A. INTRODUCTION
1. The Appellant, Benson Watta Wanambisi, was convicted after a full trial of the offence of causing grevious harm to Nancy Naliaka Watta contrary to Section 234 of the Penal Code. The particulars of the charge were that on 2nd August 2022 at Nalondo Police Station, the accused did grevious harm to Nancy Naliaka Watta.
2. On 29th August 2024, the trial court, found the Appellant guilty of the offence of grevious hard contrary to Section 234 of the Penal Code and after considering the probation report and noting that the Appellant and the complainant are members of the same family sentenced the Appellant to a fine of Kshs. 50,000/= and in default to serve 12 months imprisonment.
3. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 17th September 2024, raising the following grounds: that the learned Hon. Magistrate erred in fact and in law when he failed to consider the evidence of all the witnesses and only relied on the evidence of the a=complainant and her brother; that the learned Hon. Magistrate erred in fact and in law when he failed to consider the evidence of the police officers who were at the crime scene when the accused was attacked by the complainant and her brothers; that learned Hon. Magistrate erred in fact and in law when he failed to consider the Appellant’s defence despite the same being unchallenged by the prosecution; that the learned Hon. Magistrate erred in law and fact by failing to consider the evidence of the are assistant chief who was at the crime scene when the accused was attacked by the complainant and her brother; that the learned hon. Magistrate erred in law and in fact when he failed to evaluate all the evidence properly in determining the guilt and/or innocence of the Appellant; that the learned Hon. Magistrate erred in fact and in law in disregarding and misunderstanding the evidence of the police officers at the crime scene all of whom exonerated the Appellant; that the learned Hon. Magistrate erred in law and in fact by failing to consider that no proper and conclusive investigations were considered; that the learned Hon. Magistrate erred in law and in fact in finding that the Appellant inflicted injuries suffered by the complainant, PW1; that the learned Hon. Magistrate erred in law and in fact in finding that the evidence of PW1, PW2 and PW3 was truthful; and that the learned Hon. Magistrate erred in law and failed to observe section 169 of the Criminal Procedure Code
4. The Appellant urges this Court to allow the appeal, the judgement and the sentence be set aside and the Appellant be acquitted, the Appellant also seeks costs of the Appeal.
B. THE DUTY OF THIS COURT
5. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
6. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
7. This principle was reaffirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174, where the Court held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, that the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and that in doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
8. The Court of Appeal further clarified in David Njuguna Wairimu v Republic [2010] eKLR that the duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence, without overlooking the conclusions of the trial court; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence on the basis of the law, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
C. SUMMARY OF THE PROSECUTION EVIDENCE
9. PW1, the complainant, Nancy Naliaka Watta, testified that on 02/08/2022 she went to Nalondo Police Station to report that the Appellant had gone home with a group of people. She was with 3 others. She testified that she got out of her car and ran to the police station calling the OCS and she saw the Appellant’s vehicle parked there. She informed the OCS that the Appellant had a gun but she was not given audience.
10. She further testified that the Appellant tried to hit her and he missed. The Appellant went to his car but went back to the OCS’s office and the complainant followed him while making noise. When she got to the office, the Appellant picked a chair and hit her on the head twice and she fell down and lost consciousness. She had a cut on the head and ear. She got up and saw the accused with blood on is shirt. She asked one Samson to take her to hospital as she would bleed to death and was taken to Nalondo dispensary. She was it with a plastic chair. She identified the chair in court together with the treatment notes and the P3 form.
11. She testified that the doctor told her it was attempted murder. She was stitched and reported back to Nalondo Police Station and went to Bungoma District Hospital where she was treated. She testified that the Appellant is to be the administrator of the estate of their father and mother. The complainant stated that all these was as a result of the father’s estate.
12. On cross examination, she stated that the Appellant is the first born and there are three children between them. They have always had a good relationship. She was summoned to Kimilili Police Station over allegations of threats to kill. She was with Samson inside the office and as not asked to stay away from the Appellant. She did not see the Appellant get assaulted and saw the Appellant’s wife with a gun. The police did not secure the gun and she has had a good relationship with the wife of Samson, wife of Masinde and the wide of the Appellant. She confirmed that the Appellant hit her repeatedly and reported but the police did not do anything. She was given a P3 form and wrote her statement the same day and she did not trip and fall. She stated that the administrator of the estate is Samson Watta and the Appellant used to say it was him who administered the estate.
13. PW2, Samson Watta testified that on 02/08/2022 he was at his parents home with others and heard that the Appellant was on his way home and when he arrived, he took off his tie and coat and went after the complainant. He testified that two people came from the car who were armed, together with the Appellant’s wife who stood by the door. He testified that the Appellant was telling the people to shoot and they left. He also left to go to the police station to report and found the Appellant and his wife at the OCS office.
14. The OCS told everyone to sit but the Appellant declined and walked out saying that he will not talk to losers. He tried to block the Appellant from hiting the complainant but the Appellant hit the complainant with a chair. They then took the complainant to hospital and then to Nalondo police station.
15. On cross examination PW2 stated that he has had a good relationship with the Appellant and has lived together both in Kenya and the USA. He did not know the people who accompanied the Appellant. He did not see the Appellant with a gun and he had been told by the complainant that the Appellant was coming to fight her. He is the administrator of their father’s estate and not the Appellant. He further testified that he has never bribed any police officer in the case and he did not see the complainant struggling to hit the Appellant and fall,
16. He further testified that only the OCS was there when the Appellant hit the complainant and there were no other police officers. The Appellant hit the complainant with the plastic chair three time. He further testified that when he left the country he left his sutcase at the Appellant’s house and that there had been a lot of problems with the estate of their late father.
