[2023] KEHC 25102 (KLR)

Yugo v Republic (Criminal Appeal E010 of 2023) [2023] KEHC 25102 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25102 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Appeal E010 of 2023

WA Okwany, J

November 9, 2023

Between

Naom Kwamboka Yugo

Appellant

and

Republic

Respondent

(Being an Appeal against the Conviction and Sentence of Hon. M. C. Nyigei – PM Nyamira dated and delivered on 8th December 2022 in the original Nyamira CMC Criminal Case No. E098 of 202)

Judgment

1. The Appellant was charged with the offence of creating disturbance in a manner likely to cause a breach of peace contrary to Section 95 (1) (b) of the Penal Code. The particulars of the charge were that on the 14th and 19th day of January 2022 at Bomondo Village in Township Sub-location of Bonyamatuta Chache Location, within Nyamira South sub-County in Nyamira County, created disturbance by chasing away Joseph Amaroma’s workers from his parcel of land while armed with a panga.

2. The Applicant took plea before the trial court where she denied the charge. The matter proceeded for hearing in a trial where the Prosecution called a total of 3 witnesses.

The Prosecution/Respondent’s Case 3. The complainant Joseph Amuoma (PW1) testified that he bought the subject parcel of land from the Appellant’s husband one one Peter Ouru Nyaera on 6th October 2014. He produced a title deed, copy of official search, mutation forms and the sale agreement as P.Exh 1-4. He stated that Appellant would from time to time since the year 2018 interfere with his use of the subject by chasing away his workers while claiming that he had not purchased the. He reported the matter to the area chief who attempted to mediate over the dispute even though the Appellant did not respond to the said chief’s summons or heed his numerous warnings. He testified that the original land owner admitted before the chief that he had sold the land and promised to reign in on his wife over the matter.

4. PW1 further testified on 14th January 2022 and on 21st January 2022, the Appellant threatened his workers on the farm while armed with a panga and in the company of her son and her brother-in-law one Yongo. He made a report to the police who arrested the Appellant on 21st January 2022.

5. PW2. Christopher Akuom Ayot worked for PW1’s in the farm as a supervisor. He testified that the Appellant disrupted their work on the farm on several occasions and that in January 2022, the Appellant chased them away from the land and destroyed the fence that they had erected. He reported the incident to the police who, upon conducting their investigations, discovered that the nappier grass they had planted had been uprooted and dumped in a pit latrine.

6. PW3, No. 114229 PC George Kyalo, was the investigating and arresting officer. He testified that he, on 15th January 2022, received the report of creating a disturbance from the complainant PW1 who alleged that the Appellant had chased away his workers from his parcel of land. He commenced investigations and accompanied the complainant to the site to arrest the Appellant who ran away upon seeing them. PW3 testified that on 20th January 2022, the complainant again sent two workers to report that they had been chased away on diverse dates between 14th and 19th January 2022. PW3 stated that the complainant informed him that the disturbance began in 2018 and that he established that the Appellant’s husband sold the land to another person to raise school fees for his son who was going abroad.

7. At the close of the Prosecution’s case, the trial court found that the Appellant had a case to answer and placed her on her defence. She elected to give an unsworn testimony and called one (1) witness to support her case.

8. DW1, the Appellant, testified that she did not sell any land to the complainant and that she did not know how he acquired the land. She denied the allegation that she threatened and chased away the Complainant’s workers.

9. DW2, Yongo Ondieki, the Appellant’s husband, testified he did not know the complainant and that the land he resided on belonged to his father Onganga Yongo (deceased). He produced his father’s death certificate as D.Exh1. He testified that the land had been subdivided to create new numbers but he did not know who did the transfer for No. 7236 because his father was not alive in 2013. He produced the Green Card as D.Exh2. It testified that he lived on the land with his wife and that he had previously been arrested over allegations that he had sold the land after which he was forced to admit the sale after which the land was forcefully fenced. He stated that his wife did not create a disturbance and that the charges were falsified.

