[2017] KEHC 7386 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CRIMINAL APPEAL NO 21 OF 2016

(From the original conviction and sentence in

Ndhiwa PMCrC No 72 of 2016 by B. R. Kipyegon (RM)

PAUL ODHIAMBO YONGO………………………………….APPELLANT

VERSUS

REPUBLIC………………………………………………………REPUBLIC

JUDGMENT

1. PAUL ODHIAMBO YONGO (the appellant) was convicted on a charge of grievous harm contrary to section 234 of the Penal code and sentenced to serve 20years imprisonment. The prosecution case was that on 11/03/15 at LOWER KAYAMBO location he caused grievous harm to PETER ODHUL OGALO. He denied the charge and prosecution called a total of 6 witnesses to prove its case whilst the appellant was the only defence witness.

2. PETER ODHUL OGALO (PW1) narrated how on the aforementioned date at 8 pm while at the home of one JOSEPH OTIENO where he had gone to look for a job, the appellant who had a panga came and sat next to him. Without any provocation, the appellant suddenly cut PW1 on the face then he got up and fled. JOSEPH OTIENO who was present held PW1 and led him away into his house. PW1 went for treatment at Ndhiwa District Hospital

3. According to STEPHEN KERARIO (PW4) a clinical officer at Ndhiwa District hospital who attended to PW1 he suffered a deep wound on his left eye which extended to his nose. So bad was the injury that PW1 had to undergo surgery for removal of the eye. From the P3 form produced in court, the injury was assessed as grievous harm.

4. PW1 had known the appellant as a neighbor and told the trial court that he had never differed with the appellant at all. He also told the court that apart from not being able to see with the injured eye, he also has problems breathing through the right nostril.

5. JOSEPH OTIENO YONGO (PW5) confirmed that while seated at his verandah in the company of PW1 at about 8. 00pm, the appellant arrived while carrying a panga which he used to cut PW1 then left. He explained that he was able to identify him as there was enough moonlight to enable him a person, and that neither he nor PW1 even imagined that he would attack anyone would.

6. GRACE AKINYI ADHUL (PW2) (the victim’s wife) and MICHEAL OBEDO (PW3) (the victim’s brother) were within their separate homesteads on that night when their attention was drawn by screams which came from the direction of PW6’s home. PW2 (the wife) rushed to the scene to find an injured PW1 who was being assisted by PW6. They informed her that the appellant had attacked PW1. The same scenario replayed when PW3 got to the scene. Both witnesses said they were not aware of any existing differences between PW1 and the appellant.

7. The appellant in his sworn defence told the trial court that he knew nothing about the attack and was just arrested while on his own frolics on 13/03/15 on allegations that he had attacked someone.

8. Upon considering the evidence, the trial magistrate was cautious about identification of suspects at night but noted that both PW2 and PW5 were consistent that it was not so dark as to make it impossible for one to see and identify another person. He was satisfied that there was positive identification by the witnesses who knew and recognized the appellant-more so because the appellant was a relative of PW5. He pointed out that PW1 and PW5 independently detailed events well before, during and after the incident which evidence was concise and credible. He also observed that the injuries were consistently referred to by the prosecution witnesses and corroborated by the medical findings.

9. The appellant’s defence was considered and dismissed on grounds that he was feigning ignorance of everything including not knowing his own relative who was a witness in the matter, and the evidence duly placed him at the scene of the incident

10. The appellant challenges these findings on grounds that he was not accorded a fair trial as provided under Article 50 of the Constitution of Kenya. Further that the charge was not proved beyond reasonable doubt as he was denied access to witnesses’ statement, and the trial magistrate shifted the burden of proof to the defence.

The appellant also lamented that the trial magistrate did not warn himself of the dangers of visual identification nor was the motive for the attack proved.

11. The appellant argued his appeal by way of written submissions where he stated that although the court had directed that the prosecution supplies him with copies of witness’ statements this never happened. He also submitted that the prosecution failure to establish the motive for the attack was an indication that he was just being framed and it is not practical that he could just harm PW1 for no reason. It was also his contention that the intensity of the moonlight was not established and it should not be lost to the court that under unfavourable conditions even close relatives can make mistakes on identity. He therefore urged this court t acquit him.

12. In opposing the appeal, MR OLUOCH on behalf of the State submitted that the appellant never raised the issue regarding the witnesses’ statement anywhere in the course of the trial, and he infact proceeded with the matter in a manner to suggest that he had the statements. MR OLUOCH referred this court to various dates during the trial where the appellant indicated to the court that he was ready to proceed. It is his contention that if the appellant had not been supplied with the statements, nothing would have prevented him from informing the court about that, and the court should treat this claim as an afterthought.

13. In response the appellant stated that after the court had made the orders for supply of the statements, he was told to pay some money which he did not have so he never received the same.

14. As regards this issue I have perused the trial court’s record and confirm that on 13/04/2015, the appellant informed the trial court that he was ready to proceed with the case, on 05/06/2015 when the prosecution applied for an adjournment, the appellant opposed on grounds that he was ready to proceed, on 10/o6/2015 and on24/11/2015 the appellant again reiterated his position that he was ready to proceed with the hearing. At no point did he tell the court that he had not received witnesses’ statements and that he felt incapacitated to proceed with the trial and I concur with MR OLUOCH that this limb of his appeal is an afterthought.

15. MR. OLUOCH also argued that there is no legal requirement that motive must be established to prove a charge of grievous harm nor is there any legal provision that bars a court from relying on evidence based on visual identification. Whereas it is correct that no motive was established regarding the attack, all the witnesses were consistent that the attack was executed without any immediate provocation and was totally unexpected.

16. From the evidence by the prosecution witnesses the attack occurred at 8. 00pm, which under ordinary circumstances would find the earth engulfed in darkness. However PW1 told the trial court that:

“The moonlight was bright enough to enable me see”

PW2 also stated that “it was not so dark” while PW5 said:

“There was some clear moonlight on that day, although it was not clear, I could identify people”

17. The trial magistrate in his judgment took into account the fact that the whole case rested on the issue of positive identification which was by recognition. He was cautious about identification of a suspect at night noting that the court was required to approach such evidence carefully to avoid possible miscarriage of justice through mistaken identification, and he pointed out that even relatives and friends can make errors in identification. Having made these observations, the trial magistrate was however persuaded that the identification of the appellant was free from error because this was identification by recognition which was more reliable than identification of a stranger.

18. Further that the witnesses consistently revealed the appellant’s identity and names to various different persons, and they gave a logical, elaborate and concise recollection with regard to the circumstances under which the attack was executed. Indeed the opportunity for identification was not dictated by a mere glance followed by the attack-the appellant actually sat down with PW1 and PW5 for a few minutes before executing his actions-this gave the witnesses ample opportunity to see and recognize the appellant who was not a stranger to them. I cannot fault the analysis by the trial magistrate and the conclusion he made. I find and hold that the conviction was safe.

19. Was the sentence harsh or excessive? The offence attracts a maximum sentence of life imprisonment. The complainant lost the use of one eye completely which was classified as maim, and the trial magistrate observed that even at the time of testifying he had a raw long ugly facial wound. It is on account of the nature of injuries inflicted that MR OLUOCH urged the court not to interfere with the sentence. I have considered the evince as regards the nature of injuries inflicted, the victim lost one eye as a result of the attack and I think the sentence meted was fair under the circumstances and I confirm it.

20. Consequently the appeal is dismissed in its entirety

Delivered and dated this 2nd day of February, 2017 at Homa Bay.

H.A. OMONDI

JUDGE