17. PW3, Gabriel Lukwito Chemiat testified that on 02/08/2023 at around 10:00am at the home of Mama Sofia Watta, he was taking tea with PE2 and others and he heard a vehicle coming to the compound and the Appellant came out of the vehicle and went to the kitchen. He did not go to the police station and did not witness the complainant being assaulted.
18. On cross examination, he testified that he was at home when the vehicle came being driven at high speed and he saw a gun which was black and a woman who had the gun and gave the gun to the Appellant, the woman was the wife to the Appellant. The Appellant had a lot of chicken. He did not go to the police station and did not see anyone being assaulted.
19. PW4, Dr. Ombogi Haron from Bungoma Referral Hospital, testfied that he had the P3form filled by his colleague Dr. Wanikina and had worked together for 6 years, he knew his handwriting and his signature. He confirmed that the P3 was for the complainant who came with a complaint of assault and on examination, head and neck were swollen. She had reeking eye and there was swelling on the left side of the face and measuring 3cm on the left side of the face.
20. He further testified that there was tenderness on the neck, the upper limbs were tender on the left extending to the clavicle, The injury was hours old and the object was a blunt object. Stitching of the wound was done and given antibiotics and pain killers and classified the injury as grevious harm, He produced the P3 form. On cross examination he testified that the injury to the eye is what lead to classification as grevious harm and the doctor depended on the history of the claimant.
21. PW5, Benjamin Buluma Ingasia, a clinician officer at Globan Home Care recalls that on 02/08/2022 was brought a patient who was bleeding. The patient was the complainant and had a cut wound on the right ear. He stitched the wound and covered the wound. He produced the treatment notes. On cross examination, he restated his qualifications and that the complainant did not tell him who had hurt her.
22. PW6, No. 108232 PC Will Kiplagat Kipkemboi of DCIO Bungoma Central testified that on 02/08/2022 he was at Nalondo Police Station and on reporting at 8:00am he found a vehicle number KBU 959V parked outside the Police Station and there were two clients in the office of the OCS. The two were the Appellant and his wife. They drove off and came back at 10:30am and went to the OCS office. Another vehicle came into the station with PW1, PW2 and one Johnson Welly and they went to the OCS office. The complainant stood at the door and he heard her telling the OCS to search the Appellant alleging that he had in his possession a gun.
23. The witness further testified that the complainant walked around the station taking photographs and video of the vehicle. There was an argument in the office of the OCS and the complainant asked him how he was working allowing people walking around the office with a weapon. He asked her to calm down and later saw the Appellant and his wife walk outside the office and leave. PW2 and Johnson came out and followed the Appellant and Johnson pushed the Appellant, the Appellant’s shirt was torn as he tried to free himself. He testified that PW3 picked a wooden chair and wanted to hit the Appellant but he intervened and prevented the attack. PW2 and Johnson chased the Appellant wo entered the office of the OCS and the witness and a colleague stopped PW2 and Johnson from entering the OCS office.
24. Outside, the Complainant wanted to attack the Appellant’s wife but he stopped her. PW2 and Johnson forced their way into the OCS office and there was fighting in the office and the Appellant hid under the table. He testified that the complainant stormed into the office trying to reach out to the Appellant but the complainant hit her head against the wooden shelved mounted on the wall and was bleeding. The fighting stopped and PW2 and Johnson took the complainant to a nearby hospital called Global clinic.
25. He further testified that they searched the vehicle alledged to be bearing the gun but did not find any firearm. The Appellant then left with his wife stating that he was going to seek treatment. The two parties later drove into the office at different times and went into the office of the OCS before leaving. He did not know what was discussed in the office.
26. On cross examination he confirmed that he was at the scene of crime and that the complainant hit her head on the shelf and was not hit by anyone. The complainant was accompanied by her two brothers and he is not the investigating officer so he did not investigate the incident. He was informed that there was a family dispute and that is why they were at the police station.
27. PW7, No. 82667 PC Edward Mulongo testified that he was the investigating officer in this case. He recalled that on 02/08/2022 he was assigned to investigate the case by the DCIO. The case was about malicious damage and creating disturbance. He was handed documents and exhibits including P3 form for the complainant, medical report and P3 for the Appellant and broken plastic chairs and the complainant’s clothes. He recorded 23 witness statements. He inquired from the chief of fire arms on allegations that the Appellant was in possession of a fire arm. After investigations he arrested one Isaac Hamisi Waswa but was later released under Section 52 of the National Police Service Act.
28. He further testified that the Appellant was not licensed a licensed firearm holder and the complainant had serious injuries. He produced 8 photographs of the Police station, plastic chairs, complainant’s bloodstained clothes and both P3forms. On cross examination he testified that he did not know the complainant and the OCS was present but is not a witness and he charged the Appellant after advise from the ODPP from the P3 form. He confirmed that the complainant had serious injuries and is a sister to the Appellant.
29. The Appellant was put on his defence and he called a total of five witnesses including himself. He opted to give sworn evidence after being explained his options under Section 211 of the CPC.
30. DW1, the Appellant testified that the complainant began sending him messages that he married in Kenya and had a baby boy. When the complainant went to the USA, she stated that she did not want his wife because she is from another tribe. She reported to the DCI Kisumu who promised to call and warn her. He further testified that he got calls from his employees that the complainant and his brother had were causing problems and told the workers to vacate the home. He told his workers to report to the police station. His siblings called the assistant chief and told him to hase away the complainant’s workers. He was called by his farm manager and he went to the station to see the OCS at Nalondo Police Station.
