[2022] KEHC 11887 (KLR)

Republic v Kangogo (Criminal Appeal E017 of 2021) [2022] KEHC 11887 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11887 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Appeal E017 of 2021

WK Korir, J

July 21, 2022

Between

Republic

Appellant

and

Christine Kangogo

Respondent

(Being an appeal from the judgment of Senior Resident Magistrate Honourable N.M. Idagwa SRM dated 29/6/21 in Kabarnet SPM Court Criminal Case No. 866 of 2019)

Judgment

1. In this case, the state is the appellant. It was the prosecutor in Kabarnet SPM Court Criminal Case No 866 of 2019 Republic v Christine Kangogo. Christine Kangogo who is the respondent herein was the accused person at the trial.

2. The respondent was at the trial charged with the offence of creating disturbance in a manner likely to cause a breach of peace contrary to section 95(1)(b) of the Penal Code. The particulars of the offence were that on the August 2, 2019, at about 12. 00 hours at Kabasis village in Baringo Central Sub-County within Baringo County the respondent created disturbance in a manner likely to cause breach of peace by chasing Margaret Toiyoi Bingat while armed with a panga.

3. At the conclusion of the trial, the magistrate found that the charge had not been proved and acquitted the respondent.

4. The appellant being aggrieved and dissatisfied with the decision of the trial court has, through the petition of appeal dated July 2, 2021, appealed to this court on the grounds that:(a)The learned trial magistrate erred in law and fact by failing to analyse the facts of law relevant to the subject matter, thereby arriving at the wrong decision.(b)The learned trial magistrate erred in law and fact by denying the prosecutor a chance to review evidence in the prosecution case contrary to the mandatory provisions of the Constitution of Kenya 2010, and theCriminal Procedure Act.(c)The learned trial magistrate erred in law and fact by excluding the complainant from attending the courtroom thereby denying her an opportunity of following court proceedings in respect of her case.(d)The learned trial magistrate erred in law and fact by failing to observe relevant legal authority relied upon by the appellant without assigning any reason for doing so.(e)The learned trial magistrate erred in law and fact by failing to allow the appellant humble opportunity to call and exhaust all her witnesses contrary to the provisions of the Criminal Procedure Act and the Constitution of Kenya 2010. (f)The learned trial magistrate erred in law and fact by failing to observe that the prosecution witnesses’ evidence was well corroborated to warrant a conviction.

5. The appeal proceeded by way of written submissions.

6. On the first ground of appeal, the appellant through the submissions dated March 10, 2022, contend that all the salient ingredients of the offence of creating disturbance were proved beyond reasonable doubt against the respondent. The appellant asserts that the trial proceedings show that the offence was committed in broad daylight in the presence of the complainant and her witnesses who were able to clearly identify the respondent and there was no case of mistaken identity. It is the appellant’s case that in view of the evidence on record, the trial court ought to have found that the respondent was culpable as she was the aggressor in the brawl and altercation which took place. The appellant also faults the trial magistrate for ignoring the medical evidence on record which showed that the complainant sustained injuries as a result of being assaulted by the respondent.

7. In regard to the second ground of appeal, the appellant submits that it is necessary for this court to clarify whether the prosecution has a right to seek a review of its evidence in the cause of the hearing and before the close of the prosecution case. It is stated that during the trial the complainant reported to the appellant that her case was not investigated with due diligence by the investigating officer. It is submitted that the appellant wrote a letter dated January 14, 2021 besieging the trial court to temporarily halt the proceedings pending inquiry into the allegation and possible necessary action. The appellant contends that the letter was duly brought to the magistrate’s attention but she proceeded to hear the matter without giving reasons for doing so. It is the appellant’s case that the court’s action rendered the proceedings irregular, and contrary to the relevant provisions of the Criminal Procedure Code and the general principles of natural justice which require that a party should not be condemned unheard. Further, that the trial magistrate’s failure to halt the trial occasioned prejudice and injustice to the complainant.

8. On the third ground of appeal, the appellant submits that the trial court erred by ejecting the complainant from the court proceedings notwithstanding the need to decongest the courtroom due the Covid-19 pandemic. It is the appellant’s case that the complainant was an interested party and she ought to have been present in the proceedings so as to point out any relevant issue to the court or the prosecutor.

9. As for the fourth ground of appeal, the appellant faults the trial court for failing to allow the complainant the opportunity to call and exhaust all her witnesses in order to table evidence to corroborate her case against the respondent. According to the appellant, the relevant provisions of the Criminal Procedure Code provide that the prosecution and the defence shall be allowed the opportunity to call all the witnesses they deem relevant to their cases. It is the appellant’s case that the trial court should have adjourned the case to allow the complainant sufficient time to call all witnesses deemed relevant to her case.

10. On the fifth ground, the appellant submits that there were no material contradictions whatsoever in the prosecution case. According to the appellant, any contradictions in the case were minor and did not go to the core of the case. It is therefore argued that the appellant’s evidence was cogent, corroborated and not contradicted and the respondent ought to have been found guilty as charged.

11. On her part, the respondent through submissions dated May 18, 2022 contend that she demonstrated to the trial court that there were material discrepancies in the account of the appellant’s witnesses, and what this appeal seeks to achieve is the reopening of the appellant’s case and the tendering of new evidence.

12. It is the respondent’s case that the appellant could only have secured her conviction if it had proved that she had caused a brawl in a manner that created disturbance which was likely to cause a breach of the peace. The respondent submits that the witnesses who testified at the trial confirmed that it was the complainant who approached her and that she did not have a panga as alleged. According to the respondent, there was no iota of evidence tendered by the appellant to demonstrate that she caused a brawl.

13. The respondent argues that there was contradiction between the evidence of PW1 and PW2 as to the words she uttered. She relies on the decision in the case of Philip Nzaka Watu v Republic [2016] eKLR in support of her proposition that contradictory evidence should be reconciled in favour of an accused.

14. It is the respondent’s further submission that for the charge of creating disturbance to be proved, the witnesses must be able to link the cause of such disturbance to the sole actions of the accused and that in this case the appellant was unable to give a truthful account of the events making up the charge.

15. According to the respondent, although the appellant talks of assault and medical evidence in the submissions, no such evidence was adduced at the trial. It is the respondent’s case that the appellant is motivated by malice because if she had assaulted the complainant she should have been charged with assault and a medical report produced.

16. The respondent asserts that the appellant’s failure to call witnesses was because the charges were cooked up. It is the respondent’s case that the fact that the trial court allowed the appellant to present its case and call its witnesses is sufficient proof that the hearing was not only just but also fair. In support of her assertion that the appellant was accorded a fair hearing, the respondent states that on August 31, 2020 the appellant’s request for summons to its witnesses was granted by the trial court. She states that when the matter came up for hearing on September 29, 2020, the appellant had not extracted summons and the matter was put off to October 19, 2020 at the request of the appellant.

17. In response to the appellant’s submission that the complainant was excluded from the proceedings, the respondent submits that the trial took place in the middle of the Covid-19 pandemic and the Chief Justice had issued directives for minimal or no physical attendance of court proceedings. According to the respondent, after the complainant testified, she was excused from the proceedings and that there is no law that requires continuous attendance of proceedings by witnesses. It is the appellant’s case that criminal cases belong to the state and the appellant adequately represented the complainant. Further, that the issue of the exclusion of the complaint has just been raised on appeal as an afterthought as it was never raised at the trial.

18. The respondent contends that there was no error by the trial court and the negligence of the appellant cannot be good reason for allowing the appeal. The respondent concludes by stating that she faithfully attended court for more than four years and the appellant wants her to continue suffering by attending court when knowing for a fact that she is innocent.

19. This being a first appeal, the duty of this court is to re-evaluate the evidence tendered at the trial so as to arrive at its own independent conclusions. In doing so, this court will have to bear in mind the fact that unlike the trial court it did not have the benefit of seeing and hearing the witnesses testify. See Okeno v Republic [1972] EA 32 and Ogeto v Republic [2004] KLR 14.

20. On the first ground of appeal the appellant states that the trial magistrate failed to analyze the facts and law relevant to the subject matter, thereby arriving at the wrong decision. A perusal of the trial court record shows that the trial magistrate complied with all the procedures for a criminal trial as laid down in the Criminal Procedure Code while conducting the trial. The judgement of the trial court shows that the magistrate analysed the evidence that was placed before her prior to reaching her decision. That decision was supported by the evidence that was adduced by both the appellant and the respondent. The appellant has not indicated the facts and law missed by the trial court. There is thus no reason placed before the court upon which the trial magistrate can be faulted.

21. The second ground of appeal is that the trial magistrate erred in law and fact by denying the prosecution a chance to review the evidence in their case contrary to the mandatory provisions of the Constitution and the Criminal Procedure Code. In the submissions, reference is made to a letter dated January 14, 2021. No such letter is captured in the trial record and neither do I see it in the court file. What is indicated in the court proceedings of November 12, 2020 is the address to the court by the appellant to the effect that there was a letter dated September 24, 2020 about some advice and an adjournment was requested for the police to effect the advice. The magistrate allowed the application for adjournment.

