[2022] KEHC 11380 (KLR)

Okeyo v Republic (Criminal Appeal E005 of 2020) [2022] KEHC 11380 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11380 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E005 of 2020

RPV Wendoh, J

May 19, 2022

Between

Joseph Ogidi Okeyo

Appellant

and

Republic

Respondent

Judgment

1. Joseph Ogidi Okeyo, the appellant, was convicted by the Senior Principal Magistrate Migori on 14/5/2020 on two charges of assault causing actual bodily harm, contrary to Section 215.

2. The appellant is alleged to have unlawfully assaulted Lilian Akinyi Ochieng and GOO on the night of 24/3/2016 at Nyora area in Naytike Sub County in Migori County.

3. Upon conviction, the appellant was sentenced to serve three (3 ½) and half years on each count and the sentences were ordered to run consequently which I believe means, consecutively or one sentence term after the other.

4. Aggrieved by the said judgment, the appellant filed this appeal citing the following grounds:-1. That the trial court meted on the appellant a harsh ad excessive sentence.2. That the court failed to consider the documents produced in court.3. That the prosecution failed to serve the appellant with prosecution witnesses statements and he was denied a chance to call his witnesses.

5. He therefore prays that the conviction be quashed, sentence set aside and he be set at liberty.

6. The court directed that the appeal be canvassed by way of written submissions. Although the appellant told the court on 22/3/2020 that he had filed his submissions, none have been found on the file. The Respondent was allowed seven (7) days to file their submissions but again, none have been filed. As is therefore required of this court on a first appeal, I will go ahead to re-examine all the evidence tendered in the trial court afresh, analyse the evidence and come up with this courts own findings. However, the court will make allowance for the fact that it neither saw nor heard the witnesses testify.

7. PW1 Lilian Akinyi, recalled that on 24/3/2016, she was asleep in her house with her four (4) children who included PW2 GO aged fourteen (14) years; that she heard a loud bang on the door and she saw the appellant walk into her house while armed with a panga. She was sleeping under a net, and there was a D-light bulb; that a struggle ensued with the appellant; that her son entered the room and fell on the appellant and at that time the appellant cut PW2 on the leg and he cut PW1 on the palm of her hand. PW1 denied knowing the reason why the appellant attacked them; that she screamed for help. People came and he escaped in the Confusion. PW1 identified the appellant as a neighbour with whom they have never had any dispute or grudge. PW1 was seen by doctor and her P3 form filed.

8. PW2 corroborated PW1’s evidence and added that he knew the appellant as a person he used to see going passing by their home going to the lake. He also stated that he heard the door of the house being broken; that the mother switched on the light and he called the appellant by name and he cut him on the leg warning him not to call his name again; that the appellant pushed PW1 outside and cut her on the hand; that they screamed and people came to the scene and the appellant ran off.

9. PW3 Monica Achieng identified the appellant as a resident of their village and that she has known him since 1986 and even his parents. She recalled that on 24/3/2016, about mid night, she had been from outside where she had been moving her cows from outside when she heard screams emanating from PW2’s house. She ran towards PW1’s house and at the door she met the appellant pulling PW1 from the house and she had been cut on the hand while PW2 had been cut on the leg; that the appellant slapped her on her back with a panga and ran off. PW3 said that there is a solar light outside PW1’s house.

10. PW4 Leonard Omweri a clinical officer at Karungu Hospital in Nyatike, treated both PW1 and PW2 on the night of 24/3/2016 at about 3:00a.m soon after the assault. He produced the treatments notes and the P3 Forms. He confirmed that PW1was injured on the hand and suffered a fracture of the thumb metacarpal and the injuries were inflicted by a sharp object while PW2 sustained a deep cut on the knee 8 cm wide and 2cm deep which affected the blood vessels and nerves and was stitched. He assessed PW1’s injury as a main and that of PW2 to be harm.

11. PW5 PC Silas Lusweti, the investigating officer in the case received a report of the assault on 24/3/2016 about 1:30 a.m, He booked the report and issued PW1 and PW2 with P3 forms. He also recorded the witness statements. He arrested the appellant 1 ½ years later at the police station where he faced another charge because had disappeared.

12. When the appellant was called upon to defend himself on 2/4/2019 the matter was adjourned to allow him time to call his witnesses but again he vanished till he was arrested on 27/1/2020. He gave an unsworn statement in his defence. He denied assaulting the complainants and did not know why they complained against him.

13. I have considered the evidence of PW1 and PW2 and I find that there is no doubt that they were assaulted on the night of 24/3/2011. Their evidence on how the attack happened is consistent. Both of them also told the court that there was a solar lamp in the house which was the source of light. They also confirmed that they knew the appellant and PW2 called his name and that is when he assaulted him. PW3 who ran to the scene on hearing the complainants’ screams met PW1 and appellant at the door. PW3 also confirmed that there was a light at the complainants’’ door and so did PW5 the investigating officer who visited the scene. PW3 stated that the appellant also slapped him with a panga and that he is a person she had known since 1986. She also knew the appellants’ father. The evidence of these witnesses was never dislodged.