31. He testified that the OCS was very hostile to him. He requested the OCS to give him police officers to take them to his home and when they got home, his brother got hold of the assistant chief and the police told them to go back and he went back to Nalondo Police Station. The OCS told him to wait to record the matter but his siblings came and the complainant began to say that he had a gun. The complainant began to bang the table, he was pushed by his brother and he fell on the OCS. They began to assault him and another officer came and got hold of his brother and the complainant hit her head on the wall.
32. He was hit all over and when the complainant recovered, his brother took her to hospital. He also went to hospital and back to the police station where the OCS gave him 4 police officers to take to his home. He took the police officers back to Nalondo Polioce Station and filed a complaint. He further testified that he has gone to the head of the DCI at Kakamega and the DCIO requested for the file and the DCIO called the head of the ODPP in Kakamega and vide a letter dated 19/06/23 where the ODPP advised diversion and the case was taken by DCIO from OCS.
33. He testified that Mulongo called him to go to Chwele and record a statement but he was arrested at the station and was not told the reason of his arrest and was then brought to court to take plea. On cross examination he testified that he did not know where his sister got injured but later confirmed it was on the head and he did not hit her. He did not have issues with his father and he had left the business to him after his death and he constructed his house in 2016 after his father’s death.
34. He further testified that he inherited 100 acres from the father and all his brothers have their land and had filed succession in 2015. He is not delaying the case, he had another case of assault in Nalondo where the complainant was his step mother and he was not convicted.
35. He further stated that he did not know that people who deal in drugs are noted and he did not own a firearm and he found people at his home with weapons and they were assaulted by his siblings. He had some injury and obtained a P3 form and all his siblings assaulted him at the police station, when he went to his home, he had the armed police officers. He was acquitted if assault on his step mother.
36. DW2, Ann Njeri Mirara testified that the Appellant is her husband and recalled that on 02/08/2021the Appellant received a call from the OCS Nalondo Police Station to go to the station. He farm worker witnessed them being assaulted. They picked the assistant chief on their way and the OCS was not very friendly to them. One of the siblings to the Appellant instructed the OCS on phone to arrest the Appellant. The Appellant requested the OCS to give him police officers to take him home. When they got home the complainant started telling her to go back to Muranga and one of the brothers assaulted the assistant chief.
37. She testified that she never had a gun. They dropped the police officers on their way to Nalondo Police Station and the complainant began banging the table demanding that the Appellant’s car be searched as there was a gun or they would expose the OCS. The car was searched and confirmed there was no gun. The three siblings started to hit the Appellant who ran back to the OCS office and the complainant hit her head on the shelves and got injured and Johnson hit the Appellant on the face. He then went to Nalongo Hospital. She testified that the Appellant did not assault the complainant and they have been married for 8 years.
38. On cross examination she confirmed that PW1 and PW2 attacked the complainant and she was not physically assaulted. They were in a good relationship but the complainant began sending threats to the Appellant in June 2022. She believed she was hated by the family of the Appellant because she was Kikuyu and nto because she had children with the Appellant. She testified that the problems could also be related to the land. They are using the land as no body is using it.
39. DW3, Ezekiel Mironge testified that he is the assistant chief Chekulo Sub Location and on 02/08/22 he had heard some rumour that some of the brother to the Appellant had goons and they were planning to kill the farm manager. Johnson Webi called him and informed him to tell the farm manager. The Appellant called him and requested him to take him to Nalondo Police Station to report. The OCS gave them two police officers. The chief was there and went back to Nalondo Police Station after dropping off the police officers.
40. He further testified that at Nalondo Police Station the Appellant’s brother started to assault the brother and the complainant hot her head on the shelves. Also while at the home of the Appellant, he was assaulted by Webi and broke his phone. The Appellant did not assault the complainant. Her injuries were from hitting her head on the shelf.
41. On cross examination, he testified that he had been called by the DCI Chwele and recorded his statement and had not been bonded to give his statement. He came to court to testify. He stated that the Appellant’s brothers were using the chairs to assault the Appellant. He asserted that he saw the injuries on the complainant head and that they were sustained by hitting her head on the shelf. He neither saw the Appellant assault the complainant nor the Appellant fighting back and he tried to bring peace.
42. DW4, Isaac Hamisi testified that he is a manager working for the Appellant and recalled that on 30/7/22 he went to work on that day and the complainant and PW2 came and found hism there. They told him to tell the workers to come out and the complainant announced that she is the daughter of Watta and told everyone to leave as they had a family meeting. He called the Appellant and informed him of what had transpired and the Appellant told him to continue working. They began to threaten him and he left and went to Luhya Police Station to report the matter and went home. The assistant chief later told him to not go back home.
43. He further testified that on 31/08/2022 he went back to the station and he went and reported to the OCS who told him to call the Appellant and the Appellant spoke with the OCS. He says there are 600 chicken, they died as there was no one to take care of them, On 2/08/2022 the Appellant told him to go to Nalondo Police Station and the Appellant came with his wife and the assistant chief. The Appellant was given two police officers and when they got home, they found a group of people. The police then told the Appellant to leave and go back. The brother to the Appellant said they were going to close the gate so that they could kill him.
44. On cross examination he testified that the relationship between the Appellant and the complainant is not good and the Appellant siblings would call him and tell him they did not want a Kikuyu wife. PW1 and PW2 told him to leave the home. The Appellant’s siblings told the Appellant that they did not want him in that home. He did not see any weapon or anyone being assaulted and he left at around 9:00am.
