[2022] KEHC 1491 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL APPEAL NO. E121 OF 2021

REPUBLIC....................................................................................................................APPELLANT

VERSUS

JOSPHAT KALULI MUTIA & 2 OTHERS..........................................................RESPONDENTS

(Being an appeal from the original conviction and sentence by Hon. P.M Wechuli SRM

in Tigania CR No.212 of 2018 on 1/7/2021)

JUDGMENT

1. Josphat Kaluli Mutia,Jonah Kariuki Kaluli and Josiah Mweteri Kaluli (‘the respondents’) were charged with the offence of assault causing actual bodily harm contrary to Section 251 of the penal code. It was alleged that on 21/2/2018 at Kaathi Village, Giithu Location in Tigania East Sub-County within Meru County, they jointly, willfully and unlawfully assaulted MUGAMBI GEORGE MUCHIRI by cutting him on the left forearm using pangas, thereby occasioning him actual bodily harm.

2. They denied the charges and the prosecution paraded 6 witnesses in support of its case. They was subsequently tried and acquitted in accordance with section 215 of the CPC.

3. Dissatisfied with the respondents’ acquittal, the prosecution lodged this appeal setting out 7 grounds of appeal which I have collapsed into 3 as follows;

a. The trial court erred in law and fact by failing to find that the ingredients of the offence had been proved by the tight, well corroborated, truthful and consistent evidence of the complainant.

b. The trial court erred in law and fact in dismissing the charges on flimsy technicalities thereby offending the sound judicial principles, yet the evidence by the defence was full of gaping loopholes and inconsistencies to warrant the same being disregarded.

c. The judgement of the trial court was bad in law and against the weight of the evidence, since the defence did not lay a proper defence as required by law.

4. PW1 George Mugambi Muchiri, the complainant, testified that he knew the 2nd and 3rd respondents as the sons to the 1st respondent, who came from his village. On the material day, at around 6. 30 pm, as he was going to his farm aboard his motor cycle, the 1st respondent hit his head with a panga which broke the helmet he was wearing. The 3rd respondent was pulling him off the motor cycle as the 2nd respondent cut his left arm. In the process, he lost Ksh.5,000 which was to be used for irrigating the farm. He screamed, people came and the respondents, who he saw well as it was not dark, ran away. He reported the matter to Mikunduri police station then proceeded to Mikinduri Hospital through Kunati aboard an ambulance. He was also treated at Meru after which he recorded his statement and the respondents were arrested. He did not know why they had attacked him as he had no dispute with them.

5. During cross examination, he denied either having any case with the 1st respondent or the existence of a judgement evicting him from that land. He further denied either cutting the 2nd respondent on the arm and leg or having any dispute with him. He insisted that he had seen the 3rd respondent on the material day. In re-examination, he denied having knowledge of any pending case, save for the one lodged by the 2nd respondent against him the previous day.

6. PW2 Evangeline Kagendo,the respondents’ neighbour, recalled hearing screams near PW1’s home by which PW1 was asking for help so that the 2nd and 3rd respondents could not kill him. When she went there, she was able to identify the respondents as the people who had assaulted PW1. There were many people as it was not dark and Martin came with a motorcycle.

7. During cross examination, she stated that PW1 was her neighbour and brother-in-law who was on the farm which had miraa and trees and that when others ran away, she stayed behind.

8. PW3 Dr. Seth Maore, of Meru Teaching and Referral Hospital produced PW1’s P3 form filled on 23/2/2018 together with a receipt, on behalf of his colleague Dr. Omago. He said that the document showed that PW1 had a deep cut wound on the left forearm which was days old and the degree of injury was classified as harm. The probable type of weapon used was opined to have been sharp. on cross examination, he stated that he was not the one who had examined the patient.

9. PW4 Martin Gikundi,was at his home on the material day at around 6. 30 pm when he saw the complainant, who was about 10 meters away, going to his farm aboard a motorcycle. He then heard PW1 screaming saying he was being killed. When he reached there, he saw Kalule hit PW1 with a panga on the head once. The 2nd respondent cut the complainant’s left hand using a panga while the complainant, who was being pulled by the shirt by the 3rd respondent, fell on the motor cycle. He added that many people came, the respondents ran away with their pangas as he took PW1’s motorcycle to a neighbour and went away.

