[2023] KEHC 25575 (KLR)

Taboi v Republic (Criminal Appeal E046 of 2023) [2023] KEHC 25575 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25575 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E046 of 2023

RN Nyakundi, J

November 21, 2023

Between

George Kirwa Taboi

Appellant

and

Republic

Respondent

(Being an appeal arising from the judgment and conviction of the Learned Trial Magistrate Hon. R. Odenyo delivered on 16. 05. 2023 in Eldoret Criminal Case No. E3551 of 2021)

Judgment

Coram: Before Justice R. NyakundiM/s Mwaka & Co. AdvocatesMr. Mugun for the State 1. The appellant was charged with three counts. The 1st count was the offence of grievous harm contrary to section 234 of the Penal Code. Particulars of the charge were that on the 5th day of September, 2021 at 18:20 hrs Seiyot village, Turbo sub-county within Uasin Gishu County, he did grievous harm to David Macharia Njoroge.

2. In the 2nd count, the accused faced a charge of threatening to kill contrary to section 223(1) of the Penal Code. Particulars of the charge are that on the 5th day of September, 2021 at 18:20hrs in Seiyot village, Turbo Sub-County within Uasin Gishu County without lawful excuse, the appellant uttered words “Leo sisi Wakalenjin tumekukujia juu umetutawala sana.”, threatning to kill David Macharia Njoroge.

3. In the 3rd count, the accused person faced the charge of malicious damage to property under section 339(1) of the Penal Code. Particulars are that on the 5th day of September, 2021 at 18:20 hours at Seiyot village, the accused person unlawfully destroyed window glasses valued at Kshs 2,800/= the property of David Macharia Njoroge.

4. The matter proceeded to full hearing and the prosecution availed four witnesses in support of their case whereas the accused did not have any witness.

5. PW1, the victim testified that on that fateful day when he got home, one Lillian Bomali was at home. He stated that he had contracted her to cook for him that day. He requested to be served with tea and once he was served, he heard some commotion in the Kitchen area. He then saw Lilian rush into the sitting room and close the door from the inside. That he heard some banging from sound from the bedroom and heard window panes breaking.

6. The witness testified that we got up to see what was happening. He saw the accused person and when he asked what was happening, Lilian told him that the wife of the accused had run away from the accused and was seeking refuge in his home. He stated that he told the accused person that his wife was not in his home. The accused then stated that he was not after his wife but after the victim. A war ensued and the accused attacked the victim cutting his left thumb. Just then one Julius Misor came to the scene and told accused that he has done a bad thing. The accused calmed down and left the compound in the compound of Julius Misor.

7. He further testified that he walked to Jua Kali police station where he reported the matter and went to hospital where he was treated. The next day he went back to the police station, was issued with a P3 form and filled.

8. The witness stated that he had known the accused before the incident. That he had even treated accused persons’ cows on credit.

9. On cross examination, by defence counsel, he said that the accused attacked him in his (witness) own house. He denied that he had any grudge against accused. That the accused went to his home looking for his (accused’s) wife, not Lilian. That the accused was alone when he attacked him. That the accused cut off his thumb as he tried to dodge the panga.

10. PW2, Lilian Bondi, testified that on 5. 09. 2021 at about 6:00P.M., she was at the home of PW1 washing plates at the sink when accused came there and attacked her and PW1. That as the accused was assaulting PW1, he was saying that PW1 had snatched him his wife. That Julius Misor came to the scene and stopped accused from further assaulting them.

11. On cross examination by the accused, she stated that she knew the accused well. That she did not see the wife of accused in PW1’s home on that day.

12. PW3, a clinical officer based at Turbo Sub-County Hospital. She produced a P3 from she had filled when she examined PW1. She testified that PW1 has injuries on his hands. He had a deep cut wound on the left thumb which was amputated. She classified the injuries as grievous harm.

13. PW4 was a police officer who testified as the investigating officer. He produced exhibit photos of PW1’s severed thumb and the report of the scene of crime officers.

14. On cross examination, he testified that he has not managed to get all the people who witnessed the incident.

15. When the accused was put on his defence he gave sworn evidence and did not call any other witness. He testified that he went to PW1’s home to pick his wife who was having an affair with PW1. That when he reached PW1 home, he knocked on the window. That PW1 came out with a panga intending to cut him and he blocked the panga using his rungu. That the panga fell on PW1’s finger thereby cutting PW1.

16. On cross-examination he stated that on the material day PW1 was together with his wife and PW2. That PW2 and PW1 are also lovers. That PW2 was washing utensils when he reached PW1’s house.