10. At the conclusion of the trial, the lower court found that the prosecution had proved its case to the required standards. The Appellant was subsequently convicted and sentenced to serve 3 years’ probation thereby triggering the instant appeal wherein she listed 19 grounds of appeal that can be summarized below as follows: -1. That the trial Magistrate erred in law and fact by failing to consider that PW1 Joseph Amuoma was not the complainant in this matter herein but Joseph Amoroma who never gave his evidence.2. That the trial Magistrate erred in law and fact in abdicating her mandate as an impartial and passive arbiter in her judgment by believing Joseph Amuoma without considering that his evidence did not prove that he saw the Appellant chasing away Joseph Amoroma from his parcel of land while armed with a panga and further, by being an active participant in the trial in filling the evidential gaps in favour of the Respondent.3. That the trial Magistrate erred in law and fact by having a predetermined mind in favour of the Respondent in considering PW1’s evidence which by nature was a civil/land issue without considering that PW1 never proved his allegation of breach of peace.4. That the trial Magistrate erred in law and fact by failing to find out in her judgment that PW1’s evidence was only hearsay, the said witness failed to prove that the Appellant breached peace on 14th and 19th January 2022 by chasing away the complainant from his parcel of land while armed with a panga.5. That the trial Magistrate erred in law and fact by failing to consider the evidence of PW3 who clearly stated that it was Joseph Aminga who reported the matter at the station on 15th January 2022 that the Appellant created disturbance by chasing away his workers from his parcel of land contrary to the charge sheet where Joseph Amoroma accused the Appellant that she breached peace by chasing him away from his parcel of land while armed with a panga.6. That the trial Magistrate erred in law and fact by failing to find out whether the charge sheet was defective before she delivered judgment in favour of the Respondent.7. That the trial Magistrate erred in law and fact by not finding out whether the witnesses’ evidence were corroborating before she delivered judgement.8. That the learned Magistrate erred in law and fact by failing to find out whether the judgment that she was going to deliver will be within the balance of probability among the parties herein. (sic)9. That the trial Magistrate erred in law and fact by failing to consider the defence evidence that they neither sold the land to the complainant nor subdivided the land in 2013 as alleged.10. That the trial Magistrate erred in law and fact by refusing to allow the Appellant to be represented by an advocate and not giving her the right of appeal.

11. The Appeal was canvassed by written submissions which I have considered.

The Appellant’s Submissions 12. The Appellant submitted that the charge sheet was fatally defective and ought to have led to the dismissal of the trial from the onset. That the subsequent judgment was also fatally defective coupled with the evidence of the Respondent’s witnesses. She relied on Section 135 of the Criminal Procedure Code and the case of Amos v DPP (1988) RTR, 198 DC and Mwaniki v R (2001) EA 158 CAK. She also cited the cases of Sigilani v R (2004) 2 KLR 480 and Issac Omambia v R [1995] eKLR in which the court held that a charge sheet should state an offence known in law and be crafted in a clear and unambiguous manner that enables an accused to know and understand the charges against them. The Appellant also cited the case of Peter Ngure Mwangi v R (2014) eKLR where the court explained that a charge would be defective if the evidence is at variance with the evidence adduced in support.

13. She argued that the matter was a land issue and not criminal in nature and that the Respondent failed to prove their case beyond reasonable doubt due to the glaring inconsistencies in their case, contrary to the legal standard in criminal cases as stipulated in the case of Miller v Minister of Pensions (1942) 2 All ER and Pius Arap Maina v R [2013] eKLR.

14. She also submitted that the evidence of PW1 was hearsay because he only reported what his workers told him which was that they were chased away by the Appellant but he himself never saw the Appellant committing the said acts. She relied on Section 63 of the Evidence Act which stated that oral evidence must be direct. It was her further submissions that the trial court failed to protect her right to legal representation. She urged the court to quash the judgment of the trial court.

The Respondent’s Submissions 15. Learned Prosecution Counsel Mr. Chirchir conceded to the Appeal and submitted that the evidence on record did not support the charge which indicated that it was the complainant who was chased by the Appellant from his land while the complainant testified that it was his workers who were chased away. Further, that the evidence of the Prosecution witnesses contradicted the charge in respect of the dates when the offence was committed and who the actual complainant was.

16. Counsel submitted that crucial and essential witnesses who were the complainant’s workers were never called to testify. That even though section 143 of the Evidence Act did not stipulate the number of witnesses to be presented by the Prosecution, they were under a mandate to make available all the necessary witnesses to establish the facts. Thus, that the court should draw an adverse inference in that regard as stated in the case of Bukenya and Others vs. Uganda (1972) EA 549 where it was held that the prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.

17. On sentence, Counsel submitted that Section 95 of the Penal Code stated that a person convicted of the offence was liable to imprisonment for six months and yet the trial court sentenced the Appellant to 3 years’ probation which was harsh and excessive. He urged the Court to allow the appeal and set aside the conviction and sentence.