10. During cross examination, he stated that he was walking behind PW1 and when PW1 screamed, he was 10 meters from the gate of the farm. There was miraa on the land and he knew people who were assaulting the complainant well since he observed them for about 5 to 7 minutes. He identified Kalule as the first person to cut PW1 on the head but he did not bleed since he had a helmet on. PW1 was also cut on the fingers and that Kirianki who lived nearby and other people came. He used to see PW1 on the land and he took him to Misheck’s home.

11. PW5,P.C Saitoti,a police officer stationed at DCI, Tigania Central, had taken over the file from his colleague who had since been transferred. That filed revealed that on the material day, a report of assault was made by the complainant and the ensuing investigations established that PW1 had gone to water his miraa plants with a motor cycle when the respondents, all armed with machetes and crude weapons, attacked him. PW1 was cut on the left forearm, the motor cycle was damaged and the motive was land dispute. He produced 2 photographs as exhibits in court.

12. During cross examination, he stated that the initial investigating officer established that there was a land dispute whose ownership documents were in the name of the complainant. He did not establish who was in occupation of the land and the photographs were taken at the scene by the investigating officer. There was neither a certificate of photographs nor an exhibit memo on record. He neither visited the scene nor did a statement under inquiry, as the latter was not mandatory.

13. In their sworn statements, DW1, the 1st respondent, Josephat Kalule testified that he was at home with his wife on the material day, when he was called by his son, DW2 at 7. 00 pm. DW2 informed him that Solomon Thanbwa, son to George M’Kirichiu had beaten him while he was on his, DW1’s land 5153. He did not see the assailant and he did not know whether the beating took place on the road or on the farm. The complainant was claiming ownership of that land but he was the one using it to date. They had a case at the land’s office and AR and he was given the land. He had the AR proceedings and a confirmation letter. He stayed 200 meters from the land and it was his son who occupiess and uses the land.

14. During cross examination, he maintained that he was at home on the material day and not at the scene. He had reported at the police to enable a defence of alibi. He had done a case with the complainant, who was called Solomon Kaumbuthu, then.

15. In re-examination, he reiterated that he had done a case with Solomon who had sued him. He knew the complainant as Solomon M’tirichu and not Mugambi Muchiri. He had a case with the complainant, when he was known as Solomon at the land’s office.

16. DW2 Jonah Kariuki, a miraa dealer, was on the material at his father’s, DW1’s farm, No.5153. As he left at 6. 30 pm, Solomon, the complainant accosted him. The complainant jumped on him with a panga as he was watering miraa. The complainant and others beat him with stones, he fell, they started cutting him and when he screamed, they ran away. Since he was injured, he went to a neigbour’s place namely John Lairima and called DW1 who came to take him home. He reported the next day at Mikinduri that Solomon Kaumbuthu Alias Mugambi Muchiri Alias Mbeere had beaten him. The complainant was charged but the case was subsequently withdrawn. He and his father, who stayed 2 kilometres from the land, were the ones using the land and Solomon stayed far from it.

17. During cross examination, he reiterated that the complainant was brought to court to face the assault charges but he was never called to testify. He denied either beating the complainant or being present during the AR case. In re-examination, he stated that the police never called him to court to give evidence in a case of his assault.

18. DW3 Josiah Mwedeni, a form 2 student at Githombe Secondary School was on the material day at school. After doing mid-term exams, he went for games at Kagaene leaving that place at 9. 30 pm and he did not see the complainant that day. He had a letter from the principal to show that he was in school and a certificate of participation. He learnt of the land dispute between DW1 and PW1 from his father, and his father used the land up to date he gave evidence in court.

19. During cross examination, he stated that when the case started, he could not continue with his education due to lack of school fees. He did not make a report of alibi to the police and he did not see his brother being beaten, as he was in school.

20. In re-examination, he stated that after he had quit school, he told the police that he was not at the scene. He concluded that he was not requested to write a statement.