17. Upon considering the evidence before the court and the testimonies of the witnesses, the learned trial magistrate convicted the accused person of the three counts as follows:

18. On count 1, the accused was sentenced to 8 years’ imprisonment. On count 2, the accused was sentenced to serve 4 years’ imprisonment and on count 3 the accused was sentenced to 3 years imprisonment.

19. Being aggrieved with the sentence and conviction, the appellant instituted the present appeal vide an amended petition of appeal dated 27th July, 2023 premised on the following grounds;1. That the trial magistrate erred din law and fact by misapprehending the facts and evidence tendered in court and hence convicting and sentencing the appellant based on contradicting evidence of the witnesses in court.2. That the learned trial magistrate erred in law by failing to independently analyse and/or evaluate the evidence before drawing conclusions as by law required.3. That the learned trial magistrate erred in law and in fact by convicting the appellant on evidence that was not corroborative.4. That the learned trial magistrate erred in law and in fact by not considering the fact that the prosecution failed to call crucial witnesses to wit one Julius Misor who was mentioned by both PW1 and PW2 as having being present at the time of the alleged incident.5. That the learned trial magistrate erred in law and in fact by admitting into evidence the crime scene photographs allegedly taken by the investigating officer improperly and contrary to the law of evidence.6. That the learned trial magistrate erred in law and in fact by improperly admitting into evidence the crime scene photographs and the certificate despite the fact that the crime scene officer who certified the same not having been called to testify, produce, mark or identify the same.7. That the trial magistrate erred in law and in fact by failing to consider that the evidence of PW1 and PW2 as concerning the presence of the appellant’s wife was contradictive and not corroborative.8. That the trial magistrate erred in law and in fact by failing to consider that the evidence of PW1 on the kind of weapon he was armed with and at the moment during commission of the alleged offence was contradictive and not corroborative.9. That the trial magistrate erred in law and in fact by failing to consider that the evidence of PW1 and PW2 as concerning the presence of the appellant’s wife was contradictive and not corroborative.10. That the trial magistrate erred in law and in fact by failing tp consider that the defence evidence and testimony of the appellant being armed with a rungu in the wake of an admission of PW1 that he was also armed with a panga which h later changed to wooden plank.11. That the trial magistrate erred in law and in fact by failing to consider that the medical evidence produced in court (P3 form) had apparent contradiction in the wake of the medical history of the patient having some with an amputated thumb then the treatment given being amputation.12. That the trial magistrate erred in law and in fact by failing to consider that in their evidence PW1 and PW2 did not in their testimony allude to the left thumb of the PW1 having been chopped off at the scene.13. That the trial magistrate erred in law and in fact by convicting and sentencing the appellant on a defective charge sheet and more so failing to note that the particulars of the offence in count one were missing and did not support the charge of grievous harm.14. That the trial magistrate erred in law and in fact by convicting and sentencing the appellant on a defective charge sheet and more so failing to note that the particulars of the offence in count two did not in any way contain any word amounting to intention to cause death or imputing such motive and did not support the charge of threatening to kill.15. That the learned trial magistrate erred in law and in fact when he found that the prosecution had satisfied all the elements of the charge of causing grievous harm contrary to section 234 of the Penal Code, threatening to kill contrary to section 223 of the Penal Code and malicious damage contrary to section 339(1) of the Penal Code.16. That the trial magistrate erred in law and in fact when he misapprehended the facts and evidence tendered before court thus arriving at a wrong decision both on conviction and sentence when he concluded that the appellant threatened to kill the complainant and destroy his property.

Appellant’s case 20. The appellant’s counsel filed submissions on 9th November, 2023. Counsel made his submissions in four limbs, capturing all the grounds of appeal as set out in the amended petition of appeal.

21. On limb one, counsel submitted to the effect that the evidence adduced by PW1 was not only contradictive but also unreliable and incredible to sustain a conviction. That the Complainant (PW1) in his evidence in chief told the court that PW2 actually told her the appellant’s wife had run away and sought refuge in his home and the appellant had pursued her there and again in cross examination he admitted that the appellant was looking for his wife not Lilian but when PW2 gave her evidence she did not allude to seeing the appellant’s wife but in cross examination she denies ever seeing the appellant’s wife in the complainant’s house that day.

22. Counsel further submitted that from the evidence adduced, it was clear that the complainant PW1 initiated the attack and was also armed and though that bit of evidence was contradictory it introduced the element of doubt which the trial court ignored in its decision.