22. There is indeed a letter dated September 24, 2020 in the court file addressed to the OCS, Kabarnet Police Station by George Mongare, the Assistant Director of Public Prosecutions, Baringo County. Through the letter, the author talks of a protest by the complainant to the effect that although the complainant was chased by the respondent and her two daughters, the daughters had not been arrested and charged. The writer concludes that:“It is in light of these facts that we direct and urge that the police file be forwarded to this office for purpose of a critical analysis on the number and nature of charges to be brought against the accused, and also considering the fact that there are the other two (2) persons connected to the offence most likely to be arrested and charged alongside the accused person.”

23. In the Kenyan criminal justice system, the duty to investigate crimes belongs to the police and the duty to prosecute criminal cases is vested upon the Director of Public Prosecutions (DPP). It is only after theDPP is satisfied that an offence recognized by the laws of this country has been committed that the suspect is presented to court to answer to the charge or charges preferred against him. Where along the way the prosecutor determines, in a trial before the subordinate court, that there is need to relook at the matter, the prosecutor is at the liberty to seek the withdrawal of the case under section 87(a) of the Criminal Procedure Code. This is done by making an application to the court in the presence of the defence. There is no provision under the Criminal Procedure Code, which is the main procedural law governing criminal trials, through which a prosecutor can write to the magistrate asking to review the evidence. The prosecutor can indeed seek an adjournment to review his case before making a decision on the way forward and whether the application will be allowed or not is at the discretion of the magistrate.

24. As already stated, the trial record shows that on November 12, 2020, the prosecutor applied for adjournment on the ground that the file had been sent to the Director of Public Prosecutions for advice. Although the defence counsel strongly opposed the application for adjournment, the trial magistrate allowed the prosecutor’s request and put off the matter to January 18, 2021.

25. On January 18, 2021 the matter did not proceed because of the absence of the defence counsel. The matter was adjourned to February 2, 2021 when it was again adjourned because of non-attendance by the defence counsel. On that day the appellant indicated that the investigating officer was in court. The respondent was given a last adjournment and informed that the next time the matter would proceed even if her counsel was not in attendance.

26. When the matter next came up for hearing on February 25, 2021, the respondent indicated that her counsel was absent. The appellant reminded the court that the respondent had been given a last adjournment and the court directed that the matter proceeds to hearing. PW3 Police Constable Samson Epanoi proceeded to testify on that date after which the appellant closed its case. Besides November 12, 2020 when the appellant sought an adjournment so as to consult the DPP, the appellant made no other application on the issue of advice from the DPP. The appellant’s claim that it was not given an opportunity to consult the DPP is therefore unfounded. The protest by the complainant that her case was not properly investigated was a matter between her, the police and the office of the DPP. Whatever was decided on that complaint was to be communicated to the court by way of an appropriate application. In the absence of any application by the appellant, the trial magistrate could not do anything else apart from proceed with the case to conclusion. This particular ground of appeal is therefore found to be without merit and dismissed.

27. The third ground of appeal is that the trial court erred by excluding the complainant from the courtroom thereby denying her an opportunity of following proceedings in respect of her case. A complainant in a criminal case is a key party to the proceedings and is entitled to attend the court proceedings. Indeed, the Constitution at article 50(9) required parliament to enact legislation providing for the protection, rights and welfare of victims of offences. Parliament enacted the Victim Protection Act, 2014 which provides at section 9 the rights of a victim during the trial process. As per sub-section (1)(a), one of those rights is to “be present at their trial either in person or through a representative of their choice.” It would therefore be highly prejudicial to the rights of a victim of crime to deny them an opportunity to attend court proceedings even during times of crisis as was the case when the Covid-19 pandemic was at its height. In a situation where a limited number of people are to be admitted to proceedings, those admitted must include the victim of crime, and their representatives where necessary. In any case, in the majority of criminal trials the victim of crime is the complainant. In cases like murder, the relatives of the deceased are victims of the crime and they are entitled to attend the court proceedings.

28. The question therefore is whether the complainant was indeed denied entry to the courtroom. A perusal of the court record shows that the prosecution called three witnesses. The complainant gave her evidence-in-chief on February 4, 2020 as PW1 after which she was cross-examined by the defence counsel and re-examined by the prosecutor. After the complainant completed her testimony, the matter was adjourned to March 19, 2020. Nowhere in the record is it indicated that the complainant was asked to step out because few people were required in the courtroom because of the Covid-19 pandemic. The fact that the complainant was not denied access to the courtroom is confirmed by the proceedings of August 31, 2020 when the appellant applied for adjournment on the ground that he didn’t have any witness in court. The reason for the absence of the witnesses was stated as follows:“The complainant is in court. She says that the witnesses are children whose parents have refused them to attend court…”

29. The proceedings of August 31, 2020 clearly confirm that the complainant had access to the courtroom throughout the trial. Had the complainant been denied access to the courtroom she would have informed the appellant who would have applied for her admission. Such a weighty issue would have been captured in the court record. The appellant’s claim that the complainant was locked out of the proceedings is therefore without merit.