21. DW4 P.C Kipchumba Stanley,initially attached at Mikinduri police station booked an assault report from DW1 through OB No.17/22/2/2018 by which the 1st respondent alleged to have been assaulted by Solomon Mugambi Alias Kaumbuthu Muchiri and recorded the statement of DW2, as the complainant. When he visited the scene on 25/2/2018 at 10 pm, he saw traces of blood, a comb and brush and some coins belonging to DW2. He photographed the scene after recovering DW2’s phone from the banana plantations and issued him with a P3 form. The case was dismissed after his inability to procure the attendance of DW2, who lived in a place with no network. When the perpetrator was arrested by officers from Mlango, he did not see physical injuries on his body, but DW2 had physical injuries. He produced DW2’s P3 form, the statements and the investigation dairy in respect to criminal case No.208/18 as exhibits in court. During cross examination, the witness stated that as per the warrant in criminal case No.208/18, the accused person was George Muchiri Alias Kaumbuthu Muchiri and the name was captured as George Mugambi Alias Solomon Kaumbuthu Muchiri in the charge sheet. The criminal case No.208/18 never took off but it was withdrawn under section 87 A of the CPC.

22. In re-examination, he stated that the accused in 208/18 said Solomon was his nick name but his real name was George Mugambi.

23. DW5 Collins Kirinda, the secretary of Githuri Mixed day secondary school, confirmed that DW3 used to be their student, who was on the material day doing mid-term exams. DW3 then went for games at Kaliene School and came back to school at 7 pm. He produced a letter from the school dated 4/7/2018 and a certificate of participation as exhibits.

24. During cross examination, he stated that although the letter did not have a letter head, it had the principal’s stamp, who would have come to testify save that he was admitted at Maua Methodist Hospital. He stated that the letter was hand written because the school computer had broken down.

25. In re-examination, he stated that he wrote and signed the letter which was stamped by the principal and that the certificates were prepared, sent to the school and dispatched to the participants.

26. DW6 Kennedy Kiplimo Kemei, from land office Tigania East produced the confirmation and AR documents as exhibits.

27. The trial court in a reserved judgment dated 1. 7.2021,acquitted the respondents and determined that the prosecution had not proved the case against the respondents beyond reasonable doubt. That determination dissatisfied and aggrieved the prosecution who then filed the current appeal setting forth seven grounds of appeal. Even when so set out, the challenge on the appeal can be summarised to be that the case was properly proved with not only cogent but also corroborated evidence starting with the ingredients of the offence,and that the dismissal disregarded established principles of law while relying defence evidence that was discordant and that the decision was against the weight of evidence and grounded on flimsy technicalities.

Submissions

28. The parties were directed to file respective submissions to the appeal on 14/10/2021, but it appears only the appellant filed. In the submissions it is contended that it had proved all the ingredients of assault causing actual bodily harm as set out in Ndaa v R(1984)eKLR and further relied on Rex v Donovan(1934) 2 kb 498, on the definition of bodily harm. It faulted the trial court for considering irrelevant facts not before it and dismissing the case on flimsy technicalities devoid of sound principles. It also submitted that the defence of alibi, having been raised at the tail end of the trial was an afterthought which ought to have been disregarded, and relied on R v GNK(2017)eKLR, for the proposition that, an alibi defence ought to be raised at the earliest opportunity to afford the prosecution an opportunity to investigate the truth or otherwise of the same. It urged the court to re-look into the issues, facts, evidence, the law and proceed to set aside the judgement and convict the respondents accordingly.

Analysis and Determination

29. As the first appellate court, it is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusions. However, in doing so, the court must warn itself that it did not have the advantage of seeing the witnesses testify in order to gauge their demeanor. See Okeno v Republic [1972] EA 32.

30. The sole issue for determination is whether the trial court erred in its assessment of the evidence led when it concluded that, the prosecution had not proved its case against the respondents beyond reasonable doubt.

31. My starting point is whether the complainant was assaulted by the respondents and if that assault occasioned him actual bodily harm. In his evidence, the complainant asserted that as he was going to his farm aboard his motor cycle, he was cut on the head and left arm with a panga by the respondents and that had it not been for the helmet he was wearing, he would have sustained serious head injury. That evidence was corroborated by the testimonies of PW2 and PW4.