45. DW5, Vincent Misiko Maheso testified that he used to work for the Appellant and on 31/07/2022 he go to the Appellant’s home and found the family at home. He was informed that they wanted to stop the ork. He fed the chicken and went back home. On 01/08/2022 he went to work but was informed they wanted to stop the work. He informed his supervisor who teld him to go to the polce station. He was not at home when the Appellant arrived. He went to Nalondo Police Station and the OCS informed him that he needed the Appellant to settle the matter. On 02/08/2022 he was called to go to the station and the OCS gave them 2 police officers to go home with.
46. At home they found the complainant and others chasing the Appellant and were going to kill him and the police did not do anything. The chicken died because they were not being fed. On cross examination he stated that the Appellant is his employer and the brothers don’t have houses on that land. The only houses are that of the Appellant and his mother. He had been told to go to the Police Station on 31/07/2022 and he got to work at 8:00am and left and 10:00am Webi is the one who said he was going to kill the Appellant. There was a vehicle but did not see who was inside. There was noise everywhere but could not tell the cause of the dispute.
47. DW6 No. 82215 corporal Edwin Nyongesa was stationed at Nalondo Police Station testified that the complainant reported to the police station that she was being threatened by the Appellant who is her brother. She again reported on 31/07/2022 that the Appellant had rented their house to someone who was rearing chicken in the house. He visited the home but did not see any chicken, On 02/08/2022 at 7:30am he arrived at the office and found the Appellant and his wife at the office of the OCS. The OCS advised the Appellant to go back home and the Appellant left but came back an hour later accompanied by the complainant, PW2 and Johnson who were in another car and came to the OCS office where he was.
48. He further testified that Samson Watta, the Appellant and his wife were in the office while the complainant stood at the door. Samson gave the details of the dispute while pointing at the Appellant. The Appellant got agitated and decided to leave but started exchanging words with the complainant and they all went inside. The three began fighting with the Appellant and the Appellant ran back to the OCS office and the OCS, himself and a police officer tried to restrain them but he was pushed out of the way and they entered the OCS office.
49. He further testified that the complainant was still at the door when the Appellant and Johnson were still fighting in the office and they broke the chairs and the complainant came into the office and tried to hit the Complainant but slipped and fell on the wooden shelf and got injured. Samson and Johnson assisted the complainant to go to hospital and later came back. They reported to the DCI where the matter was investigated. He did not see the complainant with anything. He stated that Johnson, Samson and the complainant were assaulting the Appellant and the Appellant did not assault the complainant.
50. On cross examination, the witness testified that he did not testify for the state and he was present at the scene. He was with the OCS, PC Ndirangu and PC Kakai and that was his work place. There was also the assistant chief, the complainant, the Appellant, Samson and Johnson and the Appellant’s wife. The Appellant came with his vehicle. He searched the Appellant’s vehicle and did not find a gun. The four siblings were fighting and he tried to separate them. They pushed him into the OCS office and the complainant hit her head on the shelf. He booked the case and issued a P3 form to the complainant and would not have issued it had the complainant not been assaulted. He was not aware of any bad blood among the siblings.
D. PARTIES' SUBMISSIONS
Appellant's Submissions
51. The Appellant canvassed his appeal by way of written submissions and raised several grounds of fact and law. In his submissions, the Appellant reiterated the evidence of PW6 and DW6 being police officers and testified that the complainant hit her head on the shelf and that is how she got injured. The same was confirmed on cross examination. In their witness statements as well as the proceedings on record. He submitted that the trial court disregarded testimony and evidence submitted in favour of the Appellant which clearly exonerated the Appellant from having committed the offence.
52. On the issue of Section 169 of the CPCs, the Appellant submitted that the judgement of the trial court failed to state the punishment to which the Appellant is sentenced and this was an incurable defect in the law. It was only upon mitigation and sentencing that the Appellant learnt that he would not be facing life in prison but paying a fine of Kshs. 50,000 which was a deliberate attempt not to imprison the Appellant but ensure he had a criminal record which would disqualify the Appellant from being an administrator in his father’s estate. The scheme succeeded and the Appellant was dropped from being an administrator of the estate. The Appellant relied on James Nyanamba vs. republic Criminal Appeal No, 121 of 1093 KLR to buttress his point.
53. He further stated that the omission cannot be cured by Section 382 of the CPC and urged this Court to allow the Appeal, quash the conviction and set aside the sentence.
Respondent’s submissions
54. In opposition of the Appeal, the state, the Respondent submitted that the complainant went to Nalondo police station to report the Appellant had gone to their home with a group of people and threatened them at home. That while at the office of the OCS, the Appellant took a chair and hit her on the head twice. question of plea taking, the Appellant submitted She lost consciousness and came to at the hospital. The complainant averred that she was assaulted by the Appellant and identified him and her testimony was corroborated by PW3 an eye witness and PW3 and PE4 a medical officer. The P3 indicated she suffered grevious harm.
55. The Respondent further submitted that the offence of grevious harm carries a life sentence and urged the court to enhance the sentence to life as the sentence imposed by the trial court was an unlawful sentence.
E. ANALYSIS AND DETERMINATION
56. Having carefully re-evaluated the entire record, including the evidence of the seven prosecution witnesses, the sworn evidence of the Appellant and his five witnesses, and the rival submissions of the parties, I am satisfied that this appeal turns on three issues for determination: first, whether the prosecution proved beyond reasonable doubt that the Appellant caused the injuries sustained by the complainant; second, whether the trial court properly evaluated the whole of the evidence, including that of the Appellant's wi
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1. The Appellant, Benson Watta Wanambisi, was convicted after a full trial of the offence of causing grevious harm to Nancy Naliaka Watta contrary to Section 234 of the Penal Code. The particulars of the charge were that on 2nd August 2022 at Nalondo Police Station, the accused did grevious harm to Nancy Naliaka Watta.
