[2022] KEHC 2571 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCRA NO. E014 OF 2021

PATRICK KYALO MUSYOKA..............................................................APPELLANT

VERSUS

REPUBLIC.............................................................................................RESPONDENT

(Being an appeal from the original judgment of Hon. Mayamba C.A Principal Magistrate

in Kilungu Principal Magistrate’s Court PMCR Case No.942 of 2019

pronounced on 2nd December, 2020).

JUDGMENT

1. The appellant was charged in the magistrates’ court with assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars of offence were that on 27th October 2019 and also 28th October 2019 at Katanga village Kola Location Machakos County willfully and unlawfully assaulted Charles Kithiaka using an axe and a panga, occasioning him actual bodily harm.

2. In the alternative, he was charged with threatening to kill contrary to section 223 (1) of the Penal Code, the particulars of which being that on 4th November 2019 at Katanga village Kola Location in Machakos County without lawful excuse uttered words threatening to kill Jackson Wambua Kitingo who is a witness of the complainant telling him not to involve himself in our case with Kithiaka otherwise you see something in your life when you write your statement at Kola.

3. He denied both charges. After a full trial, he was convicted of the main count of assault causing actual bodily harm contrary to section 251 of the Penal Code and sentenced to serve 3 years probation.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal, and relied on the following grounds –

1. The learned Principal Magistrate erred in law in his interpretation and application of section 179 of the Criminal procedure Code (cap.75) in particular in finding and holding that the offence of common assault contrary to section 250 of the Penal Code had been proved beyond reasonable doubt in the absence of medical evidence to support the same and in convicting the appellant occasioning a miscarriage of justice.

2. The learned Principal magistrate erred both in law and fact in finding and holding that the offence of assault had been proved beyond reasonable doubt in view of the apparent substantial contradictions and inconsistencies in the prosecution evidence.

3. The learned Principal magistrate erred both in law and fact in making an offence that the appellant had a motive when it was obvious that the same was motive emanating from a land dispute could equally have to frame the appellant and in particular in view of the fact that the appellant have made several reports to the police against the complainant but no action was ever taken hence the possibility of the police being compromised by the appellant.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by the appellant and those of the Director of Public Prosecutions.

6. This being a first appeal, I have a duty to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences but bear in mind that I did not have the opportunity to see witnesses testify to determine their demeanor. See Okeno –vs- Republic (1972) E.A 32.

7. I have re-evaluated the evidence on record. In proving their case, the prosecution called 4 witnesses. I note that the Clinical Officer Mr. Kasiamani who came twice to court to testify on the formal medical evidence was objected to by counsel for the defence, and thus medical reports were not produced in court.

8. When put on his defence, the appellant tendered sworn defence testimony and called 3 defence witnesses.

9. I will start with ground 2 and ground 3 of appeal. I note that ground 2 of the appeal relates to contradictions in the prosecution evidence. I have perused the record of the trial court. The only contradictions I can see in the prosecution evidence are about the time and the date of occurrence of the incident. The complainant Pw1 Charles Kithiaka Mutua refers to 27/10/2019, while Pw2 Allan Mbole Masila referred to 22/10/2019 as the date of incident. Again, the complainant claimed to have been attacked at 7pm. However, in cross –examination he initially referred to 2pm and then reverted to 7pm. I also note that the charge refers to two assaults, one on 27/10/2019 and another assault on 28/10/2019. This was an irregularity.

10. In my view, the above contradictions in evidence and the irregularity on the charge are of a minor nature. In any case, the appellant himself and his witnesses admit that on the material day the appellant met with the complainant, that there was an exchange of rude words, and even a scuffle. I thus find that the above contradictions in the prosecution evidence and irregularity in the charge, are minor and not material, and are curable under section 382 of the Criminal Procedure Code (cap. 75) as they did not prejudice the appellant.

11. On ground 3 relating to the existence of a land dispute, I note that both the complainant and the appellant and his witnesses testified to the existence of a land dispute in varying versions. Thus indeed, the land dispute could have been motive for an attack by either the complainant or by the appellant. However, the existence of the land dispute could not be a justification for either the appellant or the complainant attacking the other.

12. From the evidence on record, I agree with the trial magistrate that it was the appellant who attacked the complainant and not vise versa, and the version of the attack given by the appellant is in my view not believable.

13. On the injury suffered, the appellant cannot be heard to argue on appeal that crucial medical evidence was not tendered in court and put blame on the prosecution while his counsel through his instructions objected to the Clinical Officer, who knew the Clinical Officer who prepared the medical report, to testify. Thus the pronunciation in the case of Bukenya –vs- Uganda (1973) cannot apply as the appellant through his counsel is the one who shut out the medical evidence. In any case, injuries suffered need not be proved through formal medical evidence. In the present case there is adequate evidence on record to prove that the complainant sustained injuries in the attack.

14. I now turn to the 1st ground of appeal. The first ground of appeal is that the magistrate erred in convicting the appellant for the lesser offence of simple assault by applying the provisions of section 179 of the Criminal Procedure Code.

15. In my view, the appellant is not being truthful as the trial court’s record shows that he was convicted for count 1, which is assault causing actual bodily harm contrary to section 251 of the Penal Code and not for simple assault contrary to section 250 of the Penal Code. In this regard, the trial court clearly concluded in the judgment as follows –

“36. Decision

I do find accused guilty in count 1 and not guilty in count 2. I do make the holding pursuant to section 215 of the Criminal Procedure Code”.

16. Ground 1 of appeal is thus also for dismissal.

17. The appellant has not appealed on sentence, and I note that the maximum sentence for assault causing actual bodily harm under section 251 of the Penal Code is 5 years imprisonment. Since the sentence of 3 years probation imposed is not illegal and the appellant has not appealed against sentence, I leave it at that.

18. Consequently, I find no merits in the appeal, and the same is hereby dismissed.

DELIVERED, SIGNED & DATED THIS 8TH DAY OF FEBRUARY, 2022, IN OPEN COURT AT MAKUENI.

.........................

GEORGE DULU

JUDGE