[2023] KEHC 24954 (KLR)

Orenge v Republic (Criminal Appeal 22 (E018) of 2022) [2023] KEHC 24954 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24954 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal 22 (E018) of 2022

PN Gichohi, J

November 7, 2023

Between

Samwel Orenge

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. P. Biwott (Senior Principal Magistrate) in Ogembo Chief Magistrate’s Court Criminal Case No. E761 of 2021 delivered on 13th October 2022)

Judgment

1. Samwel Orenge (Appellant), appeared before the trial magistrate in Ogembo on 24th May, 2021 charged with the offence of causing grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on 2nd May 2021 at Nyaramba sub-location Gitenga Location in Etago Sub-County within Kisii County, he unlawfully did grievous harm to Calyphin Okenyoru Nyabuto.

2. He pleaded not guilty to the charge. After a full trial, the Appellant was convicted on the charge and sentenced to pay a fine of Kshs. 100,000. 00 and in default three (3) years imprisonment.

3. Aggrieved by both conviction and sentence, the Appellant preferred this appeal through the form of S. M. Sagwe & Co. Advocates raising seven (7) grounds which can condensed into five grounds as follows:-1. That the trial magistrate relied on uncorroborated, inconclusive and hearsay evidence.

2. That the trial magistrate convicted him on a defective charge sheet. He added that the investigations conducted were shoddy.

3. That the trial magistrate misdirected himself by considered the evidence of PW4 who neither investigated the case nor produced the panga and club as exhibits in court.

4. That the trial magistrate failed to consider his defence opting to merely dismiss it.

4. He therefore urged this Court to allow the appeal, quash the conviction, set aside the sentence imposed on him and set him at liberty.

5. The Appeal was heard on the basis of written submissions filed on 24th April, 2023 and 22nd May 2023 by the Respondent and Appellant respectively .

Appellant’s Submissions 6. The Appellant submitted that there were contradictions on the hospital the complainant (PW1) was admitted in that while PW1 alleged to have been admitted at Nyangena hospital for seven days, his father (PW2) alleged that PW1 was taken to Tabaka Missions Hospital and then admitted at Nyangena Hospital for 8 days. That on other hand, PW4 stated that PW1 was referred to Kisii level 5 hospital and then Nyangena Hospital while PW5 referred to Etago Nyamarambe and Nyangena Hospital. Further, there was no documentary evidence to show that PW1 was admitted at Nyangena hospital.

7. Further, he submitted that the trial magistrate failed to take the Appellant’s evidence that he is the one who came to the complainant’s rescue and made the assailants to flee leaving the Appellant. He submitted that it was a case of the complainant as against the Appellant and therefore , the benefit of doubt ought to have been given to the Appellant.

8. Lastly, the Appellant submitted that the evidence on record did not support the charge and therefore, the Appellant was wrongly convicted and sentenced and as a consequence, he prayed that the appeal be allowed, conviction quashed and the sentence set aside.

Respondent’s Submissions 9. The Respondent opposed the appeal and submitted that there exists overwhelming evidence in support of the charge of grievous harm. Further, it was submitted that the complainant vividly testified how the Appellant attacked him, cut him twice on the head and cut him on the leg and face. That evidence as regards those injuries were confirmed by treatment notes and P3 Form produced as exhibits by PW4 which corroborated the evidence adduced by complainant and PW2.

10. The Respondent maintained that the Appellant was saved from the mob that wanted to lynch for assaulting the complainant but panga and club were not recovered and therefore not produced.

11. Further, the Respondent submitted that the Appellant’s defence did not shake the prosecution case at all and therefore it was properly dismissed. The Appellant therefore urged the court to this court to uphold the conviction and affirm the sentence.

Analysis And Determination 12. This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial court in light of the submissions made before court, before reaching its own independent determination whether or not to uphold this appeal. In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified and therefore give due regard in that respect. (See Okono vs. Republic [1972] EA 32).