The duty of the Court 18. It cannot be gainsaid that the legal duty of a first appellate court is to re-analyse, re-evaluate and assess the evidence adduced in the lower court and arrive at its own conclusion bearing in mind that it did not have the benefit of seeing the witnesses testify. (see the cases of Pandya v Republic [1957] EA 336, Shantilal M. Ruwala v Republic [1957] EA 570 & Peter vs. Sunday Post [1958] EA 424).

Analysis and Determination 19. I have carefully read the trial court Record, the Memorandum of Appeal and the submissions of the parties. The pertinent issues for my determination are as follows: -i.Whether the Charge was defectiveii.Whether the Offence was proven by the Prosecution to the required legal standard.iii.Whether the sentence meted was legal and appropriate.

i.Whether the Charge was defective 20. The Appellant faulted the trial court for convicting her on a charge that was defective and she based her argument on the fact that the particulars of the charge were not in tandem with the evidence of the Prosecution witnesses. She argued that the complainant in the charge sheet was Joseph Amaroma while the complainant who appeared to testify in court as PW1 was Joseph Amuoma.

21. The substantive law that underpins the issue of a proper charge is section 134 of the Criminal Procedure Code, Cap 75 which states as follows:-Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

22. Thus, a charge must indicate an offence well known in law and its particulars must be such that the evidence that will be adduced in court by the Prosecution will be in support of those particulars. The rationale of this legal provision is that a charge sheet goes to the root of a criminal trial and it is from the charge and its particulars that an accused knows and understands what crime they have been accused of in order to prepare for their defence. The effect of a defective charge is that it may occasion injustice to an accused person and feter the fairness of a trial.

23. The court of Appeal in Benard Ombuna v Republic [2019] eKLR provided guidance on how to determine whether a charge was defective when it held thus: -“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”

24. I have considered the facts of this case and found that, indeed the person named in the charge sheet as the complainant was ‘Joseph Amaroma’ while PW1 who testified at the complainant in the trial court stated that his name was ‘Joseph Amuoma’. Whether this is a question of typographical error or refers to two different persons is a question of mystery and one that this Court cannot delve into at this point.

25. The second defect in question was that the charge stated that the offence was committed on 14th and 19th January 2022 while the Prosecution witnesses testified that the offence occurred on several diverse dates from 2018. The question for my determination is whether these defects were fatal to the Prosecution’s case.

26. In addressing this, it is a well-established principle that, although a charge sheet may be defective, some defects are curable under section 382 of the Criminal Procedure Code which provides thus: -Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. It follows therefore that the court in determining whether a defect caused injustice has to have regard whether the objection should have been raised at an earlier stage in the proceedings. (Emphasis added).

27. The test is whether the defective charge occasioned a miscarriage of justice towards the accused person. In this case, it is clear that the Appellant was charged with the offence of creating disturbance. During the trial, she heard the direct evidence of the complainant PW1 who identified himself as Joseph Amuoma. She had the opportunity to cross-examine him and the other two witnesses who testified. Further, during the defence case, the Appellant herself testified that she had tried to explain to the complainant that she did not know how the land in question was sold and that when she chased him away, she did not do so with bad intentions. This evidence leads me to believe that the Appellant was clear in her mind throughout the trial of the charge she was facing, of who the complainant was and that the Prosecution evidence adduced in court related to the incident which occurred on PW1’s parcel of land where his workers were being chased away. She demonstrated clear comprehension throughout the trial and addressed the complainant competently during cross-examination which means she knew who he was and why he had accused her before the court. -She can now not allege that the discrepancy on the charge led her to be confused as to the nature and particulars of the charge she was facing.

28. Further to the above, regardless of the fact that the name on the charge sheet did not tally with that of PW1, it is my finding that the Appellant understood that PW1 was the complainant. This was demonstrated when she put up her own defence and stated that she did not have bad intentions when she chased the complainant away. It was sufficient therefore, that the particulars of the charge described the act of chasing away the complainant’s workers from the farm and in a way, by stating in her defence that she chased away the complainant and his people but not with bad intentions, she acknowledged that she understood that the charge she faced was premised on the said incident committed against PW1 whether his name was Amaroma or Amuoma. Therefore, the defect with respect to the name of the complainant on the charge sheet, was not fatal as there was no prejudice occasioned to the Appellant in that regard.