30. The fourth ground of appeal is that the trial magistrate erred in law and fact by failing to observe the legal authorities relied upon by the appellant without giving any reason. It is confirmed from the record that the appellant filed submissions dated May 27, 2021 in which the cases ofESL v Republic [2015] eKLR and Bernard Amenya Mogoti v Republic [2016] eKLR were cited. In the said cases, the appellants’ attempts to overturn their convictions for the offence of creating disturbance in a manner likely to cause a breach of peace contrary to section 95(1)(b) of the Penal Code were rejected by the High Court.

31. The judgement of the trial magistrate in the appeal before this court clearly shows that the facts of the case were carefully considered before the decision to acquit the respondent was arrived at. I must state that not every case cited in submissions has to be referred to in the judgement or ruling. In fact, in the written submissions the appellant simply stated that “attached is the list of authorities to assist the honourable court arrive at a just and fair decision of this case.” The trial magistrate was not referred to any particular set of facts or principle of law in the stated authorities. The appellant simply threw the authorities at the trial court. The magistrate may have looked at the decisions and found nothing in them that was relevant to the case before her. She was not expected to forage for facts and legal principles that had not been pointed to her. The appellant was under a duty to clearly identify the points that it wanted the trial court to glean from the cited cases. This ground of appeal is therefore unmerited.

32. Through the fifth ground of appeal, the appellant faults the trial magistrate for failing to allow it the opportunity to call all the witnesses. According to the appellant, this denial violated the provisions of the Criminal Procedure Act and the Constitution. A trend I have noticed is that the appellant simple states that the provisions of the Criminal Procedure Code and the Constitution were contravened without specifying those provisions. Be that as it may, the record will show that the prosecutor was given all the adjournments applied for and on February 25, 2021 after PW3 had concluded his testimony, the appellant stated on record that:“I close the prosecution’s case.”

33. What else was the magistrate expected to do. It is the duty of the prosecution to call its witnesses during the trial and blame cannot be shifted to the court where the prosecutor fails to call all the necessary witnesses. As the law stands, it is only the prosecutor and the defence who know the number of witnesses lined up by the prosecution. The trial court has no access to the statements of the witnesses of the prosecution or the defence and cannot tell whether either side has exhausted their witnesses or not. From the record, the trial magistrate is blameless as she gave the appellant as many adjournments as were applied for. The appellant voluntarily closed its case and cannot be heard on appeal to say that it was not given an opportunity to call all the witnesses. I therefore find this ground of appeal to be without merit.

34. I have already dealt with the ground that the trial magistrate erred in law and fact by failing to observe that the appellant’s evidence was well corroborated to warrant a conviction. I only need to add that the standard of proof required in a criminal case is proof beyond reasonable doubt. That standard was explained by Lord Denning inMiller v Minister of Pensions [1947] 2 All ER 372 as follows:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful probabilities or possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility, in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, then the case is proved beyond reasonable doubt.”

35. In the case at hand, the trial magistrate was confronted with two versions as to the events of the material day. She found that the evidence of the appellant’s witnesses was contradictory and did not support the particulars of the charge. A cursory glance at the evidence that was adduced at the trial shows that the magistrate made no mistake in her decision. None of the witnesses told the court that the respondent chased the complainant while armed with a panga. The particulars of the charge which stated that the respondent chased the complainant while armed with a panga was therefore not proved.

36. The complainant who testified as PW1 and her witness, PW2 Collins Kipkemoi Keitany, also gave contradictory testimony as to the locus of crime. Their evidence as to whether the complainant’s land shared a common boundary with that of the respondent was conflicting. PW2 gave the impression that the lands had a common boundary while the complainant talked of another parcel of land separating their pieces of land.

37. It is also noted that although the magistrate did not mention the respondent’s evidence, her finding that the appellant’s case was unbelievable was firmed up by the more plausible defence which demonstrated that it was the complainant who threatened the respondent. The respondent and her witnesses DW2 Mercy Rotich and DW3 Gladys Chelimo stated that the farms of the complainant and the respondent were separated by a road and at no time did the respondent leave her farm. There was some level of consistency in the respondent’s case. The trial magistrate cannot therefore be faulted for acquitting the respondent.

38. The summary of it all is that there is no merit in this appeal. I am therefore in agreement with the trial magistrate that the burden of proof was not discharged so as to secure a finding of guilt. The respondent was therefore properly acquitted. This means that the appeal has no merit. The appeal is therefore dismissed.

DATED, SIGNED AND DELIVERED AT KABARNET THIS 21STDAY OF JULY, 2022. W. Korir,Judge of the High Court