2. On 29th August 2024, the trial court, found the Appellant guilty of the offence of grevious hard contrary to Section 234 of the Penal Code and after considering the probation report and noting that the Appellant and the complainant are members of the same family sentenced the Appellant to a fine of Kshs. 50,000/= and in default to serve 12 months imprisonment.
3. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 17th September 2024, raising the following grounds: that the learned Hon. Magistrate erred in fact and in law when he failed to consider the evidence of all the witnesses and only relied on the evidence of the a=complainant and her brother; that the learned Hon. Magistrate erred in fact and in law when he failed to consider the evidence of the police officers who were at the crime scene when the accused was attacked by the complainant and her brothers; that learned Hon. Magistrate erred in fact and in law when he failed to consider the Appellant’s defence despite the same being unchallenged by the prosecution; that the learned Hon. Magistrate erred in law and fact by failing to consider the evidence of the are assistant chief who was at the crime scene when the accused was attacked by the complainant and her brother; that the learned hon. Magistrate erred in law and in fact when he failed to evaluate all the evidence properly in determining the guilt and/or innocence of the Appellant; that the learned Hon. Magistrate erred in fact and in law in disregarding and misunderstanding the evidence of the police officers at the crime scene all of whom exonerated the Appellant; that the learned Hon. Magistrate erred in law and in fact by failing to consider that no proper and conclusive investigations were considered; that the learned Hon. Magistrate erred in law and in fact in finding that the Appellant inflicted injuries suffered by the complainant, PW1; that the learned Hon. Magistrate erred in law and in fact in finding that the evidence of PW1, PW2 and PW3 was truthful; and that the learned Hon. Magistrate erred in law and failed to observe section 169 of the Criminal Procedure Code
4. The Appellant urges this Court to allow the appeal, the judgement and the sentence be set aside and the Appellant be acquitted, the Appellant also seeks costs of the Appeal.
B. THE DUTY OF THIS COURT
5. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
6. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
7. This principle was reaffirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174, where the Court held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, that the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and that in doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
8. The Court of Appeal further clarified in David Njuguna Wairimu v Republic [2010] eKLR that the duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence, without overlooking the conclusions of the trial court; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence on the basis of the law, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
C. SUMMARY OF THE PROSECUTION EVIDENCE
9. PW1, the complainant, Nancy Naliaka Watta, testified that on 02/08/2022 she went to Nalondo Police Station to report that the Appellant had gone home with a group of people. She was with 3 others. She testified that she got out of her car and ran to the police station calling the OCS and she saw the Appellant’s vehicle parked there. She informed the OCS that the Appellant had a gun but she was not given audience.
10. She further testified that the Appellant tried to hit her and he missed. The Appellant went to his car but went back to the OCS’s office and the complainant followed him while making noise. When she got to the office, the Appellant picked a chair and hit her on the head twice and she fell down and lost consciousness. She had a cut on the head and ear. She got up and saw the accused with blood on is shirt. She asked one Samson to take her to hospital as she would bleed to death and was taken to Nalondo dispensary. She was it with a plastic chair. She identified the chair in court together with the treatment notes and the P3 form.
11. She testified that the doctor told her it was attempted murder. She was stitched and reported back to Nalondo Police Station and went to Bungoma District Hospital where she was treated. She testified that the Appellant is to be the administrator of the estate of their father and mother. The complainant stated that all these was as a result of the father’s estate.
12. On cross examination, she stated that the Appellant is the first born and there are three children between them. They have always had a good relationship. She was summoned to Kimilili Police Station over allegations of threats to kill. She was with Samson inside the office and as not asked to stay away from the Appellant. She did not see the Appellant get assaulted and saw the Appellant’s wife with a gun. The police did not secure the gun and she has had a good relationship with the wife of Samson, wife of Masinde and the wide of the Appellant. She confirmed that the Appellant hit her repeatedly and reported but the police did not do anything. She was given a P3 form and wrote her statement the same day and she did not trip and fall. She stated that the administrator of the estate is Samson Watta and the Appellant used to say it was him who administered the estate.
13. PW2, Samson Watta testified that on 02/08/2022 he was at his parents home with others and heard that the Appellant was on his way home and when he arrived, he took off his tie and coat and went after the complainant. He testified that two people came from the car who were armed, together with the Appellant’s wife who stood by the door. He testified that the Appellant was telling the people to shoot and they left. He also left to go to the police station to report and found the Appellant and his wife at the OCS office.
14. The OCS told everyone to sit but the Appellant declined and walked out saying that he will not talk to losers. He tried to block the Appellant from hiting the complainant but the Appellant hit the complainant with a chair. They then took the complainant to hospital and then to Nalondo police station.
15. On cross examination PW2 stated that he has had a good relationship with the Appellant and has lived together both in Kenya and the USA. He did not know the people who accompanied the Appellant. He did not see the Appellant with a gun and he had been told by the complainant that the Appellant was coming to fight her. He is the administrator of their father’s estate and not the Appellant. He further testified that he has never bribed any police officer in the case and he did not see the complainant struggling to hit the Appellant and fall,
16. He further testified that only the OCS was there when the Appellant hit the complainant and there were no other police officers. The Appellant hit the complainant with the plastic chair three time. He further testified that when he left the country he left his sutcase at the Appellant’s house and that there had been a lot of problems with the estate of their late father.
