[2017] KEHC 2763 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 22 OF 2015

PATRICK CHOMBA NJOKA…..…APPELLANT

-VERSUS-

REPUBLIC………………............RESPONDENT

(An appeal from the conviction and sentence of the Principal Magistrate’s Court (P. M. Kiama) at Wanguru, Criminal Case No. 268 of 2013 delivered on 5th June, 2015)

JUDGMENT

1. The appellant Patrick Chomba Njoka was charged with Grievous Harm contrary to Section 234 of the Penal Code vide Wanguru Principal Magistrate’s Court Criminal Case No. 268 of 2013. After a full trial he was found guilty, convicted and sentenced to serve four (4) years imprisonment on 5th June, 2015. The appellant was aggrieved by both the conviction and sentence and filed this appeal. The appellant based his appeal on the following grounds:

i. The learned Principal Magistrate erred in law and facts in convicting the appellant.

ii. The learned Principal magistrate convicted the appellant against the wright of the evidence adduced.

iii. The learned Principal magistrate erred in law in holding that the appellant had committed the offence charged of.

iv. The learned Principal magistrate erred in law and fact and gravely misdirected himself in totally disregarding the evidence of the appellant.

v. The learned Principal magistrate erred in law, fact in holding that the appellant was guilty when there was no evidence to support the charge.

vi. The learned Principal magistrate erred in law and facts in convicting the appellant upon a defective charge.

vii. The learned Principal magistrate erred in law and fact in not considering the evidence of the appellant and not stating the reasons for not believing the evidence of the appellant.

2. However in his submissions the appellant collapsed the grounds to two as follows:

1. Conviction against the weight of the evidence.

2. Ignoring the appellant’s version of events.

3. The brief facts of the case are that on 4th March, 2013 the complainant Francis Mbugua Gitari (P.W.1) was on the way home after voting. He was carried on a motor bike by one Michael and he was with his friend Fredrick Gichovi. Before the motor bike started moving, the complainant was stabbed on the neck. The person who stabbed the complainant according to P.W. 2 Fredrick Gichovi and Michael Murimi Mburia was Chomba the appellant. He lost consciousness. The appellant did not see who stabbed him. He regained consciousness while at the hospital. He was admitted in hospital till 13th March, 2013. He reported the matter to the Police and was issued with a P.3 form which was filled by Doctor Godfrey Njiru. The degree of injury was assessed as grievous harm. The appellant was arrested and charged.

4. The prosecution had six witnesses. P.W. 1 was the complainant Francis Mbugua Gitari who testified that on 4th March, 2013 after casting his vote he rode a bike belonging to Michael Murimi Mburia, P.W. 3 in this case. Before the motor bike could gain speed, he was stabbed on the right side of the neck and lost consciousness. He did not know who stabbed him. He had seen the appellant at the polling station. P.W. 2 confirmed he was with P.W.1 and after they had boarded the motorcycle, the appellant appeared and stabbed P.W.1 with a knife on the right side shoulder. They reported to the Police then went to hospital. He knew the appellant since birth since he is his cousin. P.W. 3 stated that he knew his customers P.W. 1 and P.W. 2 who asked him to take them home. After they boarded, someone emerged from the bush and stabbed P.W.1 on his right hand. They reported to the police then took P.W. 1 to hospital. He was able to identify the appellant since they hail from the same area. P.W. 4 stated that on 25th March, 2013, P.W. 1 came to report that he had been stabbed by his cousin the appellant. He had a duly filled P3 form and letter from Wanguru. They proceeded to the appellant’s home and arrested him. P.W. 5 recalled on 12th March, 2013 while in his office when a brother P.W.1 reported an assault. He booked in the Occurrence Book and waiting for P.W.1’s discharge whereupon he recorded a statement. He issued him with P3 form. After undertaking investigations, he requested administration police officers to arrest the appellant. P.W.6 confirmed the injury sustained by P.W.1 as stab wound on the right chest and assessed the injury as grievous harm. However, he did not examine P.W. and therefore could not tell whether the stab wound was on the front or back.

The appellant gave his defence and called witness. Briefly the defence case is as follows;

D.W.1 stated that after voting, he went to buy fertilizer for his shamba. After he was dropped by taxi, he met with P.W.1 and P.W.2 who bought him a beer. Later, when he left P.W.1 and P.W2 followed him and stated beating him. He screamed and one John and Mwangi arrived then he was taken to hospital and reported the attack to the police. He however did not remember to carry the P3 form he was issued with. D. W. 2 stated that he waited for votes to be counted then proceeded home where he met P.W. 1, P.W.2, P.W.3 and the appellant who were all drunk fighting outside a club. The appellant was being beaten by the other three. He went to report to the appellant’s father and on going back to the scene, the appellant had already been taken to hospital.

5. From the evidence adduced by the prosecution the testimony of P.W. 2 and 3 is well corroborated that it is the appellant who stabbed the complainant. The matter was reported the same day at P.I. Police post and the complainant was escorted to hospital where he was admitted for nine days. The defence adduced by the appellant and the testimony of his witness was an afterthought because it was not put to the prosecution witnesses when they testified. The defence of the appellant was disapproved as he never reported and was never issued a p.3 form by the Police. This was as testified by P.W.5. Though a P.3 form was shown to P.W.5 when he testified, it was never produced as an exhibit. Furthermore P.W. 5 adduced evidence that he investigated and found that the matter was assault and not a fight. The appellant testified that they were drinking and there was a brawl. This is disapproved as witnesses P.W.1, 2 and 3 testified that bars were not opened that day as it was voting day. The complainant was admitted in hospital the same day and there was no evidence that he had been drinking.