29. In arriving at the above conclusion, I anchor my position on this issue on section 137 of the Criminal Procedure Code which states as follows:-137. Rules for the framing of charges and informationsThe following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code—(d)Description of persons.—the description or designation in a charge or information of the accused person, or of another person to whom reference is made therein, shall be reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given as is reasonably practicable in the circumstances, or the person may be described as “a person unknown”;

30. On the second defect, the Appellant and the Respondent both argued that the testimonies of the Prosecution witnesses referred to incidents of creating disturbance on several diverse dates in 2018, 2021 and 2022 while the charge sheet specified that the offence only occurred on 14th and 19th January 2022.

31. My analysis of the above contention is that the Prosecution evidence did not in any way contradict the particulars on the charge. In fact, the only omission in the charge sheet was that it failed to include the other dates that the Appellant had allegedly committed the offence. This however does not negate that she was brought to court to answer charges relating to the offence committed on 14th and 19th January 2022. It would have been fatally defective if the Prosecution evidence did not mention any of the dates indicated on the charge. However, in this case, that evidence pointed to the dates on the charge sheet and even brought to light that the offence had also been allegedly committed on several other occasions.

32. Thus, there was no prejudice occasioned to the Appellant because she was in court to answer charges to an offence which she allegedly committed on 14th and 19th January 2022. I therefore find that the defects in the charge sheet were curable under section 382 of the Criminal Procedure Code and that no prejudice was occasioned on the Appellant in putting up her defence.

ii.Whether the Offence was proven by the Prosecution to the required standard. 33. The offence of creating disturbance in a manner likely to cause a breach of peace is premised on section 95 (1) (b) of the Penal Code which states as follows: -95. Threatening breach of the peace or violence(1)Any person who—a.uses obscene, abusive or insulting language, to his employer or to any person placed in authority over him by his employer, in such a manner as is likely to cause a breach of the peace; orb.brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace, is guilty of a misdemeanour and is liable to imprisonment for six months.

34. In order for this charge to stand, the Prosecution must prove that there was a brawl and not only so, that such a brawl was likely to cause a breach of peace. These ingredients were aptly stated in Mule vs. Republic (1983) KLR 246 where Porter Ag. J. held thus: -“1)The offence of creating a disturbance likely to cause a breach of the peace constitutes incitement to physical violence and the breach of the peace contemplating physical violence…..2)It is not enough to constitute the offence of creating disturbance likely to cause a breach of the peace to show that the accused merely created a disturbance. That disturbance should have been likely to cause a breach of peace. Peace would, for instance refer to the right of wananchi to go about their daily activities without interference. The actions of the appellant interfered with people’s activities and therefore caused a breach of peace.”

35. The facts of this case demonstrate that the Appellant was against the complainant taking up peaceful possession of the parcel in question and she admitted to not knowing how, when and who sold the land to the complainant. It was the evidence of PW1 that every time his workers went to work on the farm, the Appellant would chase them away. On one occasion on 14th January 2022, he testified that he was working on the farm and when he left, the Appellant came and chased the workers away. Evidently, the complainant obtained the information of the workers being chased away from the workers themselves but he himself did not see or experience the Appellant’s behaviour. To this extent, I agree with the Appellant’s submissions that whatever the complainant testified to in court was hearsay.

36. I have however also considered the evidence of PW2 who stated that in January 2022, he was present in the farm when the Appellant came with some of her family members at around 9. 00 a.m. just when they were about to commence their work and told them not to carry out any work, prompting them to leave out of the fury of the Appellant and her people. He testified that he later reported the matter to the police. It was also his testimony that the Appellant had on several occasions disrupted their work on the farm and threatened to undress herself in the presence of the workers, prompting them to run away.

37. The above evidence demonstrates that the Appellant did not want the complainant or his workers to come onto the land and farm on it and she disrupted their activities on several occasions. PW2’s evidence corroborates the assertions made by the complainant in his testimony, particularly because he was on the farm supervising the workers when the incidents occurred on several occasions. It is clear that the Appellant created disturbance on numerous occasions.

38. The Prosecution evidence must also prove that there was a breach of peace. The facts demonstrate that the Appellant threatened to undress herself in the presence of the workers on several occasions, that on one occasion, she furiously sent them away from the farm and that the fence was found leaning sideways and the nappier grass had been uprooted. All these demonstrate a breach of peace which connotes a hindrance to the complainant going about his usual activities on his farm. Further, the fact that the Appellant was summoned by the chief and police on several occasions means that she was aware that she was interfering with the complainant’s peaceful and quiet enjoyment of his parcel. It would also be ridiculous for PW2 to proceed to report the matter to the police if there was no breach of peace arising from their forced expulsion from the land.