17. PW3, Gabriel Lukwito Chemiat testified that on 02/08/2023 at around 10:00am at the home of Mama Sofia Watta, he was taking tea with PE2 and others and he heard a vehicle coming to the compound and the Appellant came out of the vehicle and went to the kitchen. He did not go to the police station and did not witness the complainant being assaulted.
18. On cross examination, he testified that he was at home when the vehicle came being driven at high speed and he saw a gun which was black and a woman who had the gun and gave the gun to the Appellant, the woman was the wife to the Appellant. The Appellant had a lot of chicken. He did not go to the police station and did not see anyone being assaulted.
19. PW4, Dr. Ombogi Haron from Bungoma Referral Hospital, testfied that he had the P3form filled by his colleague Dr. Wanikina and had worked together for 6 years, he knew his handwriting and his signature. He confirmed that the P3 was for the complainant who came with a complaint of assault and on examination, head and neck were swollen. She had reeking eye and there was swelling on the left side of the face and measuring 3cm on the left side of the face.
20. He further testified that there was tenderness on the neck, the upper limbs were tender on the left extending to the clavicle, The injury was hours old and the object was a blunt object. Stitching of the wound was done and given antibiotics and pain killers and classified the injury as grevious harm, He produced the P3 form. On cross examination he testified that the injury to the eye is what lead to classification as grevious harm and the doctor depended on the history of the claimant.
21. PW5, Benjamin Buluma Ingasia, a clinician officer at Globan Home Care recalls that on 02/08/2022 was brought a patient who was bleeding. The patient was the complainant and had a cut wound on the right ear. He stitched the wound and covered the wound. He produced the treatment notes. On cross examination, he restated his qualifications and that the complainant did not tell him who had hurt her.
22. PW6, No. 108232 PC Will Kiplagat Kipkemboi of DCIO Bungoma Central testified that on 02/08/2022 he was at Nalondo Police Station and on reporting at 8:00am he found a vehicle number KBU 959V parked outside the Police Station and there were two clients in the office of the OCS. The two were the Appellant and his wife. They drove off and came back at 10:30am and went to the OCS office. Another vehicle came into the station with PW1, PW2 and one Johnson Welly and they went to the OCS office. The complainant stood at the door and he heard her telling the OCS to search the Appellant alleging that he had in his possession a gun.
23. The witness further testified that the complainant walked around the station taking photographs and video of the vehicle. There was an argument in the office of the OCS and the complainant asked him how he was working allowing people walking around the office with a weapon. He asked her to calm down and later saw the Appellant and his wife walk outside the office and leave. PW2 and Johnson came out and followed the Appellant and Johnson pushed the Appellant, the Appellant’s shirt was torn as he tried to free himself. He testified that PW3 picked a wooden chair and wanted to hit the Appellant but he intervened and prevented the attack. PW2 and Johnson chased the Appellant wo entered the office of the OCS and the witness and a colleague stopped PW2 and Johnson from entering the OCS office.
24. Outside, the Complainant wanted to attack the Appellant’s wife but he stopped her. PW2 and Johnson forced their way into the OCS office and there was fighting in the office and the Appellant hid under the table. He testified that the complainant stormed into the office trying to reach out to the Appellant but the complainant hit her head against the wooden shelved mounted on the wall and was bleeding. The fighting stopped and PW2 and Johnson took the complainant to a nearby hospital called Global clinic.
25. He further testified that they searched the vehicle alledged to be bearing the gun but did not find any firearm. The Appellant then left with his wife stating that he was going to seek treatment. The two parties later drove into the office at different times and went into the office of the OCS before leaving. He did not know what was discussed in the office.
26. On cross examination he confirmed that he was at the scene of crime and that the complainant hit her head on the shelf and was not hit by anyone. The complainant was accompanied by her two brothers and he is not the investigating officer so he did not investigate the incident. He was informed that there was a family dispute and that is why they were at the police station.
27. PW7, No. 82667 PC Edward Mulongo testified that he was the investigating officer in this case. He recalled that on 02/08/2022 he was assigned to investigate the case by the DCIO. The case was about malicious damage and creating disturbance. He was handed documents and exhibits including P3 form for the complainant, medical report and P3 for the Appellant and broken plastic chairs and the complainant’s clothes. He recorded 23 witness statements. He inquired from the chief of fire arms on allegations that the Appellant was in possession of a fire arm. After investigations he arrested one Isaac Hamisi Waswa but was later released under Section 52 of the National Police Service Act.
28. He further testified that the Appellant was not licensed a licensed firearm holder and the complainant had serious injuries. He produced 8 photographs of the Police station, plastic chairs, complainant’s bloodstained clothes and both P3forms. On cross examination he testified that he did not know the complainant and the OCS was present but is not a witness and he charged the Appellant after advise from the ODPP from the P3 form. He confirmed that the complainant had serious injuries and is a sister to the Appellant.
29. The Appellant was put on his defence and he called a total of five witnesses including himself. He opted to give sworn evidence after being explained his options under Section 211 of the CPC.
30. DW1, the Appellant testified that the complainant began sending him messages that he married in Kenya and had a baby boy. When the complainant went to the USA, she stated that she did not want his wife because she is from another tribe. She reported to the DCI Kisumu who promised to call and warn her. He further testified that he got calls from his employees that the complainant and his brother had were causing problems and told the workers to vacate the home. He told his workers to report to the police station. His siblings called the assistant chief and told him to hase away the complainant’s workers. He was called by his farm manager and he went to the station to see the OCS at Nalondo Police Station.
