[2022] KEHC 13997 (KLR)

Republic v Wepukhulu & 3 others (Criminal Appeal E011 of 2021) [2022] KEHC 13997 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13997 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E011 of 2021

SN Riechi, J

October 6, 2022

Between

Republic

Appellant

and

David Wafula Wepukhulu

1st Respondent

Stephen Juma Wanambisi

2nd Respondent

Francis Muindi Wepukhulu

3rd Respondent

Albert Ngutuku

4th Respondent

(An appeal arising from the Judgement and order of Hon G. Mogute (PM) in original Bungoma CMC’s Criminal Case No. 983 of 2019 delivered on 16{{^th}} January, 2019)

Judgment

_ 1. The respondents were charged all charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars being that on the May 17, 2019 at Mabanga area within Bungoma South Sub-County jointly and unlawfully assaulted Mark Wekesa Wafula thereby causing actual bodily harm.

2. The respondents pleaded not guilty to the charges. The witnesses in support of the appellant’s case testified as follows;Mark Wekesa Wafula, (PW-1) testified that on May 17, 2019 between 10 am, and 11 am, while going to check on his herdsman, he was attacked by the respondents with slashers and pangas wherein he was cut on the left hand and the head. He lost consciousness and was rushed to Bungoma County Referral Hospital and admitted for 2 days.PW-2 Carren Wafula Nakhungu stated that she was gathering firewood near PW-1’s herdsman when the respondents armed with panga, slasher and sticks emerged from a maize plantation and attacked PW-1 who fell down and lost consciousness. Keith and Albert arrived and helped carry PW-1 to the nearby road from where a good samaritan carried him to hospital.PW-3, Albert John Lubakeya stated that while on his way from Nzoia sugar factory, he heard a woman wail. Upon checking he found PW-1 lying on the ground, he also saw the respondents escape from the scene towards the maize plantation. He stated that he knew the assailants. A motor cycle took PW-1 to the hospital.PW-4, Samuel Shikuku Ngichabe stated that while at his farm, he heard someone cry and when he checked he found PW-1 had been cut on the head and the left hand. He took to Bungoma for treatment on his motorcycle. He is the one who reported to the police station.PW-5 Keith Wanjala testified that he lighted at makolato village and heading towards PW-1’s home and saw the accused in the company of a fifth person he did not recognize armed with weapons. Soon thereafter, he heard screams and rushed to the scene where he saw the 5 assailants running away. He found PW-1 had been cut on the head whereupon he with PW-2 carried him to the road.PW-6 PC Whenslay Misamali stated that he received instructions from CI Kiptoo to record witness statements and forwarded the file to the DPP for recommendations. The DPP recommended charges to be levelled against the respondents wherein he arrested and charged them.PW-7, Elias Adoka, clinician from Bungoma County Referral Hospital produced the P3 form he had filled on May 22, 2019. The patient had a cut injury on the head and bruises on the left hand. He classified the injury as harm.

3. The respondents were found to have a case to answer and put on their defence. All the respondents gave sworn evidence. They called additional witnesses.DW-1 (1st accused) stated that on the material day, he had travelled to Kakamega to meet his advocate over a matter and left the advocate’s office at 10. 30 am. He stated that the charges were a frame-up over a land case where the complainant’s father had sued him.DW-2, (2nd accused) testified that on the material day, he was at his place of work in Nzoia Sugar company where he had worked from 7 am to 6. 50 pm. He produced a copy of attendance for the day.DW-3 (3rd accused) testified that on the material day, he left his house at 9 am to herd his cattle near the river at home. At about 9. 30 am the complainant’s herdsman (Brian) and another herder peter came and they stayed together. Later the complainant came and attacked the 2nd complainant’s garden boy (Moses) where they fought and the said Moses cut the complainant. He rescued and separated the two.DW-4 (4th accused) stated that he had attended a burial in Kitale on that day and produced photographs taken at the funeral.DW-5, Gabrial Wafula Khaemba stated that he worked at Nzoia Sugar factory and the 2nd accused boss at the time. That on the material day, the 2nd accused reported to duty at 7. 00 am and left at 6. 30 pm.DW-6 Francis Wamoche Mukoyani stated that he was on duty at Nzoia Sugar Factory and met the 2nd accused at 8. am and worked with him till 1. 30 pm when he left at the end of his shift.DW-7 Patrick Khisa a time keeper at Nzoia Sugar Factory stated that on the material day, the 2nd accused clocked in the register at 7 am and left at 6 pm.DW-8 Peter Wamalwa stated that he was herding DW-5’s cattle together with the 3rd accused when the complainant came and attacked the 2nd accused’s garden boy before they fought. That he, the 3rd accused and another person helped in separating the 2. DW-9, Moses Wayae stated that he was removing sand from the river when he heard shouts from nearby. He rushed there and found peter holding one Moses and the 3rd accused holding the complainant. He helped them separate the 2 and noted that the complainant was drunk because he was staggering.DW-10 Nangila Wanjala, the 4th accused stated that she attended a burial with her husband on the material day. That she returned home at about 8. 30 pm.

4. After carefully analyzing the evidence, the trial court in its judgement delivered on January 16, 2019 acquitted all the accused under section 215 of theCriminal Procedure Code. The appellant was aggrieved thus the instant appeal which is anchored on the following grounds;1. The learned trial magistrate erred in fact and in law in failing to consider the complainant’s evidence in chief as consistent and cogent.2. The learned trial magistrate erred in law in failing to allow the prosecution to cross-examine the defence of alibi.3. The learned trial magistrate erred in law in admitting the alibi defence of all the accused persons as they did not meet the threshold of the law.4. The learned trial magistrate erred in law and fact by acquitting the accused persons on a weak alibi defence.

5. By directions of the court, the appeal was disposed of by way of written submissions with both parties having complied with the order, the same have been considered.

6. This being a first appeal, In Kiilu & Another vs Republic [2005]1 KLR 174, the duty of the first appellate court was stated thus;An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.

7. 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 court’s findings and 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.

8. Having perused the submissions and the entire record, the court forms the opinion that the issue for determination is whether the prosecution(appellant) proved its case to the required standards. It is common ground that the complainant was assaulted and sustained injuries which led to his being admitted in hospital for a day. This can be ascertained from the P3 Form (Pexh 2) together with PW-7’s evidence.

9. The point of divergence in the matter is when the respondents raised the defence of alibi. The prosecution in the 2nd ground of appeal faults the trial magistrate for not according the prosecution time to cross-examine the defence on the alibi raised.

10. On this issue, the record of proceedings in the trial court shows that DW-1 stated that he was in Kakamega attending to his advocate’s chambers and produced a receipt issued by the advocate on that day. The prosecutor cross-examined him, DW-3, DW-7, DW-8 and DW-9

11. As regards DW-2 was not cross-examined. The record reads; no questions to accused No 2 same applies to DW-4, DW-55, DW-6 AND DW-10. The court notes that all these witnesses gave evidence in chief. The prosecutor did not have questions for these witnesses and the court could not force the prosecutor to cross-examine. The prosecutor was at liberty to ask relevant questions and where she deemed cross-examination was not necessary, the court on appeal cannot fault the trial court because the time was allocated only that the prosecutor had no question.

12. Ultimately, I find no merit in this argument and is hereby rejected.

13. On whether the court considered the defence of alibi visa vis the prosecution’s evidence, considering that the defence goes into the identity of the perpetrator/accused. The factors to be taken into account when considering the defence were stated in the case ofErick Otieno Meda v Republic [2019] eKLR where the court of appeal set down the following parameters to be considered when the defence is raised thus;a.An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.b.An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.c.The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.d.The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail.

14. As regards the burden of proof when the defence is raised, the Court of Appeal in Mwamusi & another v Republic [2003] eKLR held that;

15. An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to the charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.

16. In their evidence at the trial court, PW-1 stated that on the material day while checking on his herds boy, he was attacked by the respondents together with an employee of Wafula wanambisi at about 10. 00 am and was left unconscious. PW-2 stated that she saw all the respondents emerge from maize planation and armed with sticks and slasher. PW-3 on his part stated he was on his way from when he heard a cry. He rushed to the scene and saw the respondents escaping into a maize plantation. On his part, PW-4 stated that while at his farm, he heard somebody raise alarm. He rushed to the scene and found the complainant had been injured. He did not see the respondents.

17. The court has weighed the prosecution’s evidence against the respondents’ and it is clear that the prosecution’s witnesses lack the credibility required in a criminal trial. The defence case discredited the prosecution’s case.

18. The end result is that the appeal herein is lacking in merit and is hereby dismissed. The trial court’s acquittal of the respondents is affirmed.

DATED AT BUNGOMA THIS 6TH DAY OF OCTOBER, 2022. SN RIECHIJUDGE