[2017] KEHC 108 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL APPEAL NO 48 OF 2016

PETER KIMANZI MALII...............1ST APPELLANT

TITUS KIKUYU MUASYA.............2ND APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in Mutomo Senior Principal Magistrate’s Court, Criminal Case No.167 of 2016 by Hon. S. K. Ngii, Resident Magistrate on 11th August, 2016)

J U D G M E N T

1. Peter Kimanthi Malii and Titus Kikuyu Muasya, hereinafter the “1st Appellant”and“2nd Appellant” respectively were charged with the two (2) counts of assault causing actual bodily harmcontrary tosection 251of thepenal code.

2. Complainants in the 1st countand2nd count were Kivisu NyamaiandMukai Nyamairespectively. The particulars of the offence indicate that they jointly unlawfully assaulted them thereby causing them actual bodily harm.

3. They were tried, convicted and sentenced to serve 1 ½ years imprisonment on each count. The sentences were to run consecutively.

4. Aggrieved by the conviction and sentence meted out, the Appellant appealed on grounds that:

The first report made at Ikanga Police Station was not availed in court to be considered by the court which relied upon the second one made at Mutomo Police Station.

Charges against the Appellants were trumped up against them as a result of a land dispute.

Crucial witnesses were not called to testify because they would have stated the truth which would have resulted into their acquittal.

They were not granted the opportunity to cross-examine the complainant exhaustively.

The investigation officer was incompetent.

The case was not proved to the required standard.

5. Facts of the case were that on the 9th April, 2016at5. 00pm, PW1 Kivisu Nyamai the complainant in the first count was at home when he was attacked by three people that he identified as the Appellants and another one Mutie. He screamed and attracted the attention of his wife, PW2, Mukai Kivisu. On arrival at the scene she was also assaulted. Both of them sustained injuries. They reported the matter to the police and sought treatment at the Ithanga Hospital. PW2 was referred to Kitui District Hospital. Thereafter their P3 forms were filled at the Mutomo District Hospital. The Appellants were arrested and charged.

6. When put on their defence, the 1st Appellant gave an alibi defence. He stated that on the date it was alleged that he assaulted the complainants he was away in Nairobi. He denied being aware of any differences that may have caused them to assault the complainants.

7. The 2nd Appellant denied having been to the complainants home on the material date.

8. The 1st Appellant called a witness, DW3, Florence Martha John who stated that he was away from home. She saw him on 3/5/2016 and he was arrested as soon as she left.

9. The Appeal was canvassed by way of written submissions m/s Lempaa Suyianka & Co. Advocates for the Appellants submitted that evidence adduced by the prosecution witnesses was contradictory and it lacked corroboration. Neighbours alluded to by PW1 were not called as witnesses. These neighbours were crucial, their evidence could have corroborated that of PW1. He cited the case of Joseph Munyoki Kimatu – V- Republic (2014) eKLR.

10. That the investigating officer failed to tell who was the aggressor between the Appellants and the complainants. Therefore, investigations were not carried out properly. That evidence on record did not support the injury that was assessed as actual bodily harm.

11. Further, it was submitted that the Appellants rights to fair trial were violated. That there was nothing on record to suggest that the Appellant was informed of the consequences of trial as envisaged by Article 50 (2) (g) of the constitution and the right to be represented by an advocate. They were not informed that they were likely to be given a custodial sentence that was likely to compromise their liberty.

That no explanation was given to the Appellants of their right to choose the language that they understood as it was not enough to record the language as “Kamba/Swahili”. That there is no indication of an explanation having been made to the Appellants on how to defend themselves when they were placed on their defence pursuant to Section 211 of the Criminal Procedure Code and that mitigating factors were not considered by the court.

12. In response the state through Mr. Wanjala, Prosecuting Counsel opposed the appeal. He stated that the statements of PW1 and PW3 on how they were assaulted were corroborated by evidence adduced by PW3 who found PW2 unconscious. The injuries sustained by the complainants were confirmed by PW4. That the alibi defence put up could not confirm that the appellant was not at the scene of the incident. That the sentence imposed was lawful.

13. This being a first Appeal I am duty bound to reconsider evidence adduced at trial, re-evaluate it and draw my own conclusion in deciding whether the conviction and sentence should be upheld; bearing in mind that I neither saw nor heard witnesses who testified. (See Okeno vs Republic (1972) EA 32).

14. Ingredients of the case of assault causing actual bodily harm were stated by the court of appeal in the case of Ndaa – V – Republic (1985)thus;

“ (a) assaulting the complainant or victim.

(b) occasioning actual bodily harm”

15. Per the evidence adduced, the two (2) Appellantsandanother,Mutie,went to the home of the complainants. On arrival the 1stAppellant lifted up the chair on which the 1stcomplainant sat. On seeking to know why he did so he,Mutiehit him on the right side of the neck. He struggled with him and both of them fell down. At that juncture the other person, Mutie hit him on the forehead with a stone. On hearing the commotion and screams the 2ndcomplainant ran to the scene only to be hit by the 2ndAppellant,Tito Kikuyuwith a stick on her back andMutiehit her on the left side of the face. The impact made her fall down and the 1stAppellant hit her on the head with a stone. She ran to their neighbour’s home. The assailants followed her tied her with a rope on the neck and pulled her outside. The 1stAppellant hit her on the body with a piece of wood and she lost consciousness.

16. Evidence adduced by both complainants prove the fact that the Appellants physically attacked them. This was an assault upon their persons.

17. The complainants were subjected to medical examination and treatment following the assault. The 1st complainant sustained injuries as follows; The face region was tender and bruised. The chest region was tender and there was a wound on the left middle finger. The degree of injury sustained was assessed as harm. The 2nd complainant sustained a would on the right temporal region that was also swollen and tender; the upper lip had a wound; the left loin region was tender and swollen. The degree of injuries sustained was assessed as harm. This was proof beyond doubt that the complainants were assaulted and they sustained actual bodily harm.

18. The prosecution has been faulted for failing to call crucial witnesses in particular the complainants children and a neighbour in whose home the 2nd complainant went to seek refuge only to be pursued and assaulted further.

19. In the case of Julius Kalewa Mutunga – Vs- Republic Criminal Appeal No. 31 of 2005(unreported) it was stated that;

“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by same oblique motive”

20. In the cited case of Bukenya and others – Vs- Uganda (1972) EA 549it was stated that:

“….where the evidence is barely adequate the court may note that the evidence of uncalled witnesses would have tended to be adverse to the prosecution”.

21. In this case witnesses gave evidence regarding who assaulted them. There was proof that they were assaulted and they suffered actual bodily harm. There was nothing to suggest that in failing to call other unnamed persons who went to the scene after the incident, the prosecution had an ulterior motive. Therefore, that ground of appeal fails.

22. It is trite that an accused person must be accorded a fair trial as enshrined in Article 50of theConstitution.

Article 50(2) (g)of the Constitution of Kenya, 2010 provides that.

“Every accused person has the right to a fair trial, which includes the right—

(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;

23. Failure to inform the Accused properly of the right to representation by counsel of his choice should depend on whether or not there was miscarriage of justice. This is a case where pre-trial directions were given. The Appellants had ample time to prepare for their case from the 5th May, 2016 when they were arraigned in court up to 30th May, 2017 when the case proceeded. They were given the opportunity to retain Counsel of their choice. In the circumstances they were not prejudiced.

24. It is also submitted that when the appellants were put on their defence pursuant to the provisions of the Section 211 of the Criminal Procedure Code the record is silent on whether an explanation was rendered by the court as to how they were to defend themselves. Section 211 of the Criminal Procedure Code provides thus;

“(1) At the close of the evidence in support of the charge, and after hearing suchsumming up, submission or argument as may be put forward, if it appears to thecourt that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of thecharge to the accused, and shall inform him that he has a right to give evidenceon oath from the witness box, and that, if he does so, he will be liable to cross examination,or to make a statement not on oath from the dock, and shall askhim whether he has any witnesses to examine or other evidence to adduce in hisdefence, and the court shall then hear the accused and his witnesses and otherevidence (if any).

(2) If the accused person states that he has witnesses to call but that they arenot present in court, and the court is satisfied that the absence of those witnesses isnot due to any fault or neglect of the accused person, and that there is a likelihoodthat they could, if present, give material evidence on behalf of the accused person,the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses”.

The record shows that the learned magistrate acted as follows:

“Court: Upon explanation of the provision of section 211 of the criminal procedure code 1st accused elects to give unsworn statement with one witness whereas the 2nd accused elects to give similar defence with one witness”.

25. In the case of Kossam Ukiru – V – Republic (2014) eKLR where the Court of Appeal was confronted with a situation where the trial magistrate recorded that he complied with the provision of the law and the Appellant went on to give sworn evidence whereafter his case was closed, it stated that;

“The Appellant also complained that the provisions of section 211 of the criminal procedure code were not explained to him. According to the appellant, the trial magistrate should have recorded that she informed him of his right to give evidence on oath or otherwise or remain silent and also call witnesses. In his view, merely recording that she had complied with the provisions was not enough. In our view, this complain is without substance. We say so, because the record shows that when it was the turn of the Appellant to respond to the case presented by the prosecution, the learned trial magistrate recorded:-

“Section 211 of the criminal procedure code complied with sworn evidence – witnesses- Nil”

After this the Appellant is recorded to have given a sworn statement and his counsel then closed the case.

In our view, the appellant is hanging on straws…. We do not think that failure to record the exact words of section 211 of the criminal procedure code in any way prejudiced the appellant. There was, in our view, no failure of justice and the appellant’s complaint. In that regard lacks merit and we reject it”.

26. In the instant case, the wording of Section 211 of the Criminal Procedure Code was not recorded. However, it is clearly stated that it was explained. Though the record is silent on what the Appellants stated verbatim – The court recorded what their option was. Subsequently, they adduced evidence in their defence and called a witness who was heard by the court. The appellants were not prejudiced as a result. The trial cannot be deemed to have been unfair on that ground.

27. An accused person has a right of communicating in a language that he understands. Article 50(2) (m) of the Constitution, 2010 is very clear where an accused person does not understand the language used at trial, an interpreter is usually present. In the case of Said Hassan Nuno – V- Republic (2010) eKLR. The court of Appeal stated that;

“At each stage of the proceedings a court clerk was in attendance and we took judicial notice that one of the core duties of a court clerk is to offer interpretation services to accused or even to the court where it does not understand the language of the accused; or a witness to the case…”

28. Right at the outset when the Appellants were arraigned before court there was a court interpreter. When witnesses testified they were cross-examined and when put on their defence they defended themselves. The interpreter who was present throughout the proceedings offered interpretation services therefore the Appellants were not prejudiced.

29. It is important to point out that on cross examination by the 2nd Appellant the 1st complainant clearly stated that he did not see him at the scene and he did not assault him. According to his testimony people who went to his home were two (2), the 1st Appellant and Mutie. However, PW2, the 2nd complainant stated that on hearing screams he ran home to find the 2nd appellant standing at the gate holding a stick and on seeing her he hit her with the stick. On entry of the compound he found the 1st Appellant and his brother Mutie assaulting the 1st complainant. The question begging is whether they had a common intention.

30. Section 21 of the penal code provides thus;

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

In the case of Rex –V- Mokaeri Kyeyuna and 4 others & EACA 84 the Court of AppealforEastern Africa observed that;

“Any person identified as having taken part in the beating must be regarded as linked by a common intention”.

31. In the case of Rex -V- Tabulayenka s/o Kirya and 3 others (1943) 10 EACA 51the Court of Appeal stated that:

“To constitute a common intention to prosecute an unlawful purpose….it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so called thief. Their common intention may be inferred from their presence, their action and omission of any of them to disassociate himself from the assault”.

32. The fact that the 2nd Appellant remained at the gate and acted on seeing the 1st Appellant’s wife (2nd complainant) by assaulting her is evidence of having been present in the vicinity and having had a common intention with his co-accused. Therefore, even if the trial court did not do a good analysis prior to reaching the verdict, the decision was sound.

33. On sentence the trial court is faulted for not considering mitigating factors. The Appellants stated that the complainants were their cousins. That they were first offenders and they were fighting over land.

34. In the case of Ogola s/o Owuor –vs- Reginum (1954) 270 is was stated thus;

“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentenced on the mere ground that of the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless, as was said in James – vs- Republic (1950) 18EACA 147.

It is now settled law that sentence is a matter of discretion of the trial court and must be based on the facts and circumstances of each case. An appellate court will not normally interfere with sentence unless the sentence is …excessive as based on wrong principles…”

35. In this case, the law provides for a sentence of imprisonment up to five (5) years. In sentencing them the learned trial magistrate stated thus;

“….The sentences shall however run consecutively because the offences were committed in one transaction”.

36. Section 12 of the Criminal Procedure Code provides that;

“Any court may pass a lawful sentence combining any of the sentences whichit is authorized by law to pass”.

Section 14 of the Criminal Procedure Code is in regard to a situation where sentences can run consecutively or concurrently. It provides that;

“(1) Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefore which the court is competent to impose;and those punishments when consisting of imprisonment shall commence the oneafter the expiration of the other in the order the court may direct, unless the courtdirects that the punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for thecourt, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.

(3) Except in cases to which section 7(1) applies, nothing in this section shallauthorize a subordinate court to pass, on any person at one trial, consecutivesentences—

(a) of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or

(b) of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose.

(4) For the purposes of appeal, the aggregate of consecutive sentencesimposed under this section in case of convictions for several offences at one trialshall be deemed to be a single sentence”.

37. In simple English, concurrent means at the same time while consecutive means one after the other in a series.

38. In the case of Sawedi Mukasa s/o Abdulla Aligwaisa (1946) 13 EACA 97, the CourtofAppeal forEast Africa stated that the practice is where a person commits more than one offence at the same time and in the same transaction, save in very exceptional circumstances to impose concurrent sentences.

39. In the instant case the Appellants committed the offences at the same time in a single transaction, this would have called for a concurrent sentence. The learned magistrate appreciated the fact that the offences were committed in one transaction. This therefore calls for interference of the order of the court.

40. In the result, the appeal on conviction which is devoid of merit is dismissed. On sentence I confirm the sentence of one and a half (1½) years imprisonment but alter the order of the court to read: The sentences shall run concurrently.

41. It is so ordered

Datedand Signed at Kitui this 2nd day of November, 2017.

L. N. MUTENDE

JUDGE