[2023] KEHC 24168 (KLR)

Republic v Mwamba (Criminal Appeal E058 of 2021) [2023] KEHC 24168 (KLR) (9 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24168 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E058 of 2021

GMA Dulu, J

October 9, 2023

Between

Republic

Appellant

and

Festus Munyao Mwamba

Respondent

(From the decision in Criminal Case No. 81 of 2020 delivered on 13th May 2021 at Makueni Law Courts by Hon. J. N. Mwaniki(CM)

Judgment

1. This is an appeal by the State.

2. The respondent was charged in the Magistrate’s court with several counts. Under Count I, he was charged with grievous harm contrary to Section 234 of the Penal Code particulars of which being that on 28th July 2020 at around 1200hours, at Mwea village Makongo Sub-Location Makueni County while armed with a jembe unlawfully did grievous harm to No. 85195 Sgt Salim Kautu while in due execution of his duties.

3. He was also charged with Count II, of resisting arrest from police officers in due execution of their duty contrary to Section 103(a) of the National Police Service Act No. 11(A) of 2011. The particulars of offence were that on the same date and at the same place armed with a jembe wilfully and unlawfully resisted arrest from No. 85195 Sgt Kautu, No. 208803 Corporal Mwanza, No. 244164 PC Felista Syombua, No. 92203 PC Shem Maraga, and No. 255466 PC Joash Kipyego.

4. Under Count III, the respondent was charged with possession of cannabis sativa contrary to section 3(1) as read with section 3(2) of the Narcotic Drugs & Psychotropic Substances (Control) Act 1994, the particulars of which being that on the same date and at the same place was unlawfully found with a blue carrier bag containing cannabis sativa which was not medically prepared with a street value of Kshs. 10,000/= in contravention of the said Act.

5. He was charged with count IV of escape from lawful custody contrary to section 123 as read with section 36 of the Penal Code, the particulars of which being that on 28th July 2020 while being in lawful custody of Cpl. Bernard Bett and PC Felista Syombua escaped from Mukuyuni Police Station anti-crime office while being taken finger prints and interrogation from the said lawful custody.

6. He was further charged with count V of selling alcoholic drinks without a valid liquor licence contrary to Section 37(1) as read with Section 62 of the Alcoholic Drinks Act particulars of which being that on 28th July 2020 he was found selling (assorted) alcoholic drinks listed in the charge sheet, in contravention of the said Act.

7. He was lastly charged with count VI of contravening the provisions of prevention, control or suppression of Covid 19 directives under section 16 (M) as read with 164 of the Public Health Act .

8. He denied all the charges. After a full trial, he was acquitted of all the charges preferred against him.

9. Dissatisfied with the decision of the trial court in acquitting the respondent, the State through the Director of Public Prosecutions has come to this court on appeal on the following five (5) grounds:-1. The trial Magistrate erred in law in failing to find that the prosecution had discharged its burden of proof as required by law.2. The trial Magistrate erred in law in placing more weight on the defence case and totally failed to evaluate and place any weight on the prosecution overwhelming evidence.3. The trial Magistrate erred in law in failing to understand that the prosecution ought to prove its case beyond reasonable doubt and not beyond any shadow of doubt.4. The trial Magistrate erred in law in failing to find that the defence of provocation and self defence as put forth by the accused were only mitigative in nature.5. The trial Magistrate erred in law by failing to find that all the offences were committed in the same cause of transaction.

10. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the Director of Public Prosecutions (appellant), as well as the submissions filed by the counsel for the respondent O. N. Makau & Mulei Associates. Both sides relied on decided court cases.

11. This is a first appeal, and I am aware of my duty to evaluate all the evidence on record afresh, and come to my own independent conclusions and inferences – see Okeno v Republic (1972) EA 32.

12. In determining this appeal, I have to bear in mind that this being a criminal case, the burden was on the prosecution to prove all the elements of each of the offences charged beyond any reasonable doubt. The legal requirement for the prosecution to prove this case is codified under Section 107 and 108 of the Evidence Act (Cap.80). The standard of proof in criminal cases has been restated repeatedly including in the case of Sawe v Republic (2003) eKLR, and the celebrated decision in the English case of Woolmington v DPP (1935) AC 462, in which it was stated as follows:-“If at the end of and on the whole case, there is a reasonable doubt, created by the evidence either by the prosecution or the prisoner, as to whether the prosecution has not made out the case, the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and any attempt to whittle it down cannot be entertained.”

13. In proving this case, the prosecution called eight (8) witnesses. On his part, the respondent tendered sworn defence testimony and called two defence witnesses.

14. I note that the trial Magistrate gave reasons for finding that the prosecution did not prove any of the charges. With regard to count five (5) relating to selling alcoholic drinks without a valid liquor licence, the trial court stated that there was no evidence on record that the respondent sold alcoholic drinks at the time alleged in the charge sheet.

15. Indeed, the respondent DW1 stated that he and his wife DW3 Maureen Muamba operated a shop and beer selling shop. The evidence of the police officers PW1 Sgt. Paul Kiiru PW2 Sgt. Salim Kautu and PW4 Cpl. Felistas Syombua was to the effect that on arrival at the respondent’s shop, they saw 3 people leaving the premises. They did not see anybody taking alcohol. They did not find, any glass with beer nor any opened bottle which contained beer. They picked empty bottles and full bottles of beer.

16. I agree with the trial Magistrate that the prosecution did not prove count five (5) beyond any reasonable doubt.

17. With regard to count six (6) for contravening prevention of Covid 19 Rules made under the Public Health Act, the particulars of the charge are based on the sale of beer. There is no allegation of failure to wear face masks; or failure to keep social distance. This charge was also not proved as not tangible evidence on the allegation of sell of beer was tendered by the prosecution, and even if there was such evidence of sale of beer, in my view, the sale of beer by itself alone would not contravene the Covid 19 regulations.

18. With regard to the charge of escape from lawful custody, count four (4), at about 1835hours on 28th July 2020, I note that through the respondent was said by the prosecution to have been restrained and arrested by the members of the public who also assaulted him, no member of the public was called to testify for the prosecution and no reason was given by the prosecution for that failure to call at least one of these crucial witnesses to support this charge.

19. I thus agree with the learned trial Magistrate that the prosecution did not discharge its burden of proving count four (4) beyond any reasonable doubt.

20. With regard to count III for possession of cannabis sativa, in my view also the prosecution did not prove this charge beyond reasonable doubt. This is because, the evidence on how the substance was handled and transmitted to the Government Analyst (Nelius Maingi) does not give a clear picture on whether there was an unbroken chain of handling the samples.

21. Secondly, even assuming that the substance was indeed cannabis sativa, the evidence of PW1 who claimed to have recovered the substance does not in my view satisfy the requirement of possession of the substance by the respondent. It is possible that the substance was not in the possession or control of the respondent.

22. I thus agree with the learned Magistrate that the prosecution did not prove possession of cannabis sativa by the respondent beyond any reasonable doubt.

23. With regard to count I and count II for grievous harm and resisting arrest, in my view the evidence of PW1, PW2, PW3, PW4 is all consistent and clear on what happened during their police operation in broad daylight on 28th July 2020. PW1 was a photographer who took photographs of PW2 who had been injured in the head. The other prosecution witnesses were involved in the police operation.

24. The respondent, on his part, admitted the police visit to his shop that day but insisted that though the police went there, they just assaulted him viciously for no reason.

25. In my view, from the totality of the evidence on record, the respondent did assault Sgt. Salim Kautu that day with a jembe and attempted to resist arrest. Thus both count I and II of the charge were proved. I will thus set aside the acquittal on these two charges, and substitute therefore a conviction.

26. Consequently, I uphold the acquittals on counts III, IV, V and VI. I however set aside the acquittals for count I and II and thus convict the respondent for grievous harm contrary to Section 234 of the Penal Code, and resisting arrest contrary to Section 103(a) of the National Police Service Act No. 11(A) of 2011.

27. With regard to sentence for the two offences on which the respondent is hereby convicted on appeal, in my view, the undisputed injuries that he suffered in the way the police conducted his arrest, taught him a lesson to avoid being violent. In the circumstances of this case therefore, I discharge the respondent under section 35(1) of the Penal Code (Cap.63). Right of appeal is explained.

DATED, SIGNED AND DELIVERED THIS 9TH DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantNo appearance for DPP – appellantMs. Mboya for respondent