[2022] KEHC 13012 (KLR)

Republic v Okape & 2 others (Criminal Appeal E010 of 2022) [2022] KEHC 13012 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13012 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E010 of 2022

LN Mutende, J

September 20, 2022

Between

Republic

Appellant

and

Ernest Wamalwa Okape

1st Respondent

Bernard Nganga Okape

2nd Respondent

Nyongesa Sinino

3rd Respondent

(Appeal against the original conviction and sentence in Criminal Case No. 1368 of 2017 at the Chief Magistrate’s Court Bungoma by Hon. C. A. Mutai – SPM on 6th March, 2020)

Judgment

1. Ernest Wamalwa Okape (1st respondent), Bernard Nganga Okape (2nd respondent) and Joseph Nyongesa Sinino (3rd respondent) were charged with the offence of causing grievous harm contrary to section 234 of thePenal Code.

2. Particulars of the offence were that on the August 9, 2017 at Kasosi village in Sirare location within the Bungoma county, jointly with another not before court, unlawfully did grievous harm to Francis Wafula Khisa.

3. Facts giving rise to the prosecution’s case were that on the August 9, 2017, the complainant had gone to weed his sugar cane plantation that was on land parcel No 471, a portion that he had allegedly leased and also purchased from Deparious Wanyama Okape. The respondents, his distant relatives went to the land, chased him away and assaulted him. He sustained injuries as a result. He reported the matter to the police and sought medical attention. He was treated and subsequently, the P3 Form issued was filled. Investigations carried out culminated into the arrest of the respondents who were charged with the offence.

4. Upon being placed on their defence, the respondents admitted having encountered the complainant but denied having assaulted him. The 1st and 2nd respondents stated that they wanted to sell their brother, Deparious Wanyama Okape’s land to Bernard Wanjala Wangilla. According to the 1st respondent, the complainant found them working on the land and he tried to stop them. Then he vowed to frame them up.

5. The 2nd respondent stated that the complainant went to where they were but they did not assault him.

6. The 3rd respondent stated that the 1st and 2nd respondents borrowed from him Ksh 20,000/- that they intended to refund after disposing a piece of land, therefore, on the material date, they called him and he went to the portion that they intended to sell. While there, the complainant went and declared that the 1st and 2nd respondents would not sell the land and he vowed to fix them. He denied the allegation that the complainant was assaulted.

7. The trial court considered evidence tendered and found that evidence by the complainant as to the assault was confirmed by evidence of PW2. And, evidence of injuries sustained was confirmed by evidence adduced by PW3. However, the court queried how the P3 form was filled on August 24, 2017 after the report was made on the August 9, 2017. These, according to the court were inconsistences which were not explained as the investigating officer was not called to testify. In the result the respondents were acquitted.

8. Aggrieved by the decision of the court, the appellant proffered an appeal on grounds:1. That the learned trial magistrate erred in fact and in law by failing to grant the prosecution an opportunity to avail the investigating officer to testify in the case knowing that he was on annual leave, having been properly informed.2. That the learned trial magistrate erred in law and fact by failing to believe the prosecution evidence which placed all the three accused persons at the scene of the crime.3. That the learned trial magistrate misdirected himself in law and fact by failing to properly evaluate the prosecution evidence, the injuries sustained by the victim and falling for the defence of the accused persons that the charges were framed yet the victim had visible injuries sustained from the unlawful acts of the accused persons.4. That the learned trial magistrate erred in law by concluding that failure by the investigating officer to give evidence was fatal to the complainant’s case contrary to the provisions of section 143 of the Evidence Act.

9. In that regard the appellant urged this court to allow the appeal, set aside the acquittal and substitute the order with conviction and to sentence the respondents in accordance with the provision of section 234 of the Penal Code.

10. The appeal was canvassed through written submissions. The appellant through Mr Ayekha Shakwita, prosecution counsel, urged that the prosecution established that the complainant was assaulted by the three respondents and, as a result he suffered grievous harm. That, as held in the caseGerald Wathui KiraguvRepublic(2016) eKLR, the complainant identified the assailants, persons who were known to him. That the respondents merely denied assaulting the complainant. That evidence tendered by the clinician showed that he relied on the patient’s treatment notes which were produced in evidence which showed when the complainant was first attended to at the facility, the August 10, 2017. Therefore, the assumption of the court was erroneous.

11. Further, he submitted that the complainant could not be blamed for failure by the investigating officer to testify. That the reason given by the court to deny the prosecution an adjournment was not supported by the record.

12. The respondents through the firm of A W Kituyi and Company Advocates, argued that evidence of prosecution witnesses having been recorded by the investigating officer who should have testified to corroborate their evidence was wanting. That there was no proof if the investigating officer is the one who issued the P3 form that was filled. That the case was based on malice aforethought owing to the land dispute. They relied on the case ofBrown v Republic Machakos HC criminal appeal No 96 of 2019 where the court allowed the appeal following contradictions in evidence.

13. This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of neither seeing nor hearing witnesses who testified. This duty of the court on a first appeal was stated by the court in the case ofOkeno v Republic [1972] EA 32 as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ( Pandya v R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M Ruwala v R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - see Peters v Sunday Post [1958] EA 424. ”

14. Section 234 of the Penal Code provides that:any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

15. Therefore, the ingredients of grievous harm are:i.Whether the victim sustained grievous harm.ii.Whether the harm occasioned was caused unlawfully.iii.Positive identification the assailant.

16. Section 4 of the Penal Code defines grievous harm as:Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;

17. The complainant was seen at Bungoma district hospital on August 10, 2017 and issued with an outpatient card. The patient No was 286726. Subsequently on the September 4, 2017. A P3 form (medical examination report) was issued in his name. According to the document, a report was made to OCS Nalondo police station on the August 9, 2017 and an entry made in the occurrence book which was indicated as No 5. The P3 form was filled by PW3 Elias Adoka, a clinician. He referred to treatment notes while filling the P3 form. The complainant had sustained a broken incisor left tooth and there was active bleeding as a result of the1 broken tooth. According to the witness, the complainant also had a painful left shoulder, left knee joint and backache. Evidence adduced by the complainant of injuries sustained was corroborated by medical evidence as appreciated by the trial court.

18. The clinical practitioner opined that the injury sustained was grievous harm. He was not put to task to explain what prompted him to come up with that conclusion, but, looking at the nature of the definition of grievous harm, a broken tooth would definitely be a serious injury.

19. An argument was raised by the trial court that there was no evidence of the investigating officer to confirm if indeed the injury had been sustained. In the case of Juma Ngodia v Republic (1982-88) KAR 45 the Court of Appeal stated that:“The prosecutor has in general, discretion whether to call or not to call someone as a witness. If he does not call a vital reliable witness without a satisfactory explanation, he runs the risk of the court presuming that his evidence which could be and is not produced would, if produced have been unfavorable to the prosecution.”

20. The question to be posed is whether the Investigating officer was a vital witness and whether the explanation, if any, rendered why he was not available was plausible. With this in mind, it is also important to consider what was stated by the Court of Appeal in the case of Jeremiah GathukuvRepublic, Criminal Appeal No 73 of 2008that:“………the effect of failure to call police officers in a criminal trial, including the investigating officer, is not fatal to the prosecution’s case unless the circumstances of each particular case so demonstrate.”

21. Circumstances of this case were that the court was informed that the investigating officer who was also the arresting officer was on leave hence his non- availability, but, it found the reason not good enough hence ordered the prosecution to close its case. Circumstances that prevailed did not demonstrate any intention to conceal some evidence that was not sufficient to prove the case.

22. The act was alleged to have been committed in broad daylight. The defence admitted that there was an encounter between the complainant with them (respondents).

23. PW2 was related to both the complainant and respondents. He testified that his attention was attracted by an anxious awareness of danger. As a result, he went to the sugar cane plantation and found the respondents assaulting the complainant using sticks and a hoe. When he attempted to raise an alarm, the 1st respondent attacked him causing him actual bodily harm. Having sustained an injury, he reported the matter to the police and sought treatment. This evidence was not refuted by the respondents. The complainant’s evidence was therefore corroborated by that of PW2. This was proof beyond reasonable doubt that the respondents assaulted the complainant. Therefore, failure by the investigating officer to testify was not fatal to the prosecution’s case.

24. The question to be answered is therefore, whether the injury sustained by the complainant was caused unlawfully?.

25. The term unlawful may be defined as something that is contrary to the law. The act in issue must be an intentional wrongful act committed against the person of another which cannot be justified legally.

26. The land in contention was stated to belong to Diparcous Wanyama Okape. The complainant alleged that he leased the portion of land from the stated Wanyama and had also purchased a portion of it from the individual. I say ‘alleged’ because no evidence was availed to prove the allegation. However, PW2 upon being cross examined stated that his father had sold ¼ an acre of their land to the complainant, and, the respondents, his uncles by virtue of the clan had also disposed their land.

27. According to the complainant, he saw the respondents on his portion of land on which he had planted sugarcane, that is when he went to enquire why and what they were doing there hence the incident. In their defence, the 1st respondent stated that they were on the land that belonged to Wanyama when the complainant his nephew found them working and tried to stop them. The 2nd respondent stated that they were on his brother, Wanyama’s land which they intended to sell to Bernard Wanjala Wangila when the complainant, his cousin’s son, went to where they were. The 3rd respondent testified that he went to the portion that was to be sold so that the 1st and 2nd respondent could settle what they owed him, Ksh 20,000/-.

28. PW4 Joy Majuna Wanyama stated that the land that was to be sold was for her late father. They were to repay the sum owed to the 3rd respondent, but the complainant who claimed ownership of that particular portion objected to the sale. What was apparent was the fact of parties having disagreed over the portion of land that the 1st and 2nd respondent were to dispose of which did not belong to them. The action they took of assaulting the complainant was in violation of a legal statute which criminalizes the act of attacking a person physically. It was wrongful and unlawful.

29. The upshot of the above is that the trial court fell into error in acquitting the respondents. Therefore, I quash the order of the trial court which I substitute with an order convicting each and every respondent for the offence of causing grievous harm to the complainant contrary to section 234 of the Penal Code.Consequently, I direct each respondent to sign a personal bond of Ksh 5000/- to appear before the trial court for purposes of mitigation and sentencing on September 29, 2022.

30. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 20TH DAY OF SEPTEMBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Ms. Mukangu for AppellantMr. Kituyi for the RespondentsCourt Assistant – Rueben Musanga