32. On their part, the respondents told court that it was PW1 who had accosted and beaten the second respondent (DW2) and that the the first and 3rd respondents were not at the scene.

33. What I find to be the obvious root of the dispute, from the evidence on record, is the existence of a land dispute between the complainant and DW1. DW1 stated that the complainant was claiming ownership of that land, but he was the one using it to date. DW1 concurred that there was a case at the land’s office and produced Adjudication Records which had adjudged him the owner of the land. In addition, PW1 admitted in re-examination that DW2 had lodged a criminal complaint against him on the 22. 2.2018 as confirmed by DW6 who then arrested the complainant to face charges of assaulting DW2. That case was however dismissed after the 2nd respondent failed to attend court and give evidence.

34. Up to this juncture, it becomes clearer that the both sides had escalated their land dispute to the criminal law field. I however note that both made a complaint to the police on the same day and both were issued with p3 forms. The existence of the land dispute between the complainant and 1st respondent can however not be a justification for assault by either on the other.

35. That there was a fight, at the least, between Pw1 and Pw2 and that both were seen by doctors and established to have suffered injuries is not in dispute but confirmed by the two. The issue is who between the two attacked the other first and whether either was acting in self defence.

36. The evidence of Pw1 as corroborated by that of Pw2, and 4 tally that PW1 was on a motor cycle when he was first attacked. They also agree that PW1 suffered cuts a fact confirmed by PW3. I have found nothing on record to disbelieve that set of evidence. I find the same credible and consistent for no allusion was made about any bad blood between PW2 and 4 as against the 2nd respondent. I also find that the attack was not on the firm as alleged by 2nd respondent. This follows the evidence of DW4, the investigating officer in the case against PW1 that the fight was besides the road and not in the farm as stated by 1st and 2nd respondents. I find the evidence of DW4 to tally with that by PW1,2 and 4 that Pw1 was attacked on the road as he was headed to the farm. I therefore find that the attack having occurred on the road and not on the farm said to have been adjudged to belong to the 1st respondent, the same was unlawful and displaces any justification in the nature of defence to property. I hold that it was the 1st and 2nd respondents who attacked PW1 and not vice versa.

37. However, there was the evidence by DW3 corroborated by DW5 and further supported by documents from Githu mixed Secondary School and Tigania Central Secondary Schools Sports Association to the effect that on the material day the 3rd Respondent was engaged in sporting activities at Kaliene Secondary School and was so certified. That evidence was never challenged and does establish an alibi that even though came late in the day cannot be ignored. I do find it that there was at the conclusion of the case a reasonable doubt whether the 3rd respondent was not in fact away from the scene. I resolve that doubt and give the benefit to the 3rd respondent and uphold his acquittal.

38. Having so found, the evidence of PW3 went along way and beyond reasonable doubt that the injuries of P.W 1 a deep cut wound on the left forearm and amounted harm. In the case of Alex Kinyua Murakaru v Republic [2015] eKLR the court in defining actual bodily harmheld:

“...actual bodily injury is any physical injury to a person (which is not permanent), or psychiatric injury that is not merely emotions, fear or panic. To make out the offence, the prosecution must show that there has been an assault, and that the assault has resulted in actual bodily harm. There must be an intention to assault (mens rea) and the assault must have taken place (actus resus).”

39. It being my find that the evidence shows that on the material day, 1st and 2nd respondents attacked and accassioned to the Pw1 actual bodily harm, I hold that when the trial court held that the case had not been proved beyond reasonable doubt, the trial court erred. For that error, the acquittal is set aside and substituted with an order for conviction. The file is remitted bank to Tigania law court for purposes of mitigation and sentencing by the trial court.

DATED SIGNED AND DELIVERED THIS 18TH DAY OF MARCH 2022

PATRICK J.O OTIENO

JUDGE

In presence of

Mr. Maina for the appellant

No appearance for respondent

PATRICK J.O OTIENO

JUDGE