6. The appellant raised the issue that the conviction was against the weight of the evidence. It is submitted that there was contradiction between the evidence of the complainant and that of the doctor as to where the complainant was stabbed. Whether it is on the right side of neck or on the chest. I find that there is no contradiction. The P. 3 form exhibit 1 Section B (b) states: Thorax and Abdomen: It says: Stab wound scar, right side chest with X-ray confirming haemothorax stab wound scar right side of anterior neck region.

The discharge summary says the appellant had a penetrating chest injury. Doctor Njiru who produced the P.3 form which he filled testified that he did not capture the exact site of the wound. I am of the view that the evidence of the complainant that he was stabbed is corroborated by the testimony of P.W. 2 and 3 and medical evidence confirms that he was injured on the material day. The injury was confirmed. There was no contradiction as the doctor stated he did not indicate the exact site. The discharge summary shows that a chest tube was inserted. The incision to insert the tube must have left a scar. The P.3 form captures a chest injury and neck injury. I am of the view that there is no contradiction as the medical evidence adduced by P.W. 6 confirms that the complainant was injured on the material day and the injury was assessed as grievous harm. The evidence by P.W. 2 and P.W. 3 confirms that the appellant who was well known to them is the one who attacked the complainant and stabbed him with a knife. The defence of the appellant shows that he had an encounter with the complainant and the witnesses P.W. 2 and 3.

7. The appellant faults the Court for ignoring his defence. From the record, the judgment of the trial magistrate considered the defence of the appellant. The trial magistrate stated at page 7 of the judgment page 47 (marked in red):

“In his defence the accused denied committing the offence. The accused however, admitted that on the material day i.e. 4th March, 2013 he did meet a group of young men who included the complainant, Fredrick (prosecution witness 2) and Michael (prosecution witness 3). The accused argued that he was in a bar drinking beer with the complainant and as the accused walked home he was attacked by the complainant and the other young men and injured. One wonders why the accused did not produce the P.3 form to confirm he was indeed assaulted. Further no evidence was led to show that the complainant was drunk when he was admitted to hospital after the attack. I find the defence of the accused to be a general denial which could not stand in the face of the eye witness’s account of how they saw the accused stab the complainant on the material day”.

This shows that the trial magistrate considered the defence and gave reasons for not accepting it. It is submitted by the state that the appellant did not produce the P.3 form which he alleged he was issued, he did not produce any treatment chits from Kimbimbi hospital to confirm that he was treated after the assault. He never asked the prosecution to produce the Occurrence Book extract from PI Administration Police Post to confirm that he had indeed reported. As pointed out the appellant raised these new matters in his defence which were not put to the prosecution witnesses. This denied the prosecution an opportunity to respond and such becomes a sham defence.

8. The appellant and his witness contradicted each other on material aspect. Whereas the appellant had stated that it is one Mwangi who had gone to their home place to call his brother D.E.2, the D.W. 2 stated that he was on his way home when he met the appellant, the complainant and P.W.2 engaged in a fight he was never called by anybody. This inevitably shows that the D.W.1 and D.W.2 were not telling the truth. Whereas D.W.2 wanted to tell the Court that he witnessed a fight, D.W.1 is saying that Mwangi is the one who went home and reported to his brother. This shows that the defence was not credible and the trial magistrate was right in rejecting the defence.

9. Though the complainant said he did not see the assailant P.W. 2 and 3 who were present saw the accused stabbing the complainant. It is immaterial that the complainant never saw the appellant. What is required is evidence to prove that that the person who stabbed him is appellant. Even in murder trials where victims die conviction is achieved through evidence of eye witnesses as happened in this case. The medical evidence confirmed that the complainant was stabbed with a sharp object. The knife was with the appellant and was never recovered. This does not mean that the conviction was wrong. The appellant states that the complainant did not proof the motive of the attack. The appellant stated that it was not the first time as the complainant had attacked him before with pangas while D.W. 2 said they are not in good terms with the family of the complainant. This shows that the appellant would have had reason to attack the complainant in revenge or the alleged bad blood.

10. I am of the view that the prosecution proved its case against the appellant beyond any reasonable doubts. The medical evidence corroborated the evidence of the complainant that he was stabbed with a knife by the appellant and the injury was grievous harm. Section 4 of the Penal Code defines “grievous harm” as – “any harm which amounts to maim or dangerous harm or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense.”

The doctor, Godfrey Njiru (P.W. 6) testified that he assessed the injury as grievous harm because the injury leading to fluid in the chest cavity was life threatening.

11. I am of the view that the evidence on record left no doubt as the trial Court found that the appellant assaulted P.W. 1 in the manner described by the witnesses causing him grievous harm. The trial Court considered all the aspects of the case before him and came to a proper and inevitable conclusion. The evidence as submitted by the State was overwhelming.

12. I have considered the case of Nelson Kiogora Njoka -V- Republic H.C. Nairobi Criminal Appeal No. 188 of 2009. The decision is persuasive. It was based on facts of the case which are different from the present case. My view is that failure to produce the weapon used does not vitiate a conviction. It would be to set a bad precedent as criminals would use a weapon and ensure that it is never recovered so that they can escape a conviction. It would also mean if the weapon used to commit a crime is not recovered and produced as an exhibit even where there is other evidence a person would not be charged. I am not persuaded to adopt the reasoning in the authority.

13. I am of the view that the evidence presented before the trial magistrate was overwhelming. The conviction was proper. The appeal lacks merits and is dismissed. The conviction and sentence are upheld.

Dated and delivered at Kerugoya this 9th day of October, 2017.

L. W. GITARI

JUDGE

Read out in open court, Mr. Sitati prosecuting counsel for State, appellant, present, court assistant Naomi Murage this 9th day of October, 2017.

L. W. GITARI

JUDGE

9. 10. 2017