23. It was counsel’s observation that there were apparent contradictions on what really happened on whether the complaint’s left finger was really chopped, cut off or amputated as a consequence of the alleged attack. He submitted that it was unclear from the evidence of the complainant and his witness (PW2) which thumb sustained a cut and which one was chopped off.

24. On the second limb, counsel submitted that the prosecution failed to call crucial witnesses. That the wife of the appellant was mentioned by both PW1 and PW2 to have been involved but was not called. Further that the trial court failed to note that the eye witness evidence was given by the complainant and his other witness (PW2) who admittedly was his servant and was full of contradictions and not well corroborated and in that case should have noted the evidence of the evidence of the other names of witnesses missing as they were not called as witnesses and therefore the evidence of the two was not sufficient to convict the appellant.

25. It was submitted for the appellant that the prosecution clearly listed the said Julius Misoi as a witness number two in the charge sheet present to court but failed to call him for unexplained reasons and therefore it is clear that the omission was fatal to the prosecution’s case which the trial court failed to consider.

26. Counsel for the appellant maintained that the investigating officer told the court in cross examination that he did not manage to get all the people who witnessed the incident but he also did not call the officer named in the Exhibit memo or the crime scene officer who prepared the report.

27. Thirdly, it was submitted for the appellant that there was a mistrial in the proceedings as there was no clear indication as to whether the ingredients of the offence of grievous harm and threatening to kill were met in convicting the appellant.

28. Finally, the appellant’s counsel challenged the validity of the charge sheet on grounds that the particulars were not elaborate and the said charge sheet clearly indicates the words used in the particulars have nothing or words that threaten to kill the complainant in their plain meaning and interpretation either way. That the evidence of both PW1 and PW2 in regards to the particulars of the charge sheet is not only contradictory but also does not capture the particulars in the charge sheet and renders the same defective and the said count and charge sheet.

29. In sum the appellant’s counsel submitted that given the contradictions, corroboration, procedural defects, failure of the trial court to analyse the evidence, failure to call crucial witnesses warrants setting aside of the trial court judgment and allowing the present appeal.

30. There were no submissions tendered by the respondent.

Analysis & Determination 31. This being a first appeal, this court is under a duty to re-evaluate the evidence, subject it to an exhaustive scrutiny and draw its own inferences of fact so as to come to its own independent conclusion, as to whether or not, the decision of the trial court can be sustained. In doing so, the court is conscious of the that the trial court had the advantage of observing the demeanor of witnesses.See Okeno v Republic [1972] EA 32.

32. Upon considering the petition of appeal and the appellant’s written submissions, the following issues arise for determination;1. Whether the prosecution proved its case to the required standard2. Whether the conviction and sentence ought to be set aside

Whether the prosecution proved its case to the required standard 33. The Appellant was charged with three counts. The 1st count was grievous harm contrary to section 234 of the Penal Code.

34. Section 234 of the Penal Code provides for the offence of Grievous Harm as follows:234. Grievous HarmAny person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.

35. Section 4 of the Penal Code defines grievous harm as follows: -“grievous harm” means 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;

36. I note that the appellant was charged under section 234 of the Penal Code and that the same is the punishment section; the charge sheet ought to have indicated section 231 as read with section 234 of the Penal Code. For the appellant to be convicted of the offence of doing grievous harm c/s 231 as read with section 234 of The Penal Code, the prosecution had to prove each of the following essential ingredients beyond reasonable doubt;a.The victim sustained grievous harm.b.The harm was caused unlawfully.c.The accused caused or participated in causing the grievous harm.

37. Concerning the first element, bodily “harm” means any bodily hurt, disease or disorder whether permanent or temporary. The nature of grievous harm is defined by section 4 of The Penal Code 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 a permanent or serious injury to any external or internal organ, membrane or sense.

38. The specificities of "grievous harm" therefore are; (1) in the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, to amount to bodily harm, the injury to health need not be permanent (2) a mental injury may amount to grievous harm but not to bodily harm (3) the injury must be "of such a nature as to cause or be likely to cause" permanent injury to health.

39. In the instant case, PW3 testified that the complainant had injuries on his hands. That he had a deep cut wound on the left thumb which was amputated. He stated that the victim was stitched on the amputated thumb among others lines of treatment. He also testified that the weapon used was a panga. These findings were all reflected in the P3 form by which the injury was classified as "grievous harm." This evidence was not impeached in cross-examination nor controverted by the defence. I note that the complainant was reported to have been examined at Turbo Sub-County Hospital; I have not seen the treatment notes being tendered in evidence. In order for this court to be persuaded that indeed the injuries that Pw1 had suffered as indicated on the P3 form were the same as those noted by the medical personnel who attended to Pw1 hours within when the injury was occasioned, I would have expected to see the treatment notes from Turbo Sub- County hospital.

40. The second element required proof that the injury sustained by the complainant was caused unlawfully. This means that the same was without legal justification or excuse. I find that the evidence of the appellant seemed to raise the defence of self defence and it is trite law that an accused person bears no obligation of proving his innocence but the prosecution bears the burden of proving the guilt of the accused. I have also come to that conclusion that the prosecution failed to prove beyond reasonable doubt that the injury sustained by the complainant was caused unlawfully, because what was seemingly an act in self defence raised doubt in the prosecution case.

41. On the aspect of participation of the appellant, there is credible direct evidence of PW2 as well as the appellant placing the appellant at the scene of the crime as an active participant in the commission of the offence. In addition, the appellant’s evidence did not controvert the evidence that he was seen at the scene. He told court that on the material day he had gone to the complainant’s house to pick his wife and the complainant came out of his house armed with a panga and on attacking him he defended himself with a rungu resulting in the panga slipping and cutting the complainant. It is also a fact that PW2 in her evidence had alluded to the appellant being armed with a wood that had a big nut. The truth of the matter cannot be elicited from the evidence of the prosecution as the evidence is too weak to enable this court tell who exactly was telling the truth. I see no reason to doubt the evidence of Pw1 where he identified the appellant as the person who attacked him and I agree with the satisfaction of the trial court with the evidence on identification of the appellant.

42. On the second count, the court finds that the prosecution did not prove its case to the required standard. The Complain was not corroborated by the testimony of the PW2. Corroboration evidence has a dual function whereby not only does it have a primary function of providing direct evidence supporting the main conclusion, but it also has a secondary bolstering function which increases the probative value of some other piece of evidence in the case. So far as I can tell the trial magistrate did not address this problem in analyzing the evidence in support of count 2 posing an inaccurate modeling and improper evaluation of the evidential structure of the case. Generally speaking though a fact can be proved by a single witness strengthening occurs when the overall probative force of a mass of evidence upon such conclusion of guilty is increased by additional evidence. There is a sense in which corroboration carries more weight than a single testimony which perhaps carries the weakest notion of the existence or non-existence of facts in issue. This initial account persuades me to interfere with the decision of the trial court with regard to count 2. Looking at the testimony given by PW2, there were no words uttered to support the charge. The conviction and sentence is therefore set aside.

43. Similarly, in explaining the legal account respectively with the third count I am of the considered view each piece of evidence contributes to the overall outcome made by the trial magistrate. It is apparent that it was proved beyond reasonable doubt giving it an independent support to the main conclusion. I find no reason to arrive at a different inferential decision than that other primary conclusion drawn by the trial court. The third count passes the threshold of an element of the offence proved beyond any reasonable doubt.

On sentencing 44. The sentencing objectives in Kenya have been captured in the Judiciary Sentencing Policy Guidelines at page 15 to be the following: -1)Retribution: to punish the offender for his/her criminal conduct in a just manner.2)Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3)Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.4)Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.5)Community protection: to protect the community by incapacitating the offender.6)Denunciation: to communicate the community’s condemnation of the criminal conduct.

45. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.d)Protection of the community: - where the offender is likely to pose a threat to the community.e)Offender’s responsibility to third parties: - where there are people depending on the offender.f)Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.

46. The offence of grievous harm c/s 234 of the Penal Code is a felony attracting a maximum punishment of life imprisonment. The appellant was sentenced to 8 years imprisonment on this count. Under section 382 of the Criminal Procedure Code, this court has no power to alter the sentence of the trial court unless the same was illegal.

47. On the final analysis the following orders shall abide:1. That the appeal partially succeeds in so far as count 2 is concerned by setting both conviction and sentence aside in their entirety.2. That the appeal on the primary count of grievous harm contrary to section 234 on both conviction and sentence fails3. Similarly the appeal on count 3 fails on conviction part partially succeeds on sentence which is hereby reviewed to a term imprisonment of two (2) years.4. Given the gravity of count 1 the sentence shall run consecutivelyConsequently 14 days right of appeal explained.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 21ST DAY OF NOVEMBER, 2023. ..............R. NYAKUNDIJUDGEIn the presence ofMr. Mwaka Advocate for the AppellantAppellant PresentMr. Mugun for the State.