31. He testified that the OCS was very hostile to him. He requested the OCS to give him police officers to take them to his home and when they got home, his brother got hold of the assistant chief and the police told them to go back and he went back to Nalondo Police Station. The OCS told him to wait to record the matter but his siblings came and the complainant began to say that he had a gun. The complainant began to bang the table, he was pushed by his brother and he fell on the OCS. They began to assault him and another officer came and got hold of his brother and the complainant hit her head on the wall.
32. He was hit all over and when the complainant recovered, his brother took her to hospital. He also went to hospital and back to the police station where the OCS gave him 4 police officers to take to his home. He took the police officers back to Nalondo Polioce Station and filed a complaint. He further testified that he has gone to the head of the DCI at Kakamega and the DCIO requested for the file and the DCIO called the head of the ODPP in Kakamega and vide a letter dated 19/06/23 where the ODPP advised diversion and the case was taken by DCIO from OCS.
33. He testified that Mulongo called him to go to Chwele and record a statement but he was arrested at the station and was not told the reason of his arrest and was then brought to court to take plea. On cross examination he testified that he did not know where his sister got injured but later confirmed it was on the head and he did not hit her. He did not have issues with his father and he had left the business to him after his death and he constructed his house in 2016 after his father’s death.
34. He further testified that he inherited 100 acres from the father and all his brothers have their land and had filed succession in 2015. He is not delaying the case, he had another case of assault in Nalondo where the complainant was his step mother and he was not convicted.
35. He further stated that he did not know that people who deal in drugs are noted and he did not own a firearm and he found people at his home with weapons and they were assaulted by his siblings. He had some injury and obtained a P3 form and all his siblings assaulted him at the police station, when he went to his home, he had the armed police officers. He was acquitted if assault on his step mother.
36. DW2, Ann Njeri Mirara testified that the Appellant is her husband and recalled that on 02/08/2021the Appellant received a call from the OCS Nalondo Police Station to go to the station. He farm worker witnessed them being assaulted. They picked the assistant chief on their way and the OCS was not very friendly to them. One of the siblings to the Appellant instructed the OCS on phone to arrest the Appellant. The Appellant requested the OCS to give him police officers to take him home. When they got home the complainant started telling her to go back to Muranga and one of the brothers assaulted the assistant chief.
37. She testified that she never had a gun. They dropped the police officers on their way to Nalondo Police Station and the complainant began banging the table demanding that the Appellant’s car be searched as there was a gun or they would expose the OCS. The car was searched and confirmed there was no gun. The three siblings started to hit the Appellant who ran back to the OCS office and the complainant hit her head on the shelves and got injured and Johnson hit the Appellant on the face. He then went to Nalongo Hospital. She testified that the Appellant did not assault the complainant and they have been married for 8 years.
38. On cross examination she confirmed that PW1 and PW2 attacked the complainant and she was not physically assaulted. They were in a good relationship but the complainant began sending threats to the Appellant in June 2022. She believed she was hated by the family of the Appellant because she was Kikuyu and nto because she had children with the Appellant. She testified that the problems could also be related to the land. They are using the land as no body is using it.
39. DW3, Ezekiel Mironge testified that he is the assistant chief Chekulo Sub Location and on 02/08/22 he had heard some rumour that some of the brother to the Appellant had goons and they were planning to kill the farm manager. Johnson Webi called him and informed him to tell the farm manager. The Appellant called him and requested him to take him to Nalondo Police Station to report. The OCS gave them two police officers. The chief was there and went back to Nalondo Police Station after dropping off the police officers.
40. He further testified that at Nalondo Police Station the Appellant’s brother started to assault the brother and the complainant hot her head on the shelves. Also while at the home of the Appellant, he was assaulted by Webi and broke his phone. The Appellant did not assault the complainant. Her injuries were from hitting her head on the shelf.
41. On cross examination, he testified that he had been called by the DCI Chwele and recorded his statement and had not been bonded to give his statement. He came to court to testify. He stated that the Appellant’s brothers were using the chairs to assault the Appellant. He asserted that he saw the injuries on the complainant head and that they were sustained by hitting her head on the shelf. He neither saw the Appellant assault the complainant nor the Appellant fighting back and he tried to bring peace.
42. DW4, Isaac Hamisi testified that he is a manager working for the Appellant and recalled that on 30/7/22 he went to work on that day and the complainant and PW2 came and found hism there. They told him to tell the workers to come out and the complainant announced that she is the daughter of Watta and told everyone to leave as they had a family meeting. He called the Appellant and informed him of what had transpired and the Appellant told him to continue working. They began to threaten him and he left and went to Luhya Police Station to report the matter and went home. The assistant chief later told him to not go back home.
43. He further testified that on 31/08/2022 he went back to the station and he went and reported to the OCS who told him to call the Appellant and the Appellant spoke with the OCS. He says there are 600 chicken, they died as there was no one to take care of them, On 2/08/2022 the Appellant told him to go to Nalondo Police Station and the Appellant came with his wife and the assistant chief. The Appellant was given two police officers and when they got home, they found a group of people. The police then told the Appellant to leave and go back. The brother to the Appellant said they were going to close the gate so that they could kill him.
44. On cross examination he testified that the relationship between the Appellant and the complainant is not good and the Appellant siblings would call him and tell him they did not want a Kikuyu wife. PW1 and PW2 told him to leave the home. The Appellant’s siblings told the Appellant that they did not want him in that home. He did not see any weapon or anyone being assaulted and he left at around 9:00am.
45. DW5, Vincent Misiko Maheso testified that he used to work for the Appellant and on 31/07/2022 he go to the Appellant’s home and found the family at home. He was informed that they wanted to stop the ork. He fed the chicken and went back home. On 01/08/2022 he went to work but was informed they wanted to stop the work. He informed his supervisor who teld him to go to the polce station. He was not at home when the Appellant arrived. He went to Nalondo Police Station and the OCS informed him that he needed the Appellant to settle the matter. On 02/08/2022 he was called to go to the station and the OCS gave them 2 police officers to go home with.
46. At home they found the complainant and others chasing the Appellant and were going to kill him and the police did not do anything. The chicken died because they were not being fed. On cross examination he stated that the Appellant is his employer and the brothers don’t have houses on that land. The only houses are that of the Appellant and his mother. He had been told to go to the Police Station on 31/07/2022 and he got to work at 8:00am and left and 10:00am Webi is the one who said he was going to kill the Appellant. There was a vehicle but did not see who was inside. There was noise everywhere but could not tell the cause of the dispute.
47. DW6 No. 82215 corporal Edwin Nyongesa was stationed at Nalondo Police Station testified that the complainant reported to the police station that she was being threatened by the Appellant who is her brother. She again reported on 31/07/2022 that the Appellant had rented their house to someone who was rearing chicken in the house. He visited the home but did not see any chicken, On 02/08/2022 at 7:30am he arrived at the office and found the Appellant and his wife at the office of the OCS. The OCS advised the Appellant to go back home and the Appellant left but came back an hour later accompanied by the complainant, PW2 and Johnson who were in another car and came to the OCS office where he was.
48. He further testified that Samson Watta, the Appellant and his wife were in the office while the complainant stood at the door. Samson gave the details of the dispute while pointing at the Appellant. The Appellant got agitated and decided to leave but started exchanging words with the complainant and they all went inside. The three began fighting with the Appellant and the Appellant ran back to the OCS office and the OCS, himself and a police officer tried to restrain them but he was pushed out of the way and they entered the OCS office.
49. He further testified that the complainant was still at the door when the Appellant and Johnson were still fighting in the office and they broke the chairs and the complainant came into the office and tried to hit the Complainant but slipped and fell on the wooden shelf and got injured. Samson and Johnson assisted the complainant to go to hospital and later came back. They reported to the DCI where the matter was investigated. He did not see the complainant with anything. He stated that Johnson, Samson and the complainant were assaulting the Appellant and the Appellant did not assault the complainant.
50. On cross examination, the witness testified that he did not testify for the state and he was present at the scene. He was with the OCS, PC Ndirangu and PC Kakai and that was his work place. There was also the assistant chief, the complainant, the Appellant, Samson and Johnson and the Appellant’s wife. The Appellant came with his vehicle. He searched the Appellant’s vehicle and did not find a gun. The four siblings were fighting and he tried to separate them. They pushed him into the OCS office and the complainant hit her head on the shelf. He booked the case and issued a P3 form to the complainant and would not have issued it had the complainant not been assaulted. He was not aware of any bad blood among the siblings.
D. PARTIES' SUBMISSIONS
Appellant's Submissions
51. The Appellant canvassed his appeal by way of written submissions and raised several grounds of fact and law. In his submissions, the Appellant reiterated the evidence of PW6 and DW6 being police officers and testified that the complainant hit her head on the shelf and that is how she got injured. The same was confirmed on cross examination. In their witness statements as well as the proceedings on record. He submitted that the trial court disregarded testimony and evidence submitted in favour of the Appellant which clearly exonerated the Appellant from having committed the offence.
52. On the issue of Section 169 of the CPCs, the Appellant submitted that the judgement of the trial court failed to state the punishment to which the Appellant is sentenced and this was an incurable defect in the law. It was only upon mitigation and sentencing that the Appellant learnt that he would not be facing life in prison but paying a fine of Kshs. 50,000 which was a deliberate attempt not to imprison the Appellant but ensure he had a criminal record which would disqualify the Appellant from being an administrator in his father’s estate. The scheme succeeded and the Appellant was dropped from being an administrator of the estate. The Appellant relied on James Nyanamba vs. republic Criminal Appeal No, 121 of 1093 KLR to buttress his point.
53. He further stated that the omission cannot be cured by Section 382 of the CPC and urged this Court to allow the Appeal, quash the conviction and set aside the sentence.
Respondent’s submissions
54. In opposition of the Appeal, the state, the Respondent submitted that the complainant went to Nalondo police station to report the Appellant had gone to their home with a group of people and threatened them at home. That while at the office of the OCS, the Appellant took a chair and hit her on the head twice. question of plea taking, the Appellant submitted She lost consciousness and came to at the hospital. The complainant averred that she was assaulted by the Appellant and identified him and her testimony was corroborated by PW3 an eye witness and PW3 and PE4 a medical officer. The P3 indicated she suffered grevious harm.
55. The Respondent further submitted that the offence of grevious harm carries a life sentence and urged the court to enhance the sentence to life as the sentence imposed by the trial court was an unlawful sentence.
E. ANALYSIS AND DETERMINATION
56. Having carefully re-evaluated the entire record, including the evidence of the seven prosecution witnesses, the sworn evidence of the Appellant and his five witnesses, and the rival submissions of the parties, I am satisfied that this appeal turns on three issues for determination: first, whether the prosecution proved beyond reasonable doubt that the Appellant caused the injuries sustained by the complainant; second, whether the trial court properly evaluated the whole of the evidence, including that of the Appellant's wi
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