14. PW4 corroborated PW1 and PW2’s evidence as to the injuries that they sustained. PW3 and PW4 who saw the complainants on the said night also saw the injuries that they sustained. I have no doubt that the appellant assaulted the complainant on the said night.

15. The accused’ defence is but a mere denial. He alleges that it is a frame up. There is no reason why the complainants could just frame him up. The appellants conduct tells volumes. Soon after the assault, the appellant disappeared for about 1 ½ years till his arrest in about April, 2018, over two years later. He never explained the disappearance of over two years. As if that was not enough, after he was called upon to defend himself on 12/2/2019 and he asked for time to give his defence, he did not show up on 2/4/2019 for defence hearing till his arrest on 27/1/2020 when he was produced before court under warrant of arrest to make his defence. To this courts surprise, the trial magistrate never required of the appellant to explain his disappearance nor did he forfeit the security sum. I find that the appellants conduct is not consistent with that of an innocent person. He must have absconded because of what he had done which is assaulted of the two complainants.

16. After the appellant was rearrested on 27/1/2020, the matter was mentioned on 4/2/2020 when it was fixed for defence hearing on 5/3/2020 and on that day, the appellant gave his unsworn statement and indicated that he had closed his case. He never told the court that he still wished to call his witnesses. In any case, he should have confirmed to the court that he still needed to call his witness because he was allowed over one month to prepare his defence. Nothing stopped him from calling his witnesses then. The appellants contention that he was not allowed to call his witnesses is baseless. I find that the trial court arrived at the correct finding and I will not interfere with the conviction.

17. In his submissions the appellant included another ground, that the court breached article 50(2) (g) and (h) of the Constitution by failing to inform him of his right to counsel. Article 50 (2) reads as follows:-50(2) Every accused person has the right to a fair trial, which includes the right-(g)to choose and be represented by an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expenses, if substantial injustice would otherwise result, and to be informed of this right promptly;

18. By dint ofarticle 25 of the Constitution, the right to fair hearing cannot be limited. It therefore follows that it is mandatorily required of the court to accord an accused his rights to fair trial which includes the right to be informed of the right to counsel. In Chacha vs. republic Criminal Appeal No. 33 of 2019 J. Mrima was of the same view as J. Nyaukundi in Joseph Kiema Philip vs. Republic (2019) eKLR where they exhaustively dealt with Article 50 (2) (g). Justice Nyakundi sated thus:“I must emphasize that the accused person must be informed of this right immediately he/she appears before a court on the first appearance regardless of whether the plea would be taken at that point in time or later. Of importance is the emphasis that since the court speaks through the record then the record must be as clear as possible and ought to capture the entire conversation between the court and an accused person. A court should therefore not be in a hurry to take the plea before ascertaining that it has fully complied with Article 50(2)(g) of the Constitution among others as required. Circumstances calling, a court should boldly postpone the plea-taking until satisfied that the court has fully complied with the law.

19. The courts have held that the court must inform an accused person of this right and that the court must record that the Accused has been informed of the said right and his reply if any. Further, it is required that the right to counsel must be informed of the Accused promptly meaning before plea or soon thereafter. This is to enable an accused prepare for his case so that if the state cannot accord him counsel, he can make arrangements to get one or apply to the Legal Aid Committee for counsel. I do not agree with the defence counsel’s submission that the right only applies where an accused is charged with a serious offence. In this case, failure to comply with article 50(2)(g) of the Constitution renders these proceedings a nullity.Article 50 (2) (h) provides:-“50(2) Every accused person has the right to a fair trial, which includes the right-(h)to have an advocate assigned to the accused person by the State and at State expenses, if substantial injustice would otherwise result, and to be informed of this right promptly;

20. Under the above Article, the State is not mandated to provide counsel to an accused person except in circumstances where substantial injustice would result to an accused person. An offence of Assault is a misdemeour and the State would not be under any obligation to provide counsel for an accused. Breach of Article 50(2) (h) would not result in the proceedings being rendered a nullity.

Should the court order a retrial? 21. The Court in the Eastern African Court of Appeal case of Ahmed Sumar vs. Republic 1964 EALR 483, set down some of the principles that the courts need to consider before ordering a retrial . The court stated thus:-“...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered...”

22. In the instant case, though the case started in 2018, the appellant absconded for a long time and was only rearrested in 2020 when he was convicted and sentenced to 3 ½ years. I have considered the potentially admissible evidence and I am satisfied that it likely to result in a conviction. I am satisfied that the appellant will not suffer any prejudice if a retrial is ordered. I hereby order a retrial. I direct that the appellant be released to the police station at Malcader and be presented to Chief Magistrate’s Court Migori for plea on 23/5/2022.

23. Since it is a retrial the case should be expedited.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 19TH DAY OF MAY, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Omooria for the Respondent.Appellant in person.Nyauke Court Assistant.