[2023] KEHC 26842 (KLR)

Otieno v Republic (Criminal Appeal E064 of 2022) [2023] KEHC 26842 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26842 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E064 of 2022

MS Shariff, J

November 10, 2023

Between

Joseph Ayomo Otieno

Appellant

and

Republic

Respondent

(Being an Appeal from the conviction and sentence by Hon R. M. Oanda (SPM) in Winam Criminal Case No. 129 of 2019 delivered on 8th December, 2022)

Judgment

1. The Appellant was charged with the offence of attempted murder contrary to Section 220(a) of the Penal Code the particulars being that on the night of 24-25th July, 2018 at around 1800hrs at Migosi estate, Kisumu East sub-county within Kisumu County unlawfully attempted to cause death of Evans Aloyo Otieno by stabbing him several times on his body using a kitchen knife.

2. Upon arraignment, the Appellant pleaded not guilty and the matter thus proceeded to hearing where evidence was adduced as follows;

3. PW-1 Evans Aloyo Otieno stated that he had hosted the Appellant, his step-brother in his house. That he came back home on the fateful day at about 8. 00pm whereupon the Appellant opened the door for him. As he was heading to the kitchen, the Appellant attacked him and when he fell unconscious, the Appellant stabbed him severally before carrying him and placing him on the back seat of the car. That when the Appellant went back to the house, he sneaked and was assisted by a neighbor.

4. PW2 Donny Achieng, the complainant’s mother stated that she received a text message informing her that her son had been stabbed. She proceeded to Avenue Hospital where she found the complainant and later the Appellant came in the company of his sisters. That they took the Appellant to Kondele Police Station and checked the complainant’s house where they found the complainant’s girlfriend had been killed.

5. PW-3 John Oduor Otieno stated that he was in his house on the date when someone knocked on his door and one Dolly Onyango asked him to pick the keys to her car. The said Dolly informed him that somebody had attacked her son and together, they proceededed to avenue Hospital where they met a neighbor Harrison and the complainant was then unconscious.

6. PW-4 PC Kimeli Elias narrated the turn of events from when the In-charge Kondele police station called him informing of the reported incident. That he, in the company of other officers visited the scene of crime and found the complainant’s girlfriend had been killed and body dumped in the complainant’s car. That the scene was processed and the Appellant charged.

7. PW-5 Dr. Ombok from JOOTRH testified on behalf of her colleague and stated that the complainant was examined approximately 4 weeks after the assault. She produced into evidence the P3 from showing the nature and extent of injuries.

8. The Appellant was subsequently put on his defence and elected to tender sworn evidence and stated that on the fateful day, he was vending eggs and smokies at the showground where he spent the better part of that day. Later at night while heading to Mamboleo area, he was attacked by a mob and his companion, a lady fled and he was beaten and robbed. He headed back to the showground where he was taken home by a good samaritan.

9. That on reaching home, he met his sister sleeping on the couch and she inquired of his step-brother and he headed to hospital with her. At the hospital, he met his step-mother who accused him of assaulting the complainant. That he was taken to Kondele Police Station from where he was arrested and tortured to admit the offence.

10. DW-2 George Okoth, a tuktuk driver stated that he took a customer to showground in the year 2018 where he met another one claiming he had been attacked and took him to car wash area.

11. DW-3 Everlyne Akinyi Otieno, the Appellant’s sister stated that she received a text message from the complainant’s mother that the Appellant had assaulted the complainant. She went to Avenue Hospital and back to the house where she found the Appellant asleep and she took him to the hospital.

12. DW-4 Lucy Adhiambo, the Appellant’s sister stated that she came back from work on the material day and the Appellant gave her the key to the house saying that he was going to the showground. That the Appellant came back at around 11 pm and went to sleep before PW-3 came and took him. She found out in the morning that the Appellant had been arrested. When she went to her elder brother’s car, they found a lady’s body wrapped and deposited in the car.

13. Upon considering the evidence, the trial magistrate convicted the Appellant and sentenced him to 20 years imprisonment. The Appellant being aggrieved moved this court by way of a petition of appeal dated 22nd December, 2022 raising the following grounds;a.The learned trial magistrate erred by failing to appreciate that the prosecution’s case was not proved beyond reasonable doubt.b.The prosecution’s witness evidence was marred with contradictions, glaring gaps and inconsistencies.c.That he was not accorded a fair trial hence infringement of his rights and fundamental freedoms as enshrined in Article 50(2) of the Constitution.d.The investigation tendered was shoddy thus no identification parade was orchestrated as per the force standing orders and the law.e.The trial court failed to consider the circumstances surrounding the veracity of the offence committed herein.f.The trial court erred by failing to recover the alleged exhibits used in the attempted murder from the Appellant.

14. By directions of the court, the appeal was canvassed by way of written submissions, only the Respondents are on record.

Analysis and determination. 15. This being a first appeal, I am guided by the holding in Mark Oiruri Mose v R (2013) eKLR where it was held thus;….the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

16. Having perused the entire record, the issue for my determination is whether the offence as charged was proved to the required standards. I need not repeat the evidence adduced in the trial court as the preceding paragraphs succinctly captures the parties’ respective cases.

17. The offence is created by section 220(a) of the Penal Code which enacts;Any person who:(a)attempts unlawfully to cause the death of another; or(b)with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.

18. The complainant who testified as PW-1 gave an account of events on that fateful day, briefly, the material facts relevant to this cause is that he had hosted the Appellant in his house ceding one bedroom to the Appellant. Later on during the day, upon arriving at his house, he knocked the door and the Appellant opened the door and whilst he was walking towards the kitchen the Appellant hit him on the back of the head whereupon he lost consciousness. Upon his falling, the Appellant sat on him and started stabbing him severally. He gave a description of the injuries inflicted on him using a knife and the struggle that ensued thereafter, he stated that the Appellant uttered words to the effect that the complainant must die.

19. These injuries were corroborated by PW-5 Dr. Ombok Lucy who produced a P3 form which showed the complainant sustained several cut wounds and categorized the injuries as harm.

20. The ingredients of a charge of this nature were stated in Abdi Ali Bare v Republic (2015) eKLR. Githinji, Mwilu J and M’Inoti JJA thus :-“.......The more challenging question in a charge of attempted murder is the actus reus of the offence. Although a casual reading of Section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence. In the work quoted above by Smith & Hogan (Butterworths), the authors give the following scenario at page 291 to illustrate the distinction:“‘D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder...’In the present appeal, to prove attempted murder on the part of the Appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with commission of the murder. Whether there has been an attempt to commit an offence is a question of fact. The act alleged to constitute attempted murder, for example, must be sufficiently proximate to murder to be properly described as attempt to commit murder. In Cross & Joines' Introduction To Criminal Law,Butterworths, 8thEdition (1976), P. Asterley Jones and R. I. E. Card state as follows at page 354:“'..[A]n act is sufficiently proximate when the accused has done the last act which it is necessary for him to do in order to commit the specific offence attempted...'The learned authors add that the court must answer the question whether the acts by the accused person were immediately or merely remotely connected with the commission of the specific offence attempted on the basis of common sense. Ultimately therefore, the real question is whether the acts by the accused person amounted to mere preparation to commit murder or whether the accused had done more than mere preparatory acts.”

21. In this appeal, the Appellant’s acts in my view are sufficiently proximate to the act of murder. The evidence adduced show that the only step missing in the entire scenario is death. The Appellant must have in his act, intended to cause the death of the complainant taking into account the nature of the weapon used as well as the injuries inflicted. The injuries inflicted were in no doubt calculated to cause death.

22. The evidence reveals that the Appellant checked the complainant’s pulse with his fingers was to make sure that the latter was dead before finally disposing the body in the car. The complainant’s girlfriend one Kesi had been in the house with the Appellant only for her body to be found in a Toyota Noah van.

23. I have carefully perused the evidence adduced and find no contradiction in the prosecution’s case to warrant a reversal of the conviction handed down. The witnesses accounts were consistent and credible. The same was not impeached on cross examination wherefore it’s probative value cannot be overstated.

24. I have also considered the ground that the Appellant’s rights to fair trial were infringed. A perusal of the record does not show instances where the Appellant’s rights were violated. The trial court accorded him an opportunity to cross examine all the witnesses and when his time to tender his defence came, he presented his case and called all his witnesses. His said ground of appeal thus tumbles and must fail.

25. The circumstances surrounding the commission of the offence puts him at the center of the crime and his attempt to call DW-2 to testify that he was at the showground fell short of a defence of alibi. His other witnesses did not give a satisfactory account of the Appellant’s whereabouts at all material the time. On the contrary I find that his evidence is fraught of contradictions which cannot displace the prosecution’s case. DW5 Esther Anyango Otieno stated that on the material day she noticed a missed call from her step mother who told her that the Appellant ‘JOS’ had stabbed the complainant ‘Mzee’. Upon going to Avenue Hospital PW5 found Mzee in hospital and he told her that the Appellant had stabbed him.

26. It is instructive to note that none of the defence witnesses had the presence of mind to call their brother the Appellant when they received the report from their step mother. It is quite evident that there existed step-sibling rivalry and the defence witnesses were out to cover for their brother, yet they are the ones who also discovered the body of the complainant’s girlfriend Kesi in a Toyota Noah van. This defence does not hold water and must fail.

27. Premised upon the above reasons, I find no merit in this appeal and hereby proceed to dismiss it. The Appellant’s conviction is upheld and sentence is confirmed.

28. Orders accordingly.

DELIVERED, DATED, AND SIGNED AT KISUMU THIS 10TH DAY OF NOVEMBER, 2023. MWANAISHA S. SHARIFFJUDGE