[2014] KEHC 6716 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO.34 OF 2013

(An Appeal arising out of the conviction and sentence of Busia P.M.Cr. case No.1201 of 2008 delivered by K.W.Kiarie C.M. on 28th of September 2012)

REPUBLIC …………………………………………………..APPELLANT

VERSUS

HILLARY MUTETE …………………………...………1ST RESPONDENT

RAMSON BARASA OMAR …………….…………2ND RESPODNDENT

J U D G M E N T

1. J O met his sudden and untimely death on 14th November 2006 at [particulars withheld] Trading in Busia Centre. It was alleged that Hillary Mutete and Ramson Barasa Omar were responsible for that death and were charged with Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

2. At trial, the Prosecution called 12 witnesses so as to prove its case. There seems to be some confusion in the typed proceedings as to the order of witnesses and this Court has therefore adopted the order in the original list of witnesses.

3. J J O (PW3) shares two names with the deceased. He is the father of the Deceased. When he returned home, at 4. 00p.m, on 14th of January 2006 he was told by his wife C T (PW9) that his son had been killed. They both proceeded to Funyula Police Station and later to the mortuary at Busia District Hospital. There they found the body of their child. PW3 observed that the child had a depression to his scalp and bruises on the head, neck and hands. While PW9 saw the child’s face was swollen and so were his loin and legs. They later visited the Officer In Charge of Funyula Police Station whom they found with the Respondents and one Joseph Donald. PW3 explained the purpose of his visit and alleged that the three were responsible for the death of his child. This angered the 1st Respondent who slapped him.

4. A W (PW1) (recalled later as PW7) was one of the people who saw the deceased meet his death. On 14th of November 2006, at 6. 00 a.m. PW1 got down to work at a hotel in [particulars withheld]. On her way to buy sugar she saw the 1st and the 2ndRespondents beating a young boy who was dressed in the uniform of [particulars withheld] Primary School. The 1st Respondent had a metal bar while the 2nd Respondent had a walking stick. There was also a third person by the name Joseph Dawali.

5. The other person who is said to have witnessed the assault is PW5 C N S PW5) . She too was at [particulars withheld] Shopping Centre on the morning of 14th November 2006. She saw a crowd of people outside the shop of the 1st Respondent. The people were beating a child. The child was J. Amongst his assailants were the 1st and 2nd Respondents. In the assault, the 1st Respondent used a stick and kicked the boy using boots he was wearing. He says that the 2nd Respondent and another by the name Joseph Barasa used sticks to inflict injuries on the boy. Those sticks were said to have been seen by J W (PW 8) on her visit to the scene.

6. PW8 told Court how he found the 1st and 2nd Respondents and one Joseph Daudi assaulting a school boy who was dressed in school uniform. The 2nd Respondent used a stick while the 1st used a metal bar. The assault left the boy unconscious.

7. Although M M A (PW 3) never witnessed the assault on the Deceased, she was on the morning of 14th November 2006 near [particulars withheld] Trading Centre when she saw some children of [particulars withheld] Primary School running as they shouted “mwizi mwizi” (thief thief). The running children appeared to be chasing someone whom she did not see. She later learnt that the Deceased had been assaulted and died. T W M (PW6) was one of those who also heard the pupils shout. He later saw a child whom he recognized as the son of PW3 lying down. The boy was later carried into a Police motor vehicle and driven away. Later, the Police told him that some of the witnesses had mentioned him as one of the people who had assaulted the child.

8. Dr. Zacharia Njau (PW 10) was a Doctor who at the material time was attached to Alupe Sub District Hospital. He conducted a postmortem on the Deceased’s body on 17th November 2006 and formed the opinion that the possible cause of death was severe head injury. The request for the postmortem had come from Busia Police Station.