39. To buttress the above position, I noted that during the Appellant’s defence, she did not deny chasing away the workers. She merely stated that she chased them but not out of bad intention. It would therefore be improper for this Court to overlook these facts and conclude that the ingredient of the offence of breaching peace was not proven. [See Mule vs. Republic (supra) on what constitutes a breach of peace]

40. Indeed, this Court is alive to the principles enunciated by Lord Denning in Miller v Minister of Pensions 1942 A.C. in explaining the standard of proof in criminal cases thus: -“It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted forceful possibilities to deflect the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

41. It means that it is the Prosecution which bears the burden of proof and that burden must be fulfilled beyond reasonable doubt. This burden is never transferred to an accused person. In light of this principle, it would be detrimental for an accused person to put up a defence which fortifies the Prosecution’s case as opposed to casting doubt as was the case presently. By the Appellant’s own admission that she chased the complainant’s workers away means that the offence was proven to the required threshold.

42. On the issue of crucial witnesses as raised by the Appellant and Respondent, I find guidance in the case of Oloro and Daltanyi v Reginam [1956] 23 EACA 49 where it was held thus: -“Prosecution have a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.”

43. The above precedent connotes that the Prosecution have a duty to call whatever number of witnesses to prove their case. It is however not necessary to call a superfluity of witnesses as proscribed by section 143 of the Evidence Act which provides as follows: -No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.

44. Similarly, in Keter v Republic [2007] EA 135 it was held as follows: -“… the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond reasonable doubt.”

45. Having the above in mind, it is my finding that it was not necessary to call the workers who were allegedly chased by the Appellant to testify in court. PW2 who was their supervisor and was present on several occasions when the Appellant chased them away was capable of adducing evidence in this regard which I have found to be sufficient in proving the charge. For this reason, I must respectfully disagree with the Respondent’s submission that the complainant’s workers were crucial witnesses and failure to call them ought to be construed adversely to their case.

46. In the premise, I find that the Prosecution evidence proved the case to the required legal standard and hereby uphold the conviction by the trial court.

iii.Whether The Sentence Meted Was Legal And Appropriate. 47. Lastly, I consider the sentence meted by the trial court. From section 95 (1) (b) cited previously in this decision, this offence is considered a misdemeanour and attracts a punishment of 6 months imprisonment. The trial court sentenced the Appellant to serve 3 years’ probation.

48. It is trite that an appellate court will only interfere with a sentence imposed by a trial court in situations circumscribed in law. It is not enough that an appellate court would have passed a different sentence. What the court must establish is whether the trial court acted on some wrong principles, or overlooked some material factor or passed an illegal sentence or passed a sentence that was manifestly harsh and excessive. (See Ogalo s / o Owora v R [1954] 24 EACA 70. )

49. I have considered the nature of sentence imposed by the trial court. The learned trial magistrate stated at sentencing that the probation Report indicated that the Accused was suitable for a non-custodial sentence and it was on this basis that she passed the said sentence.

50. The terms “is liable to” which stipulate the punishment for the offence in question were explained by the Court of Appeal in M K v Republic [2015] eKLR where it was held thus: -“19. What does “shall be liable” mean in law" The Court of Appeal for East Africa in the case of Opoya vs. Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James vs Young 27 Ch. D. at p. 655 where North J. said:“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.We consider such to be the correct approach to the construction of the words “shall be liable on conviction to suffer death: especially when contrasted with the words of s. 184 which are “shall be sentenced to death”.

51. It follows then from the above explanation that the maximum sentence for this offence under section 95 (1) (b) is six (6) months imprisonment. This means that the trial court was free to depart from the stipulated maximum sentence upon considering the circumstances of the case, in particular, the pre-sentence report which recommended a non-custodial sentence. However, even such a non-custodial sentence ought not to be more than the period of 6 months stated in the Act.

52. It is therefore my finding that the trial court erred in passing a non-custodial sentence that was to run for a period longer than what was stipulated in the Act. The said sentence was illegal and unfounded in law and ought to be disturbed.

53. In conclusion, this Appeal partially succeeds. I uphold the conviction by the trial court but set aside the sentence of 3 years’ probation. Guided by the same Pre-Sentence Report, I direct that the Appellant serves a probationary sentence of 6 months. The period of sentence already spent on serving the probation order shall be taken into consideration in accordance with Section 333 (2) of the Criminal Procedure Code.

54. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 9TH DAY OF NOVEMBER 2023W. A. OKWANYJUDGE