[2017] KEHC 9819 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 156 of 2015

ROBERT NJOKA……………….........……………………….……..APPELLANT

VERSUS

REPUBLIC …….………………………………………………….RESPONDENT

(An appeal from the original conviction and sentence in the Chief Magistrate’s court at Makadara Cr. Case No. 1187 of 2013 delivered by Hon. T. Okello, SPM delivered on 28th April, 2015).

JUDGMENT

Background

Robert Njoka, the Appellant herein, was charged in count I with the offence of obtaining money by false pretenses contrary to Section 313 of the Penal Code. The particulars of the offence were that on 11th December, 2012 at Mas Trading Company Limited in Industrial area within Nairobi County, with intent to defraud obtained from Mas Trading Company limited 134 pieces of hides and skins valued at Kshs. 88,335/- by falsely pretending that he was in a position to pay.

In count II he was charged with the offence of assault contrary to Section 251 of the Penal Code. The particulars of the offence were that 11th March, 2013 at Zingo Investment in Industrial Area within Nairobi County, unlawfully assaulted Siyad Mohammed Abukar thereby occasioning him actual bodily harm.

The Appellant was arraigned in court and at the conclusion of his trial found guilty in count II. He was sentenced to pay a fine of Kshs. 100,000/- in default serve 1 year imprisonment. He was dissatisfied with both the conviction and sentence against which he has preferred the instant appeal. He set out his grounds of appeal in a Petition of Appeal filed on 25th September, 2015. The summary of the grounds of appeal is that there was no sufficient evidence to warrant a conviction, that the prosecution evidence was riddled with contradictions and discrepancies, that the Appellant’s defence was not considered and that the sentence was harsh and excessive in the circumstances.

Submissions

The appeal was canvassed before me by way of oral submissions. Leaned counsel, Mr. Muriithi represented the Appellant whereas leaned counsel Ms. Aluda represented the Respondent. Mr. Muriithi submitted that the evidence adduced did not support the charge. He referred to the evidence of PW1who testified that the offence took place on 12th March, 2013 whereas the charge indicated that the offence was committed on 11th March, 2013. Further that the report to the police was made on 12th March, 2013 and the P3 form filled on the same date which evidence again contradicted the statement of the charge.

Counsel further faulted the medical evidence adduced in court. He cited the P3 form the defence was furnished with before the commencement of the trial which was signed on 12th March, 2013 with an indication that the injuries were two days old. That placed the date of the assault to 10th March, 2013. Conversely, on 21st March, 2013 when PW2, Dr. Maundu sought to produce the P3 form, the defence raised an objection because the same was not one and the same copy furnished to them. The difference in the P3 form in possession of PW2 was that it showed the age of the injuries as one day old with an additional date of 5th April, 2013 which then placed the date of assault as 4th April, 2013. He submitted that PW2 stated that the P3 form was taken to him for amendment by the investigating officer to effect the amendment. On the other hand, PW1 was categorical that he did not visit a doctor a second time, a fact that Dr. Maundu confirmed. According to the counsel, this raised an eyebrow on how and why the P3 form was amended in the absence of the patient. Furthermore, it had been amended when the trial was ongoing, another procedural lapse. Counsel submitted that the discrepancy in the dates in the P3 form put into question the propriety of the medical evidence adduced. He submitted that the same could not be relied on. He urged the court to uphold the appeal, quash the conviction and set aside the sentence.

Miss Aluda conceded to the appeal whilst submitting that indeed the prosecution case was riddled by contradictions which made it irredeemable. It was her view that the conviction was not safe and urged the court to allow the appeal.

Evidence

The prosecution called a total of four witnesses. The summary of the prosecution case is that both the Appellant and the complainant (PW1) were dealing in the business of hides and skins. PW1 collected some hides and skins from PW1 worth Kshs. 88,335/= on credit on 11th December, 2012. On 12th March, 2013 PW1 went to the Appellant’s office to enquire about the payment. The Appellant did not give him the money and instead sent a cheque to PW1’s office. As the cheque was from a school, he reported the matter to the police. While PW1 was in the Appellant’s office, the Appellant closed the office door and started pushing and punching him. He sustained an injury on the shoulder. He was thereafter treated and issued with a P3 form which was filled by PW2, Dr. Joseph Maundu of Police Surgery. Amongst the persons that PW1 called while he was in the office of the Appellant to register his fears was PW3, Mohamed Abdul Raman Omar. He confirmed that PW1 raised him on mobile phone and he proceeded to the Appellant’s office. He knew both the Appellant and PW1 as he too dealt in hides and skins. Before he could arrive, PW1 called him and informed him that he had managed to free himself. PW2 examined PW1 on 12th March, 2013. His results were that he had tenderness on the right shoulder which had reduced its movement. He assessed the degree of injury as harm and the same to have been caused by a blunt object. He produced the P3 form as Exhibit number 4.

The case was investigated by PW4, PC Patrick Musyoka of Industrial Area Police Station. He summed up the evidence of the prosecution witnesses. He confirmed that the case originated from a debt of Kshs 88,335/= that the Appellant owed PW1 after he bought 134 pieces of leather on credit. He confirmed the same by a delivery note that PW1 had issued to the Appellant. He produced it as an exhibit in court. He also confirmed that the Appellant assaulted PW1 after he went to the latter’s office to demand the payment of his debt. He issued PW1 with P3 form and preferred the charges against the Appellant.

After the close of prosecution case, the court ruled that the Appellant had a case to answer and was accordingly put on his defence. He gave an unsworn statement of defence. He stated that he was in the leather business and that on 12th March, 2012 he received a call from his secretary informing him that the Appellant was in the office to see him. He then asked the Appellant why he wanted to ruin his business. The complainant then caused a commotion in his office and he demanded that he leaves. On his way out, the complainant threatened his watchman which prompted him to file a report with the police vide OB No. 13/12/3/2012. It was while he was filing his complaint that two police officers namely Kamau and Musyoka informed him that he was under arrest on allegations that he had assaulted PW1. On his part, he denied committing the offence.

Determination

The Appellant was acquitted in count II under Section 210 of the Criminal Procedure Code. I have considered the evidence on record and the respective submissions by both the counsel for the Appellant and counsel for the Respondent. It is my humble view that counsel for the Respondent rightfully conceded to the appeal in light of glaring material contradictions and discrepancies in the evidence of the prosecution witnesses. More importantly was with respect to the medical evidence adduced vide the P3 form produced by PW2 Dr. Maundu The same called into question the propriety of the examination done by him as well as to whether or not PW1 actually sustained the injuries. It also raised questions on whether he was examined on the date he indicated he went to the hospital.

At the commencement of the trial, the defence was furnished with a copy of P3 form issued to PW1 dated 12th March, 2013. When PW2 testified, he purported to adduce a P3 form which did not bear the exact entries on the P3 form that was furnished to the defence. At that point, the defence objected to the production of the P3 form that PW2 had. The court ordered that they be furnished with the said copy of the P3 Form.

The latter P3 form bore two dates. One was the date on which it was filled which was 12th March, 2013 and another date of 5th April, 2013 against the note of the approximate age of the injuries. When PW2 was questioned about this discrepancy, he indicated that the P3 form was returned to him by the investigating officer to amend the date of the examination. He stated that this was necessitated by the fact that he had confused the date of the examination as 11th March, 2013. But this assertion is clearly rebutted by the fact that the amended date which anyway is an additional date is indicated and signed against the note of the approximate age of injuries. It did not relate to the date of examination. In fact, a stamp is appended against the same date. It is also worth to note that there is a cancellation by hand of the approximate age of the injuries so that it is shown as one day against the cancelled two days earlier written. This further contradicts the testimony of PW4 that the amendment was intended to effect the date of examination. Be that as it may, the court cannot wish away the evidence relating to the age of the injury. This is so because, according to PW2, he examined PW1 on 12th March, 2013. Therefore, the amendment of the date of the age of the injury having changed to the 5th April, 2013, meant that the injuries were approximately three weeks old. The safest conclusion to arrive at is that PW2 was not treating the injuries that PW1 sustained on 11th March, 2013.

It is also noteworthy that PW1 testified that he was assaulted on 12th March, 2013. The charge sheet on the other hand indicates that the offence was committed on 11th March, 2013. No explanation was given to this obvious discrepancy which again casts doubt on whether any assault was meted against PW1.

Another twist plays in that also puts into question the culpability of the Appellant. According to the Appellant, it is PW1 who caused a commotion in his office. Immediately PW1 left his office, he rushed to Industrial Area Police Station to make a report which was record vide OB number 13/12/3/2013. As he was recording his statement, PW1 followed at the Police Station and made complainants relevant to the instant case. His complaint was recorded under OB No.34/12/03/2012. The question that follows would be, whether PW1 went to the police station upon learning that the Appellant had lounged a complaint against him. Further to this, it is clear that the Appellant was arrested after PW1 had arrived at the police station. This leads me to conclude that the Appellant’s prosecution was motivated by bad faith on the part of the police. The conviction of the Appellant in the circumstances was not safe.

The upshot of my finding is that the prosecution did not prove its case beyond a reasonable doubt. I accordingly quash the conviction and set aside the sentence. I order that the Appellant be set free unless otherwise lawfully otherwise held. The fine he paid should be refunded to him.

DATED AND DELIVERED THIS 30TH DAY OF NOVEMBER, 2017

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Mr. Muriithi for the Appellant

2. M/s Sigei for the Respondent.