9. PC John Chebii (PW 12) was at Funyula Police Station on 14th November 2006 when he was instructed by CIP John Ngiro to accompany him to [particulars withheld] Centre where a child had been subjected to mob justice. On arrival at the scene, they found the deceased lying unconscious. He was bleeding from the nose, mouth and head. At that time, members of the public who were close to the scene, stood some distance away from the injured boy. He received information from some members of the public that the boy had been subjected to mob justice after he had stolen on the previous day. They took the badly injured boy first to Nangina Mission Hospital and later to Busia District Hospital where he met with his death.

10. Inspector Julius Kasiwai (PW 12) took over the investigation of the incident on 15th of June 2006. He is the one who recorded statements from various witnesses and compiled an inquest file which was forwarded to the office of the Director of Public Prosecution. On the advice of that office, a public inquest was conducted. It was the testimony of PW 11 that these investigations revealed that the deceased had on 13th of June 2006(?) stolen some items from the shop of the 1st Respondent. That on the next day, an alarm was raised when the Deceased was seen at the [particulars withheld] Trading Centre. That a mob of people descended upon him and beat him up. That a few people who were said to be present identified some people who had beaten the Deceased.

11. In defence, the 1st Respondent gave a sworn statement while the 2nd Respondent did not present any evidence.The 1st Respondent confirmed that some property had been stolen from his wife on 13th of November 2006. That the child who had stolen his wife’s property had been identified by some people. The suspect was the Deceased. That when he was confronted the boy’s father, the father told him that his son was not at home. And that the boy had visited Uganda three days earlier. That on the morning of 14th November 2006, he visited the Deceased father’s home and asked the Deceased’s father(PW 3) to lead him to Uganda where the boy was alleged to have visited.That the father declined and the Deceased’s mother became abusive and so he left. That at 7. 00a.m he got a telephone call from two traders by the names Dan and Okech who informed him that the boy had been arrested with some stolen items. When he arrived at the Trading Centre at 8. 45 a.m. he found a big crowd of people and the Deceased having been beaten. The Police from Funyula arrived at the scene and took the boy to hospital. He denied the charges.

12. As a first Appellant Court, I must re-evaluate all the evidence presented at trial and reach my own conclusion. But in doing so I must bear in mind that unlike the Trial Court I never saw the witnesses testify and due allowance must be given for that (Republic –vs- Okeno [1972]E.A.32)

13. This appeal is brought by the State who raised two grounds:-

1. The judgement does not comply with the clear provisions section 21 of the penal code Cap 63 Laws of Kenya and section 169 of the criminal procedure code.

2. The learned trial Magistrate failed to appreciate evidence on record and proceed (sic) to acquit the respondents even after establishing their involvement of the heinous act.

Arguing the Appeal, Mr. Obiri submitted that PW1(also PW7 ) PW5 and PW6 gave eye witness accounts of how the Respondents assaulted the Deceased. That the evidence of the trio was collaborative of each other and consistent. It was his argument that there was no reason for the Trial magistrate to disregard this evidence. It was also submitted by him that participation of the Respondents in the assault was enough to establish a common intention in terms of Section 21 of the Penal Code.

14. The Respondents through Counsel argued that Section 21 of the Penal Code bore no relevance to the charge facing the Respondents. It was argued that Section 21 which emphasizes common intention presupposes mens rea.That on the other hand, in a charge of manslaughter the only ingredient that is relevant is actus reus. In the absence of mens rea, it was submitted, Section 21 cannot apply.

On the sufficiency of the evidence, it was the argument of Counsel that all those who mentioned the Respondents were relatives of the victim who had scores to settle.

15. The Courts determination starts by deciding whether Section 21 of The Penal Code is relevant at all to these proceedings. Section 21 provides:-

“21. 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.”

16. It was argued by the State Counsel that the following remarks by the Learned Trial Magistrate demonstrated a misapprehension of the purport of Section 21,

“ The first accused submitted that there is no evidence to prove that he inflicted the fatal blow. That submission is acceptable because very many people beat the deceased and none has been singled out to have inflicted the killer blow.”