13. The Prosecution called four (4) witnesses in a bid to prove the charges drawn against the Appellant. The evidence was that the complainant herein Calyphin Okenyoru Nyabuto (PW1), left Etago Trading Centre on 1st May 2021 at 7:00 p.m and as he walked, he met the Appellant’s son in company of another boy he did not know. Theft had occurred.

14. As he walked ahead, he met the Appellant carrying a panga. He knew the Appellant’s name as Samuel and also because he was their neighbour. He was able to identify his face as there were electricity lights. The Appellant suddenly confronted him accusing him of assaulting the Appellant’s children. The complainant recognized the Appellant by his voice.

15. Using the panga , the Appellant cut the complainant on the head, face and leg as he lay on the ground bleeding and pleading with the Appellant to spare his life. The Appellant then left. The complainant then crawled home and reported to his brother who in turn called their father James Okenyuru Onura (PW2) who rushed the Complainant to Nyangena Hospital where he was admitted for one week.

16. On cross -examination, he told the court that he knew one Kwamboka Oriango but she was not with the two men he had met on the road. He denied grabbing Kwamboka by the hand. He denied being taken to Kisii Level 6 Hospital. He found himself already admitted at Nyangena Hospital where he stayed for Seven 7 days.

17. James Okenyuru Onura (PW2) saw that the complainant was bleeding from the head and face. The complainant reported that it was Samwel the fundi who had attacked him. The complainant then became unconscious. PW2 rushed him to Nyangena Hospital where he admitted for eight (8) days.

18. PW3 Wilfred Nyambera , a clinical officer based at Suguta health centre prepared the P3 Form and notes was disqualified by the court for he was not the maker of the P3 Form.

19. PW4 Maureen Kwamboka Ombaba , a clinical officer at Etago saw the complainant on 2nd March, 2021 and again on 13th May 2021 when she filled the P3 Form and assessed the degree of injury as maim. . The complainant had treatment notes from at Nyangena Hospital. He was treated at Kisii Referral Hospital.

20. In cross examination, she did not know who treated the complainant at Nyangena and did not see him on 2nd May 2021 as she was not on duty. She explained that the patient came to Nyangena Hospital on referral and she just saw the notes not the complainant.

21. In re-examination, she told the court that the complaianat was only referred to them from Nyangena for removal of stitches . He was also referred to them for the filling of the P3 Form and saw him before filling the same. She clarified that they do not treat patient s at Etago.

22. PW5 No. 59016 PC Jackson Ouma of Etago Police Station investigated this case. He testified that on 2nd May 2021 at about 1930 hours , the Appellant who was armed with a panga cut the complainant severally. The complainant screamed for help and people came and took him to Etago subcounty hospital but he was referred to Nyamarambe and Nyangena Hospital .

23. Then on 3rd May 2021, the OCS received a call from a priest who informed him that the Appellat was being lynched by the mob. The OCS rushed and rescued the Appellant. The complainant remained in hospital until 13th May 2021 and later came for the P3 Form and recorded a statement .

24. On being cross examined by the defence counsel, he told the court that he rescued the accused from the mob at the scene. He did not find a lady by the name Kwamboka Oriango being fought by two men. He denied charging the Appellant to please the complainant. He did not establish if the Appellant was one of the people who had come to rescue the complainant

25. In his sworn statement in defence, the Appellant told the court that that he was a catechistic at St. Thomas Etago and was a tailor and did business at Nyamaramba. That while in company of his family at his shop at about 8. 00 pm, he saw two people fighting outside the shop. He came out with a spotlight and separated them. One of them escaped and the other had fallen. He identified the man who had fallen. It was the complainant. He asked him what happened but he did not respond. He stood up and left only to later accuse him in this case. He denied assaulting the Complainant who he accused of lying to court.

26. In cross examination by the Prosecutor, the Appellant told the court that the complaisant was conscious and was able to see his assailant but the assailant ran away.

27. From that evidence, the main issues for determination are:-1. Whether the charge was defective.2. Whether the complainant sustained the alleged injuries.3. Whether the Appellant was properly identified as the attacker.

