[2022] KEHC 17272 (KLR)

Swaleh v Republic (Criminal Appeal E040 of 2021) [2022] KEHC 17272 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 17272 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E040 of 2021

SM Githinji, J

October 4, 2022

Between

Muslih Ali Swaleh

Appellant

and

Republic

Respondent

Judgment

1. Muslih Ali Swale was charged in the lower court with two counts; the first one being of threatening to kill Contrary to section 223(1) of the penal code. The particulars of which are that on the December 28, 2019 at around 1400 hours at Mokowe village, Lamu West Sub-county, within Lamu County, the appellant without any lawful excused uttered words “nitakufira leo nimekupata nitakumaliza” threatening to kill Ahmed Issack Maalim.

2. The second court is of assault causing actual bodily harm, contrary to section 251 of the penal code, of which particulars are that on the December 25, 2019 at around 1400 hours at Mokowe village of Lamu West sub-county, within Lamu county, the appellant unlawfully assaulted Ahmed Issack Maalim thereby occasioning him actual bodily harm.

3. The trial court heard the case and found that the prosecution had failed to establish the offence in the first count beyond reasonable doubt, and acquitted the appellant of the same. However, the second court was found established to the required standard in Law. The appellant was convicted on it and fined 30,000/- in default to serve 12 months’ imprisonment.

4. The appellant dissatisfied with the said conviction and sentence appealed to this court on the grounds that:-1. PW2- did not record a statement with the police and was allowed to offer evidence of which the court relied on to convict the appellant.2. The trial magistrate failed to take account of the evidence of PW-2 to the effect that he never saw the appellant push the complainant.3. The complainant’s word should not have been believed against that of the appellant.4. The trial magistrate failed to consider that the appellant was the first to report the said incident at the police station.5. The trial court wrongly held that the appellant was escaping from the scene having committed the alleged offence.6. The defence case effectively challenged the truth of the prosecution case.7. The trial magistrate failed to considered that the complainant said he was hit on the left cheek while medical report stated it was on the right cheek.8. The trial magistrate erred in not finding that the prosecution had failed to prove the case beyond reasonable doubt.

5. The prosecution case is that on December 28, 2019 at about 2 pm the complainant herein had visited Kaunda and was on his way back home. When he got near co-operative office at Mokowe, the appellant emerged from some thickets near Mokowe Primary school. He told him in Swahili “ leo nimekupata na nitakumaliza” which means that ‘today I have found you, and will finish you”. The appellant pushed the complainant into a sewer ditch and then escaped. The complainant fell therein and dislocated his hand. A man called Harkar Kendie, the PW2 in this case found the complainant in the ditch. He pulled him out and escorted him home. He later took him to Mokowe Police Station where they reported the incident. They however found the appellant had earlier reported, claiming that the complainant had assaulted him. PW2 before rescuing the complainant had met with the appellant escaping from the scene. PW3, the investigating officer called the appellant and the complainant to avail their witness. The appellant declined to report back while the complainant did. The complainant was issued with a P-3 form. He was examined at King Fahd Hospital by Dr Chege Edwin who filled the P-3 form. He was given pain killers and the degree of injury assessed harm.

6. The appellant was arrested and charged with the offences carried in the charge sheet.

7. The appellant defence is that on December 28, 2019 at 2 pm he was from a burial at Mokowe. He walked towards home but when he got at a corner, the complainant suddenly attacked him. He retreated back and walked towards the school. The complainant pursued him and in the process fell into a ditch. The appellant did not help him out lest he claimed that its him who had pushed him. The complainant had slapped him on the face. The appellant went to the police station and reported the matter. It was not the first time the complainant had attacked him. He reported the matter to Ahmed and they resolved the matter amicably. However, the complainant made a false report at the police station.

8. The appeal was canvassed by way of written submissions. I have weighed the charge of which the appellant was convicted and the evidence adduced by both sides, judgment passed and the sentence meted, grounds of appeal and submissions.

9. I find the evidence in this case clear and straight forward. The complainant stated how he was injured after the appellant threatened him and pushed him into a sewer ditch.

10. PW2, an elderly person whom the court found reliable, corroborated the evidence that the complainant was thrown into a ditch as he is the one who assisted him from therein. He had as well met with the appellant escaping from the scene. This evidence is convincing that the appellant was the assailant and the culprit. I do agree with the trial court observation that he rushed to report the incident to mislead the police that he was the victim. That’s why he failed to pursue his report when he was called upon to. The raised grounds of appeal when considered against the prosecution case, and the lower court’s findings are unmerited.

11. The appellant defence was rightly dismissed as a lie. The victim suffered actual bodily harm, which constitutes the offence preferred of assault.

12. I do find that the appellant was rightly convicted of the said offence.

13. The sentence is reasonable given the circumstances. Its not an illegal sentence to warrant this court interfere with the same. I leave it as it is.

14. The bottom line is that the appeal lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 4THDAY OF OCTOBER, 2022…………………………………………………S.M.GITHINJIJUDGEIn the Presence of; -The Appellant in PersonMs Mkongo for the Prosecution