17. As I understand the provisions of Section 21 two or more persons shall each be deemed to have committed an offence which was a probable consequence of an unlawful purpose which they, with a common intention, set out to prosecute. And the common intention can be construed by not only what the perpetrators say but also their conduct.The Prosecution case was that the Respondents, in conjunction with others not before Court, set out to beat up the deceased. They all participated in inflicting blows on the Deceased. In my view by participating in the mob justice each person who inflicted a blow formed a common intention with each other participant to physically assault the Deceased. The Act of assault is unlawful. And death of a victim is a probable cause of a physical assault to the victim. So although the assailants may not have had the intention of causing the death of the Deceased, by participating in an unlawful Act that had a probable consequence of leading to his death each of the persons who participated is deemed to have committed the offence of manslaughter. In this regard this passage from the decision of Rex versus Tabula Yenka S/o Kirya and 3others[1943] 10EACA 51 quoted recently with approval by the Court of Appeal in Nairobi Criminal Appeal No.509 Mabel Kavati &Another v Republic [2014] e KLR is instructive,

“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 the omission of any of them to disassociate himself from the assault.”

18. So was there cogent evidence of the Respondents participation? PW1 says that the Respondents assaulted the Deceased. Her evidence was that,

“Hillary Mutete had a metal and Barasa Omari had a fimbo.”

Hillary is the 1st Respondent, while Barasa is the 2nd Respondent. It was her testimony that she only saw 3 people beat up the Deceased and never saw any school children at the scene.

19. PW5 who also claims to have witnessed the assault says this of the assault,

“Hillary Mutete Matete and Joseph Dawadi (Hillary Matete, Joseph Dawadi and Barasa Omari) were beating a boy called J the son of J K and J O……Hillary Mutete used a stick and boots to assault the boy. He was wearing boots. Barasa Omary and Joseph Barasa also used sticks.”

20. Then there is the evidence of J W (PW8). His testimony is that he found Hillary Mutete, Barasa Omari and Joseph Daudi beating up a school boy. The witness further testified,

“Barasa used a Brick and Hillary used a Metal Bar.”

21. The evidence of the three witnesses converge on one aspect. That amongst the three people who assaulted the Deceased were the 1st and 2nd Respondents. The evidence of PW1 and PW8 also agree in another respect. That the 1st Respondent used a metal bar.

22. That said they are notable inconsistencies in the three accounts. PW5 says that he saw the 1st Respondent use a stick (not a metal bar) and boots to assault the boy. This does not tally with the account of PW1 and PW8. Inconsistent as well is PW8’s testimony that the 2nd Respondent used a brick.

23. Can the deviations be overlooked as minor discrepancies or are they suggestive of unreliable evidence? This Court has had to weigh in on this question. The difference between using a brick and a walking stick to assault a small boy seems stark. Equally contrasting is the difference between assaulting a small boy by kicking him with boots as opposed to hitting him with a metal bar. That the three witnesses can give such a contrasting account of a single act of assault is disturbing. It would also be troubling that one of the supposed eye witness, A W (PW1 and recalled as PW7) sought to disown a statement she made to the Police where she had implicated one B O and another M M as the other assailants. The credibility of the investigation suffers yet another blow because no explanation was proffered for the seven (7) months delay in the recording of the statement of the third eye witness (PW8). These have the effect of amplifying the disparities in the accounts of the eye witnesses.

24. For the reasons given, this Court is inclined to grant the benefit of doubt to both Respondents. For slightly different reasons, I arrive at the same decision as the Learned Magistrate. The Appeal is dismissed in its entirety.

F. TUIYOTT

J U D G E

DATED, SIGNED AND DELIVERED AT BUSIA THIS 25TH DAY OF FEBRUARY 2014.

IN THE PRESENCE OF:

KADENYI ………………………………………………………COURT CLERK

KELWON ……………….………………….………….FOR THE APPELLANT

WANYAMA …….…………………………..…..FOR THE 1ST RESPONDENT

JUMBA….……………………………………..FOR THE 2ND RESPONDENT