[1999] KEHC 5 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Criminal Appeal 51 of 1999

RONALD MWASUNGIA NGUTA .........APPELLANT VERSUS REPUBLIC ..........................................RESPONDENT

CONSOLIDATED WITH

CRIMINAL-APPEAL NO,53OF 1999

GRANTON KONDI ……………..………APPELLANT

VERSUS

REPUBLIC........................................... RESPONDENT AND CRIMINAL APPEAL NO. 56 OF 1999

SALIM MWAEKE LUGE...................... APPELLANT

VERSUS

REPUBLIC ……………………………RESPONDENT

(From the original Chief Magistrate's Criminal case No. 3572 of1997 before B. Maloba- Senior Resident Magistrate at Mombasa).

J U D G E M E N T:

Appeal Nos, 51/99, 53/99 and 56/99 were on application by theState and without objection from the Appellants consolidated andheard together. -They arose from the same trial before MombasaSenior Resident Magistrate in which the Appellant in 51/99 was the1st Accused (hereinafter Nguta), the Appellant in 53/99 was the 2ndAccused (Kondi) and the Appellant in 56/99 was the 3rd Accused(Luge), They all faced and were tried on the charge ofManslaughter where it was alleged that they jointly with others notbefore court, on the night of 6th/7th February 1997 at MangombeVillage of Sagala Location, Taita Taveta, unlawfully killed onePATRICK KONDI KINOI. They were all convicted and sentenced toserve 7 years imprisonment each. They were unrepresented at thetrialNguta drew up 9 grounds of Appeal to challenge the convictionand sentence. He also argued them in person as drawn. In summaryhe contended that the sentence was excessive in all thecircumstances and the incident was an unfortunate accident arisingin the cause of the Appellant's duties.

Luge also drew up, 8 grounds and relied on them as drawn. Hereiterated that it was an unfortunate accident and the sentence wasexcessive in all the circumstances.Kondi however instructed an Advocate, Mr. Wanyonyi who drew upa petition advancing 7 grounds of Appeal. He argued themseriatim. They, may be reproduced:

"1) The Learned Magistrate erred in law and infact in convicting the Appellant solely on theevidence of a dying declaration.

2) The Learned magistrate erred in law and infact in failing ,to find that the allegationsagainst the Appellant by PW 1 and PW 2 werehearsay and inadmissible.

3) The Learned magistrate erred in law in failingto make a finding that the deceased was in thecompany of the 1st, 3rd accused and others notbefore the court and that the 2nd accused wasnot the one who caused the death of thedeceased. The cause of death was a headinjury caused by a blunt object.

4)The learned Magistrate erred in law and in fact in stating that PW 4's evidence is thepivotal point. PW 4's evidence against theAppellant is untenable in the circumstances. 5)The learned Magistrate misdirected herself in relying on the evidence on PW 9 who claims tohave talked to the Appellant without recordinga cautionary statement.

6) The learned Magistrate erred in law and infact in convicting the accused persons oncontradictory evidence of the prosecutionwitnesses and of events that took place indarkness and at night.

7) That the sentence of seven (7) yearsimprisonment was excessive considering the circumstances of the case".

The facts are fairly straightforward. Nguta and Kondi wereteachers in a local school in Sagala location. Luge was not ateacher. There was a third teacher and two members of the publicwho were also suspects but were not charged. The deceased was a 20year old boy who was in Std. 8 in school.

On 6. 2.97, Nguta received information that his house had beenbroken into and his sewing machine and radio were stolen. He

sought permission from the headmaster, Kondi, and Went home. Heconfirmed the information and reported to the chief.

On the same day at about 11 p.m. Luge in the company of oneMasaiwent to the home of OneMwakima Joan(Mwakima) (PW4) who'wasstaying with his brothers. They found the deceased there andaccused him of having stolen the sewing machine of Nguta. Theysaid they would take the deceased to the chief. Mwakima followedthem and saw Luge and Masai beat up the deceased with a rungu.They reached the home of Nguta but did not find him. Luge andMasai then beat up the deceased again until he said the machine wasstolen by PW 3 Laban Kinoi (Laban).

They headed for the home where Laban was staying with hisparents and found him. According to Laban (PW 3) the four of themarrived at 4 a.m. on 7. 2.97 and asked him if he knew anything aboutNguta's sewing machine. He said he did not. He was asked toaccompany them to Nguta's home but on the way Luge and Masaistarted beating him up.

They found Nguta at home. Masai said he had brought thesewing machine thieves. Nguta then took a rungu and startedbeating up Laban and the deceased. Laban was hit on the back,hands and knees. The three; Nguta, Luge and Masai' beat up the twoyoung men. Mwakima was present.

They decided to take Laban to his parent's home. On the waythey met Kondi, the headmaster heading for work. Kondi then tooka rungu from Masai and hit the deceased on the back. He told theothers he had started his work and the rest should finish it.Kondi went away.

At Laban's home the parents confirmed he was at home on thematerial day and he was released. Later he was taken to hospitalfor treatment of his injuries.

But the deceased was left with Nguta, Luge, Masai and Mwakima.He could not walk and lay on the grass. Mwakima and Masai left himthere with Nguta and Luge. They went to the deceased's home tolook for the sewing machine. They informed the people they foundthere that the. deceased,had been beaten up. When Mwakima returned,to the spot he did not find the deceased or Nguta and Luge.

Joyce Juma Mwasame PW 5 (Joyce) was going to Voi town at 7a.m. on 7. 2.97 when he found the deceased with four other persons:Nguta, Luge, Masai and Mwakima (PW 4). He knew them. They werebeating the deceased and. one of them Masai had a whip. Thedeceased asked for water and she gave him some. He denied that hehad stolen anything. Joyce went her way and left them,there. shesaw injuries on the face and fingers of the deceased, on her wayback from Voi she found the deceased who told her he had beenbeaten and hidden in between stones. He crawled to another woman'shome and was taken to hospital on a wheelbarrow. Cross-examinedhowever, Joyce stated that she did not see any of the two, Ngutaand Luge beating the deceased.

Another woman Jedida Grace Mwagonde (Jedida)(PW6) was alsogoing to Voi town that morning at 7. 30 a.m. She also found, thesame 4. people, Nguta, Luge, Masai and Mwakima (PW 4} on the way.The deceased and Mwakima were seated. Nguta told her the deceasedhad stolen his sewing machine. The deceased denied it. She sawsome injuries on the deceased's hands and she was told he wasbeaten as he tried to escape. As far as she could remember all thethree persons Nguta, Luge and Masai had whips. She did not howeverwitness any of the Appellants beating the deceased.

At about 3. 30 p.m. on 7. 2.97 Nguta. went to the Chief's officeand reported to A.P.C. Davis; Meloji (APC Meloji).(PW 8) that theyhad caught someone who had stolen a radio and he was unable towalk. APC Meloji called the'police on telephone.

The mother of the deceased (PW 1) was at Voi Market where shecarries on business. She heard about her son's beating up on8. 2.97 and she headed for Voi hospital where she found the deceasedunconscious. Nguta and Luge were also there. She talked to Ngutaand he told her the deceased was beaten by his (Nguta's) brothers.The deceased could not be admitted unless there Was a policedocument and so the mother went to PW 9 PC Nabiswa at 5 p.m. andcollected the letter for admission to hospital, Whilst at thepolice station, PC Nabiswa saw the deceased was badly beaten andcould only talk with difficultly. He talked to him and thedeceased said he was beaten by Nguta, Kondi Masai and Mwaeke(Luge).

PC Nasibwa arrested Nguta who was in the vehicle carrying the deceased and placed him in custody. He was unable to arrest Kondiuntil 6. 3. 97 when Kondi produced a small stick with which he saidhe had beaten the deceased. The mother of the deceased also saidthe deceased told him who beat him up before he died. Luge wasarrested on 29,7. 97 by PW 10.

Medical evidence was tendered through PW 11 Dr. Harun Kimaniwho performed the Post Mortem on the deceased. He noticed multipleblunt injuries but no major wounds.' There was only a crack on theleft temporal region and moderate subdural haemorrhage. He formedthe opinion that the cause of death was due to head injury due toa blunt weapon. The internal bleeding was slow and compressed thepain. It could take several hours or a week to cause death.

All the Appellants gave sworn testimony in their defence.Nguta stated how he, received a report on the break-in to his houseand stealing of his radio and sewing machine. He went andreported to the Chief. He later went to the police station wherehe heard the mother of the deceased say he was one of the personswho assaulted the deceased and he was immediately arrested.

Kondi said he was with Nguta at the school when the reportabout Nguta's house having been broken into was made. As theheadmaster, he allowed Nguta to go and deal with the matter. Hewas arrested on 6. 3.97 when he went to Voi police station afterbeing told the police wanted him.

For his part Luge simply said he was working at Maungu Ranchon 27. 7.97 when an Administration Policeman told him he was wantedat Voi Police Station. He went there and was arrested and charged.

The learned trial Magistrate analysed the entire evidence andbelieved the prosecution witnesses particularly, PW 3, Laban and PW4 -Mwakima, who were eye-witnesses. She was in no doubt that theAppellants who were well known to the prosecution witnesses whotestified they had seen them assault the deceased did in fact doso, The deceased himself who was conscious for sometime named theAppellants as his assailants in the hearing of several witnesses,among them his mother, (PW 1) Joyce(PW 6), Jedida (PW 6],

Peter Kinoi (PW 7) and PC Nasibwa (PW 9). The fatal blowaccording to Dr, Kimani was caused by a blunt object. Witnesseswho testified mentioned several such objects.. It was clear to thetrial Magistrate that the Appellants had the intention of metingout instant "Justice" (more of an injustice) to the deceased on the,pretext that he had stolen Nguta's property.

Learned Counsel Mr. Wanyonyi submitted on behalf of Kondi,that the evidence of dying declaration was erroneously relied on bythe trial Magistrate since the actual words were not stated bythose who allegedly heard them. All the prosecution witnesses whopurported to have heard the deceased before he died gave varyingversions of what he stated. At any rate some of the witnessesmerely gave hearsay, evidence particularly PW 1, the mother and PW2 the father both of whom were no where near the scene. The sources of their information were not called as witnesses.

As for the eye-witnesses Laban (PW 3) and Mwakima (PW 4), hesubmitted that they both stated that Kondi was only met on the wayand was never in the company of the other appellants. NeitherJoyce (PW 5) not Jedida (PW 6) mentioned him. Simply put theAppellant Kondi was not in the group that was said to have beenwith the deceased. It was erroneous therefore for the trialMagistrate to say Kondi was identified to have been in that group.There could not therefore have been a joint or common intentioninvolving Kondi. Even the Post Mortem Doctor gave his opinion thatthe cause of death was an injury on the head while the availableevidence was that Kondi hit the deceased once on the neck or back.

Death, Mr. Wanyonyi submitted, was due to the failure toadminister immediate and adequate treatment on the deceased and not, due to any injuries caused by the Appellants.

As for the alleged confession made to PC Nasibwa by Kondi andthe production of the object used in inflicting the injury on thedeceased, Mr. Wanyonyi submitted that a confession cannot be made,to a Police Constable. Therefore PC Nasibwa's evidence as regardsKondi should not have been admitted.

He cited various passages relating to "rungu", 'stick' or'whip' and submitted that there were material contradicts in theprosecution case.

As for sentence, Mr, Wanyonyi submitted that it was excessiveconsidering that the two other Appellants had taken the deceased tohospital. No dangerous weapons like knives, or pangas were used.It was an unfortunate death caused by lack of treatment.

Senior State Counsel Mr. Gumo however supported the findingsof the learned trial Magistrate. He only conceded that there wereserious misdirection's as regards the dying declaration which wascontradicting and uncertain. But the other evidence on record wasconsistent and credible.and established that all .three Appellantsjointly assaulted the deceased,Mr, Gumo also supported the sentence, submitting that the.Appellants took the law into their hands and caused the loss of ayoung life The act was brutal and the sentence was commensurate.

I have carefully considered all the evidence on record and thesubmissions of Counsel.

Reliance was made by the Learned trial Magistrate on what werealleged to be dying declarations of the deceased. But as correctlyobserved by both defence and state counsel such declarations arecontradicting and at best uncertain and ought not to have beenrelied on without reservation.

The learned trial Magistrate however believed on the testimonyof the eye witnesses Laban PW 3 and Mwakima PW 4 and I have noreason to doubt it either, They squarely established that Ngutaand Luge were at the epicentre of the assault and batteringperpetrated on the deceased. They actively participated in theassault, and did not at any rate, take action to prevent suchassault which took place in their presence. They cannot escapeliability for that cowardly and unlawful act. It may well be sothat they did not use deadly weapons like knives and pangas andindeed the Doctor who performed the Post Mortem found no seriouswounds on the body. But whatever object was used even if it befists, it caused one fatal injury which could have been preventedby the two Appellants Nguta and Luge following the lawful processof reporting the theft of Nguta's property to the Police andletting the law take its course. The victim must be taken as he isfound and it is no defence to a Manslaughter charge, that, thedeceased had a thin skull or was weak generally or did not receiveimmediate treatment after the injury.

I find no merits in the Appeals by Nguta and Luge.

As for Kondi, the only evidence connecting him with theoffence is the allegation that he was met on the way by the groupholding the deceased and he administered one blow on the deceased'sback, according to PW 3 or neck according to PW 1 with a rungutaken from one Masai who was never arrested or called as a witness.Other evidence by other witnesses was essentially hearsay ordoubtful as in the deceased's dying declaration which I have so fardiscounted. The role played by Kondi, if any, remains doubtful andit was not safe to lump him together with the other appellants andto charge him with the serious offence of having killed thedeceased. • In the circumstances I give the benefit of doubt to the Appellant Granton Kondi and allow his Appeal. I quash theconviction and set aside the sentence. He shall be set at liberty forthwith unless he is otherwise lawfully held.

As for the sentences meted out on the other two appellants, itis clear that they were first offenders. They took the law intotheir own hands instead of following laid down procedures forreporting alleged crimes for investigation. A young life was lostin the process and cannot be recalled. Both the principles ofrestitution and deterrence are certainly applicable here. There isnevertheless the mitigating factors that the Post Mortem report didnot reveal other injuries on the body save for the injury on thehead which did not cause instant death. The Appellants appear tohave been minded to take the deceased for treatment as one of themwas still in the vehicle taking him there when he was arrested.

The mother of the deceased indeed testified that the AppellantNguta offered to treat the child.

All these are circumstances which ought to have beenconsidered on sentencing but were not. In the circumstances. I willinterfere with the sentence imposed against the AppellantsRonald Mwasugina Nguta and Salim MwaekeLugeby setting it aside and substituting therefore a term of imprisonment of 5 years commencing on the date of conviction by the lower court. To that extent only, the Appeals of those two Appellants succeed.

Dated at Mombasa this 26th day of November, 1999.

P.N WAKI JUDGE