the trees. That he told them that it was the appellant and they went ahead and arrested her too. On cross examination, the witness said that the complainant was present when the officers went to arrest him.

23. The appellant when put on her defence, gave a sworn statement denying that she sold trees to PW5 and that she received Kshs. 80,000/- for the trees. I find that her defence merely consists of denials. Further, the appellant did not deny knowing PW5. Therefore, based on the foregoing reasons, I do find that the prosecution had proved its case beyond reasonable doubt.

Whether the appellant's defence was considered - 24. It is the appellant's case that the trial court did not consider her defence but took the prosecution witnesses testimonies as the gospel truth without giving her the benefit of doubt. I have perused the record and note that the trial court did warn itself not to shift the burden of proof to the defence. The court went ahead to state that it found that the appellant merely denied the offence. The court further stated that the appellant's evidence was an afterthought and dismissed it entirely. In the premises, I find that the trial court took into account the appellant's defence and dismissed it on the grounds that it did not shake the prosecution's case. There is no reason for me to differ with the finding.

25. I therefore find that the prosecution had proved the charge against the appellant beyond all reasonable doubt and thereby uphold the conviction. In the premises the appeal lacks merit and is dismissed.

Prepared and signed by:J. N. NJAGIJUDGE3/6/2022DELIVERED, DATED AND SIGNED AT NYAMIRA THIS 7TH DAY OF JULY 2022 BY:F. A. OCHIENGJUDGEIn the presence of:N/A for AppellantMr. Majale for the RespondentCourt Assistant – Anita14 days Right of Appeal.