28. The issue of defective charge was dealt with at length by the Court of Appeal in the case of Peter Ngure Mwangi v Republic [2014] eKLR, where the Court stated;“On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not. This Court considered the ingredients necessary in a charge sheet necessary in a charge sheet and stated as follows in the case of Isaac Omambia V Republic, [1995] eKLR:“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: 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 person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”“…Turning to the second limb as to whether the defect in the charge sheet is curable under Section 382 of the Criminal Procedure Code or not, we have had occasion to revisit and construe this section on our own.Section 382 of the Criminal Procedure Code provides:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

29. The charge sheet presented before the trial court indicates that the Appellant was charged with “Grievous harm contrary to section 234 of the Penal Code. That section provides:“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

30. Further, the charge contains his name, the name of the complainant, the date and place the offence was committed and the section under which the Appellant was charged. Though, the record does not indicate whether the Appellat was represented during plea, he pleaded not guilty. The same record shows that the Appellant was represented by a counsel right from the start of the hearing of the case.

31. What is apparent from the lower court record is that the issue of defect was only raised by defence counsel during submissions at the close of the defence case thus:-“PW1 says that he was assaulted on 1/5/2021 and investigating officer puts it on 2/5/2021…the charge was defective …”

32. That is definitely a contradiction on dates. The trial court captured that issue in the judgment and held:-“PW1 and PW2 maintained that that the injury was committed on 1/5/2021 and not 2/5/2021 as put by the investigating officer in the charge sheet. The error of date was made by PW5. It does not affect the charge sheet as to cause injustice to accused. The evidence has confirmed that the injury to PW1 was committed on 1/5/2021. ..”

33. Not all manner of discrepancies can affect a case. For a contradiction to be fatal, it must relate to the totality of evidence and must be substantial. From the evidence presented before the trial court , the Appellant clearly understood the charge he was facing before court and was able to prepare his defence. A contradiction in regard to this date is not substantial and cannot be used to invalidate the totality of the evidence herein. This Court finds no miscarriage of justice occasioned to the Appellant on the issue of dates. There is no error in the trail court’s finding .

34. On the issue as to Complainant sustained the alleged injuries, the P3 Form produced as P Exh. 2 shows that the Complainant was examined and found to have multiple cut wounds on the head and face. He also had a cut would on the right leg. The probable type of weapon used was a sharp object. The evidence was led that the attacker used a panga to cut the complainant.

35. That evidence is consistent. The degree of injury was classified as maim. The ground of appeal that there was no medical report produced does not hold water. Further, the fact that the panga was not produced as an exhibit has no effect in this case as none was said to have been recovered either.

36. On the issue of identity, there is no doubt that the incident occurred at night. The only eye witness to the attack was the Complainant in this case. Regarding such identification , the Court of Appeal in Cleophas Otieno Wamunga v Republic[1989]eKLR had this to say:-“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

37. The Complainant testified that there was electricity light at the scene. He was able to see Appellant. He identified him because he was a neighbour and he also knew his name as Samwel. The Appellant spoke to him and he recognised the voice too as that of the Appellant herein. In his defence, the Appellant does not deny being at the scene on the material . His defence was that he had gone to separate two men who were fighting. That the attacker escaped leaving the other lying on the ground. He named the man lying on the ground as the Complainant.

38. The complainant reported that it was the Appellant who had attacked him. The Appellant was known as a fundi, a fact not denied by the Appellant. The evidence was that the Appellant was rescued from the mob who wanted to lynch him. The defence did not dislodge this evidence at all. This Court is satisfied that even if the attack occurred at night, the circumstances were conducive for proper identification and there was no possibility of error. There was no mistaken identity in this case.

39. In conclusion, this Court is satisfied that the Prosecution proved its case as required by law. The conviction was therefore proper. The sentence for the offence under which the Appellant was charged is imprisonment for life. The sentence of a fine of Kshs. 100,000/= in default three (3) years imprisonment passed by the trial court is reasonable. The Appeal is therefore dismissed. The conviction upheld and sentence therein affirmed.

DATED, SIGNED AND DELIVERED (VIRTUALLY) AT KISII THIS 7TH DAY OF NOVEMBER, 2023. PATRICIA GICHOHI...................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR