[2023] KECA 780 (KLR)

Tole v Republic (Criminal Appeal 114 of 2022) [2023] KECA 780 (KLR) (23 June 2023) (Judgment)

Neutral citation: [2023] KECA 780 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Criminal Appeal 114 of 2022

P Nyamweya, JW Lessit & GV Odunga, JJA

June 23, 2023

Between

Bryson Wanyama Tole

Appellant

and

Republic

Respondent

(Being an appeal from the judgment of the High Court of Kenya at Voi delivered by F. Amin on 22nd December, 2019 in Criminal Appeal No.81 of 2017)

Judgment

1. This is a second appeal. Being a second appeal our mandate is limited by Section 361(1)(a) to consider issues of law only but not matters of fact that have been tried by the first court and re- evaluated on first appeal. In Karani v R [2010] 1 KLR 73 that:-“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.”

2. In Njoroge v Republic [1982] KLR 388 it was held by this Court on the said mandate on a second appeal:“On a second appeal, we are only concerned with points of law and consider ourselves bound by the concurrent findings of fact arrived at in the courts below, unless shown to be based on no evidence.”

3. These are the principles that we shall apply in this appeal.

4. The Appellant was charged before the Senior Principal Magistrates’s Court in Wundanyi, Taita Taveta with one count of grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were:“On 20th February 2017 at around 6. 45pm at Sengenyi village Sagasa Sub Location Werugha Location within Taita Taveta jointly with others not before the court willfully and unlawfully did grievous harm to Livai Mwasambo”.

5. The prosecution called five witnesses. The Appellant gave his defence but called no witness. The facts of the case were the complainant, PW1 was going home from his farm at 7. 30 pm when he was accosted by the Appellant and two others not before court, namely Kanjala and Mwatika. He was dragged to the bush and stripped naked of his clothes. The Appellant opened the complainant’s legs and held him as Mwatika used a knife to cut the complainant’s penile shaft and the skin around the scrotum. PW1 said that Mwakima was his cousin. The three men then held the complainant by the legs and dragged him on the ground. They then dragged him on the road by his legs for fifteen minutes before leaving him naked, bleeding from the penis, scrotum and the back. He lay there for fifteen minutes in excruciating pain, after which he went to the home of PW2, Mwakima who covered him with a blanket.

6. PW2 confirmed PW1’s evidence that he was naked when he went to his house and that he was in great pain and bleeding from his penis.PW2 took the complainant to the house of PW3, Saulo. PW3 was the complainant’s employer. Eventually PW1 was take to several hospitals by PW2 where he was treated.

7. PW4 was Dr, Mohamed Machi. He examined PW1 and filled his P3 form, P. Exh. 3. He said that the complainant was in pain and had a cut on the penile shaft and the scrotum, and multiple bruises on the back. He classified the injuries as grievous harm. PW1 was sutured on his penis and scrotum.

8. The matter was reported to police at Wundanyi Police Station.PW5 was the investigating officer. After investigating the case, he arrested the Appellant and charged him with this offence. The other perpetrators were not found. He produced photographs of PW1 showing the injuries he suffered on the penis and scrotum as P. Exh. 1 (a) to (d).

9. The Appellant was placed on his defence. He gave a sworn defence. He said he knew the complainant, He denied causing him any injuries. He said that the complainant did not identify him. He also said that the complainant had no grudge against him.

10. In a judgment delivered on 24th August 2017, the learned trial Magistrate found the Appellant guilty for the offence. He found that the Appellant had been properly identified as the perpetrator of the offence; that the complainant was grievously injured by the Appellant; that the few contradictory evidence which he found were not fatal to the prosecution case; and that PW1 had remained consistent in his account of events as given to PW2 and PW3 that it was the Appellant, Mwakita and Kanjala who injured him. On 7th September 2017, the learned trial Magistrate sentenced the Appellant to 30 years imprisonment from the date of sentencing.

11. Aggrieved by conviction and sentence, the Appellant lodged his appeal before the High Court at Voi. The Appellant challenged the trial court of failing to consider that the charges were incurably defective; for relying on incredible evidence of a single witness which was insufficient to sustain a conviction; for relied on inconsistent and contradictory evidence of the prosecution witness contrary to Section 163(1) of the Evidence Act and the sentence imposed was manifestly harsh and excessive.

12. The appeal was heard by F. Amin, J. who, in a judgment dated 7th September 2017, upheld the conviction. The learned Judge found that there was no doubt from PW1’s evidence and the medical reports, the photographs of PW1’s injury and the evidence of Dr. Machi that PW1 had suffered a severe injury. She also noted that from the medical report, the complainant will require corrective surgery in future. The learned Judge was satisfied that the PW1 had sufficient time with the Appellant to recognize him, having known each other before. She found that the record did not show that the Appellant had requested for witness statements and so dismissed his complaint that they were never supplied to him.

13. On sentence, the learned Judge ordered Probation Services to prepare a report on the Appellant and include a Victim Assessment Report. She also summoned the Chief of the area where issue arose. There is nothing on record to show if the report of the probation was received and whether there was any decision on the sentence.

14. Aggrieved by the High Court judgment, the Appellant lodged his Notice of Appeal. He then filed supplementary grounds of appeal on which he relied. The Appellant raised the issue that he was not given legal representation at the trial which was contrary to Article 50 (2) (g) and (h) of the Constitution. He relied on Pett v Greyhound Racing Association (1968) All ER 545 for the proposition that not all persons are able to defend themselves and should be given legal representation. In addition, the Appellant challenged the learned Judge for finding that the bundle of witness statements were provided. He urged that the Statements were provided late while Article 50 (l) and (j) of the Constitution prescribes that they be supplied in advance. The State did not respond to this issue. They seem to have filed submissions in relation to the original memorandum of appeal, which the Appellant abandoned. We have considered this complaint. Looking at the judgment of the learned Judge of the High Court it is clear she considered the Appellant’s complaint, which at the time was that the statements of witnesses were never supplied. Her finding was that the issue was not raised at the trial court and that there was no proof from the record of any such an issue arising. We agree with the learned Judge’s finding that no issue was raised at the trial that statements were not supplied. Equally raised was a new issue challenging the admissibility of the photographs without a certificate as required under Section 78 of the Evidence Act.

15. What the Appellant has urged before us are new issue from his initial complaint. The question that follows is how then can the learned first appellate Judge be faulted for having failed to address issues that were never placed before her? This Court when faced with a similar issue in Alfayo Gombe Okello v Republic [2010] eKLR Criminal Appeal No. 203 of 2009 held as follows:“….the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.”

16. The Appellant raised issue with the finding of the lower court and the first appellate court that the complainant properly identified the Appellant. He urged that the evidence was not convincing. Mr. Mulamula for the Respondent, in his submissions urged that the trial Court and High Court found the identification safe and the complainant a credible witness, and that their findings ought not to be disturbed.

17. The issue of identification is a question of fact and does not fall for our determination. The two courts below came to a finding that PW1 identified the Appellant as the incident took a long time, and the Appellant was well known to PW1. We see no fault in the manner in which it considered the evidence of identification, and therefor there is no basis to interfere with their concurrent finding.

18. The last issue raised was on sentence. The Appellant urged that the sentence was harsh and excessive. He urged that his mitigation was ignored. the learned trial court had this to say in sentence:“SentenceIn my humble view the accused committed a very serious crime against the complainant. The pain the complainant has suffered is too much. He has to undergo treatment for the pains he suffered. The accused is not remorseful at all. The court doing the best it can shall sentence the accused to 30 years imprisonment.”

19. The learned Judge on her part deferred the consideration on sentence and ordered for a probation officers report, and specified that the report should include a victim impact statement. The report is not in the file, and it is not clear whether any was filed. It appears the Judge did not re-visit the matter. The issue of sentence was left pending.

20. Mr. Mulamula for the State submitted that the trial Court observed the pain and the manner of execution of the crime and arrived at a decision of sentencing the Appellant to thirty (30) years imprisonment as the appropriate sentence.

21. Section 361 of the Criminal Procedure Code provides as follows:1. A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—a.on a matter of fact, and severity of sentence is a matter of fact; orb.against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.”

22. In this case, the appeal on sentence was properly before the High Court, but that court failed to pronounce itself on the issue raised. That gives this Court a duty to make a pronouncement on sentence. In Karani v R, supra, this Court pronounced itself thus on the mandate of the second appellate:“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered....”(emphasis added).

23. The Appellant faced a charge of grievous harm contrary to Section 234 of the Penal Code. It provides that “Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

24. In recent years there has been debate on what constitutes a life sentence.The High Court in the case of Jackson Maina Wangui & Another v Republic Criminal No. 35 of 2012; [2014] eKLR where the Court held at paragraph 72 and 76 that—“As submitted by the petitioner, however, what amounts to life imprisonment is unclear in our circumstances.It is not, however, for the court to determine what should amount to a life sentence; whether one’s natural life or a term of years. In our view, that is also the province of the legislature.76. …. As to what amounts to life imprisonment, that is a matter for the legislative branch of government. It is not for the courts to determine for the people what should be a sufficient term of years for a person who has committed an offence that society finds reprehensible to serve.”

25. In the more recent case of NOO v REPUBLIC [2019] eKLR Mativo .J. (as he then was) had this to say thereon:“8. It seems to me beyond argument the words “shall be liable to” does not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it.From the comments made by the Magistrate cited above, the learned Magistrate did not address himself to the question whether or not the said provision conferred discretion to him. Differently stated, his discretion in the matter before him remained “un exercised. As a consequence, he imposed the maximum sentence. Alternatively, he misconstrued the said provision to be mandatory and imposed a life sentence, hence, the exercise of his discretion in pronouncing the sentence was unfairly influenced by the said misdirection of the law or failure to exercise his discretion properly or both.”

26. We think that the term “is liable to imprisonment for life” under Section 234 of the Penal Code is not a mandatory sentence, but a maximum sentence for the offence. The trial court was not out of line to impose the term of sentence it did. The trial court did not however consider the Appellants mitigation, and dwelt exclusively on the circumstances and the injury and pain caused to the complainant. There should have been a balanced consideration, of both the victim and the offender at the very minimum.

27. The severity of the injury caused to the complainant would in our view be a guide to the nature of or length of sentence to impose. Dr. Machi, PW4 in his report P3 form P. Exh.3 described the complainant’s injury. He said he had suffered a cut on the penile shat and the scrotum and would need surgery in future. He does not say the extent of the cut but says that degree of the assault was grievous harm. The complainant was left with an injury that required medical attention. No doubt it was a severe injury.

28. We note that the Appellant in his mitigation said he was a casual worker and had no wife or children. He did not give his age. We note from the evidence that the Appellant was a principal offender. He held PW1 as one of his accomplices cut PW1 inflicting grievous harm on him.

29. The 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4. 1 as follows:“Sentences are imposed to meet the following objectives: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 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. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5. Community protection: To protect the community by incapacitating the offender.6. Denunciation: To communicate the community’s condemnation of the criminal conduct.”

30. We have considered all the factors as above shown, the nature and degree of injury caused to the complainant, the medical intervention he will need in future, the Appellant’s role in the attack and the Appellant’s mitigation. Noting the objectives of sentencing as listed in the Judiciary Sentencing Guidelines, the excerpt of which is cited herein above, we find that the sentence of 30 years will not serve the said objectives. We believe that a much lower sentence will better serve the purpose of punishing the Appellant for what he did.

31. The orders therefore that commend themselves to us are as follows:1. The Appellant’s appeal against conviction fails.2. The appeal against sentence succeeds. We accordingly set aside the sentence of 30 years imprisonment and substitute it with a sentence of 15 years imprisonment from the date of sentencing by the trial court. For avoidance of doubt, the date of sentencing in the trial court was 7th September, 2017. 32. Those are our orders.

DATED AND DELIVERED AT MOMBASA THIS 23RD DAY OF JUNE 2023P. NYAMWEYA...................JUDGE OF APPEALJ. LESIIT...................JUDGE OF APPEALG.V. ODUNGA...................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR