The Appellant was charged with the offence of causing grievous bodily harm contrary to Section 234 of the Penal Code in Count 1
The particulars were that on 1st Day of May 2021 at Ranen forestbloc, South Kadero Lwala Sub-Location, in Awendo Sub-County within Migori County in the Republic of Kenya the Appellant wilfully and unlawfully did grievous harm to Arthur Nyanchoka Ndigwa.
In the 2nd Count the Appellant was charged with the offence of felling forest produce without authority contrary to Section 64(1) (a) as read with Section 64(2) of the Forest Conservation and Management Act No 34 of 2016.
The particulars were that on 1st Day of May 2021 at Ranen forestbloc, South Kadero Lwala Sub-Location, in Awendo Sub-County within Migori County in the Republic of Kenya the Appellant unlawfully fell forest produce namely 5 cypress tress each valued at Kshs.12,500/= the property of Kenya Forest Services without permit from the Chief Conservator of the Forest Conservation of the said Act.
In the 3rd Count the Appellant was charged with the offence of removing forest produce without authority contrary to Section 64(1) (a) as read with Section 64(2) of the Forest Consevation and Management Act No 34 of 2016.
The particulars were that on 1st Day of May 2021 at Ranen forestbloc, South Kadero Lwala Sub-Location, in Awendo Sub-County within Migori County in the Republic of Kenya the Appellant unlawfully fell forest produce namely 5 cypress tress each valued at Kshs.12,500/= and converting them into logs and removing the said forest produce the property of Kenya Forest Services without permit from the Chief Conservator of the Forest Conservation of the said Act.
The prosecution case was that PW1 and 2 who are Forest Rangers were on patrol duties on 1st May 2022 when they heard the sound of trees being cut in Ranen forest. That they proceeded to the direction of the sound using separate routes. That when PW1 approached, he saw 3 people cutting trees and when he tried to arrest one of them, the eldest of the three whom he identified as the Appellant herein ran towards him wielding a panga and that when he tried to run he slipped and fell and the Appellant aimed the panga to his head but he used his hand to shield himself. That the panga caught and cut his left thumb. The second suspect cut him on the right hand. That the 3rd panga cut his left foot. PW1 said he raised alarm and his colleague PW2 responded and the suspects ran away. That PW2 carried out first Aid and he was taken to hospital where he was admitted for 10 days and surgery carried out to correct the left thumb which had fallen off and the cut on the leg. The Complainant said that as a result of the cut on his leg he was limping.
PW2 testified that when on patrol with PW1 they heard sound of pangas cutting trees in the forest and they approached the scene from different routes. That before he could get to the scene he heard PW1 screaming and when he rushed to the direction of the screams he found he was being accosted with pangas That the assailants ran on seeing him and he did first aid and then took PW1 to the hospital where he was admitted. PW2 said that he saw the Appellant in the forest.
In cross examination, PW2 said that he saw the Appellant running with a panga. He said he did not run after the Appellant because his colleague was injured and he wanted to attend to him. He said that 1st May 202 was a Sunday but he did not know if the Appellant went to church. PW2 said he found the Appellant assaulting PW1 and that when PW1 scattered the group a young boy ran past him. PW2 said that the incident took place at noon and he saw the Appellant very well.
PW3 Stanslaus Sirembe testified that he worked at Migori Forest Station. That on 1st May 2022 the Complainant and PW2 found people in Ranen forest cutting trees and the one of them assaulted PW1. That PW1 and 2 called for assistance and they took PW1 to Lenmek Hospital and later referred to Nyangena Hospital in Kisii. That they later engaged the help of Ranen Police Station to arrest the Appellant. He said that Ezekiel had seen the Appellant. That upon his arrest, they found logs of cypress trees and two pangas in his house. He said that cypress trees produce gum which was found on the pangas that were recovered from the Appellant’s house. He said that the gum proved the pangas were used to cut the cypress trees. He said the other two boys confirmed that it is the Appellant who assaulted PW1. PW3 said he was part of the team that arrested the Appellant.
In cross examination PW3 said that they arrested the Appellant at mid night on 3rd May 2022 from a rental house. He said that they did not assault the Appellant when he was arrested. He said that the Appellant’s co-accused could confirm if the pangas belonged to the Appellant.
PW3 also said that they found the pangas and logs in the house where the Appellant was arrested and that they had not fabricated him. He said he was not present at the scene where the offence was committed and he did not witness what happened. He said they arrested the Appellant together with Reagan and Stephen.
PW4 Judith Kemuma a nurse at Lenmek Hospital testified that she attended to the Complainant on 1st May 2022 and referred him to Oasis Hospital. She said that the Complainant had wounds on his left hand leg. She produced letter and receipt as exhibits.2 and 3.
In cross examination, PW3 said that when PW1 was taken to hospital he was semi- conscious.
PW5.Lilian Nyaboke Clinical Officer at Rongo Sub-County Hospital produced P3 form in respect to PW1’s injuries as Ex P1. She said that when she examined PW1 he had a cut tendon on the left hand. That the Complainant also had a deep cut wound on the arm involving a tendon. That there was also a cut on the left leg. She said the injuries were inflicted using a sharp object.
PW5 said that the Complainant was transfused and taken to theatre for repair of the torn tendons and a wire was placed on the fractured hand. She assessed degree of injuries as grievous harm.
PW6 Silas Omoi Ndege an Orthopedic Surgeon in Kisii region testified that he attended to PW1 who had history of assault. He said the Complainant had a cut on his left hand, left foot and he was bleeding. He said the left thumb was hanging and it could not be supported. He said the Complainant also had a cut on top of the right hand, the ring finger, the tendon was cut and he had a fracture.PW6 also observed a deep cut on the sole of the foot. PW6 said that they operated on the Complainant three times. He said the damages and he cannot use his left hand. PW6 produced the operation notes as Ex P5 and 6. He also produced treatment Notes as Ep 4.
PW7 P. C. Reuben Kite from Ranen Police Station testified that on 3rd May 2022 he was assigned the duty to investigate the case of grievous harm where PW1 had been assaulted by 3 assailants.
He said the three suspects namely Stephen Omondi, Reagan Ochieng and Eddy Bush were arrested. He said investigations established that the three suspects were illegally harvesting forest produce and when they were intercepted the Appellant assaulted the Complainant by cutting him on the hands, and leg. That PW1 was rescued by a colleague who rushed him to hospital and the Appellant took off. That the three were later arrested but the minors’s case was diverted.
PW7 said that he did not effect arrest. He said that the suspects were arrested by aid of members of the community and he recorded statements. He said that he visited scene and took photographs of the scene as well as logs recovered from the Appellant’s home. He said that two pangas were also recovered from under the Appellant’s bed and they were also photographed.
He said the two minors told them that it was the Appellant who assaulted the Complainant. He produced the two pangas as Ex P 9 (a) & (b). He also produced the photographs of the logs allegedly recovered and the certificate as Ex P 7 (a), (b) and (c) and Ex P 10.
In cross examination, PW7 said he did not arrest the Appellant. He said the pangas were recovered besides the Appellant’s bed. He said the officers who arrested the Appellant did not take photographs of the pangas and logs upon recovery from his house/ home. He said he did not know if the house from which the Appellant was arrested belonged to him. He said the pangas recovered had been cleaned.
PW7 said that there were many cases reported to police concerning the Appellant. He said that the logs were not produced in court and that photographs were taken and produced. He said that photographs of the Appellant were not taken when the logs were recovered.
When the prosecution closed its case, the Appellant was placed on defence and he gave sworn statement and said that he was a student and that on 3rd May 2022 he was arrested at 11.00pm
From the house where he was sleeping. He said he heard a loud bang and people who entered the house arrested him and took him to Ranen Police Station where he was beaten and later charged before court. He said he did not commit the offence and he was not aware of the case before court. He said he was arrested together with Reagan and Stephen.
The Trial Magistrate upon consideration of the evidence of 7 prosecution witnesses and the Appellants testimony on defence came to the conclusion that the Appellant was guilty of the three counts and he was convicted. Before sentence it was established that the Appellant was serving 3 years imprisonment for the offence of assault in Rongo Criminal Case No E160 of 2022 and sentenced to serve 12 years imprisonment for count 1 and 1 year imprisonment for counts 2 and 3. The sentences were ordered to run concurrently.
Aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide Petition of Appeal filed on3rd August 2023 on the following grounds:
1. THAT the Learned Trial Magistrate erred in not finding that the charge was not proved beyond all reasonable doubt.
2. THAT the whole trial was marred with irregularities and it is not hidden that he was fixed in this matter
3. THAT based on the foregoing the sentence meted is illegal in its entirety.
Reasons wherefore the Appellant prayed that this appeal be allowed, conviction quashed and sentence set aside or any other order deemed fit to grant.
The appeal was heard by way of written submissions.
The Appellant’s submissions dated 2nd August 2024 were duly filed and are to the effect that he was not accorded fair trial as provided by Article 25 and 47 of the Constitution which is cannot be limited.
The Appellant submitted that upon being arraigned in court just before plea taking the court had explained to him his rights to legal representation of his own choice as well as his entitlement to application to Legal Aid Board for assistance if so desired. That Mr. Ochieng Advocate was appointed as the legal counsel and he acknowledged receipt of the documents from prosecution but this was the start of the job which also marked its end — an aborted deal. The Appellant lamented that he was left with the duty of representing himself throughout the trial, the defence and the determination of the case.
He submitted that no information is captured in the proceedings explaining the exit of the defence counsel and why the court became silent on it despite the fact that it knew very well the accused person was barely a high school student at the commission and had no knowledge about law and being left on his own to counter the prosecution witnesses was going to be fatal and a great miscarriage of justice.
He submitted that this was repugnant to the demands of Article 50 of the Constitution (2) which provides
"Every accused person has the right to fair trial, which include the right to .......(g) to choose, and be represented by an advocate and be informed of this right promptly...(h) to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of his right promptly".
The Appellant submitted that he did not drop the advocate that was appointed for him and the court’s silence was prejudicial to him. He cited the case of Kenga Hisa vs Republic (2020) eKLR which quoted with approval the case of Pett vs Greyland Racing Association (1968) 2 ALL ER 545 in which it was held that
"it is not every man who has the ability to defend himself on his own. He cannot bring out the points on his own favor or the weakness of the other side. he may be tongue tied, nervous or confused or wanting in intelligence. He cannot examine or cross examine witnesses. We see it every day. A magistrate says to a man; "you can ask any question you like". Whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help if someone to speak for him; and who is better than lawyer who has been trained for this task".
The Appellant submitted that the court failed in its own duty to ensure the vulnerable accused person was well represented and went ahead to both convict him and sentence him from a process which was inconsistent with the law and also the only remedy to such error would be to benefit the Appellant with an acquittal.
The Appellant also submitted that the other injustice he went through is the fact that he had earlier been presented vide CRC No. 159. He questioned why the charges in the 2 different files followed each other and concluded that it was suspicious. He wondered why the two files were not consolidated so that he is tried concurrently so he is not prejudiced. Is it that the court and the prosecution had collaborated to push the appellant to the wall? He urged the court to find that these actions as unfair and worth quashing and grant the Appellant a benefit of liberty.
The Appellant also submitted that the charges against him were not proved beyond all reasonable doubt.
The Appellant further submitted that the prosecution did not prove beyond reasonable doubt that he committed the offences charged. He questioned how he could have single handedly felled and removed logs worth Kshs 61,500.00 and removed the said forest produce without a permit from the Chief Conservator of the forest conservation of the said Act.
A cypress log valued at Kshs. 12, 500.00 isn't just a small piece of log. There is even no possibility that such a log can be lifted by one, two or even three people, distance to where it is to be ferried to notwithstanding. And now that they were five, how were they ferried out of the conservancy if the rangers already had a tip of it was not a process to take ten minutes to accomplish. It required time and the accused (now) the Appellant must have had a proper means of transport to move the logs out of the forest. He questioned how it was possible to fell and remove the logs from the forest. He said the prosecution did not produce a single photo showing all the five logs in the scene at home. The photo showing a forest area in which the felling occurred and a photo showing a sample of a log in the same forest system and the other photos which could result from photo shopping could be no proof enough. Why was the accused not photographed beside the logs to confirm they were his and within his compound? This would have been evidence enough to incriminate the Appellant.
The Appellant also submitted that it was claimed that the minors had been arrested by the aid of the community who ought to have been vital witnesses in settling this issue. He submitted that if the minors claimed that they were not responsible for the assault, who then did they say was responsible? No information points to the Appellant. Again, despite them being minors, their evidence would have well guided the court by providing relevant information and shedding light in this case and their absence vitiated the whole spectrum of this case as WEAK and UNRELIABLE. OR it is because the accused was found with two pangas beside his bed that led to these orchestrations?
The Appellant cited the holding in RICKY GANDA vs the STATES (15) and in R vs LIFCHUS CANADA (1977) and Section 107 of the Evidence Act to support his position that the prosecution did not prove its case beyond reasonable doubt.
He also faulted the prosecution for failing to assist the court rightly in arriving at a just decision. He said the court shifted the burden to the him to prove his innocence by failing to act on its powers under section 150 of the Criminal Procedure Code Cap 75 Laws of Kenya for the two mentioned boys and the responsible members of the community for there would have been no better witness than the independent eye witness. The distance from the forest to the Appellant's home must never be ignored to inform the court on how possible it was for him to transport from the forest the five logs even after a whistle had been blown to his home.
Regarding evidence in the P3 Form; the Appellant said the brief details of alleged offence were; "he alleged to have been assaulted by physically known person to him by use of a panga and sustained serious injuries”
He said that physically known person — this is only about the physique. Thus anyone of such a physique could be in trouble and this is the implied fate of the Appellant and is proof enough why the prosecution failed to avail any other independent eye witness including the children.
That on the General Medical history (Including details relevant to the offence) he was assaulted by a person he can identify on 1.05.2022 at 12.00 pm..
That by a person he can identify he could only rely on identification. The person was not known to him in any way. And so the question goes; The Appellant questioned how he was identified without an identification parade being conducted. That, there was no criteria used to ascertain that he was the culpable criminal? That this on its own was a miscarriage of justice as the court acted on assumptions.
On the sentence meted the Appellant submitted that sentencing is a judicial process which must be acted on within the legal frame works and that the power to exercise judicial discretion in sentencing must follow and be guided by the same suit. That the assessment of culpability will be based on evidence of the crime provided through the testimony where a trial has been conducted, or, where a plea is entered, through the prosecution summary facts. Aggravating and mitigating features surrounding the offence may be advanced by the prosecution and the accused persons (or his or her representative) "Sentencing Policy Guidelines par.5.4.2 and also the issues would be:
- Did the accused person's age or maturity factor into the offence?
- Did the accused person have a limited awareness or understanding of the offence?
The Appellant submitted that he was then a very young person; "a school boy" and he had very limited awareness of the offence if any because its circumstances do not in any way demand a conviction let alone the sentence. Do members of the community around such conservancies know the difference a bush and a forest? And if yes, how much information do even the learned have as concerns the conservancies as concerns either the management or conservation? Very limited.
It is also understandable on what grounds and merits the Appellant had been convicted vide HCCR No.E159 of 2022 and whether the file was No. 160 of 2022 for seemingly they must have been of the same transaction and hence ought to have been consolidated and the sentences to run concurrently for the interest of justice. It is thus prejudicial for the prosecution to have presented him as one who had previous records and serving a sentence granting room for such heavy penalties which now either need to be quashed or completely reduced to very minimal forms pursuant to Article 50(2)(p) of the Constitution,
" every accused person has the right to a fair trial, which includes a right to ....(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”
The Appellant submitted that these are purely retributive and deterrent sentences and go against the objectives of rehabilitation and restorative justice: promoting a sense of responsibility through the offenders contribution towards meeting the complaints or community’s needs.
He cited the case of R. vs Paul Murima Mbatia (2021) quoting from CJ Emeritus Willy Mutunga in the Sentencing Policy Guidelines as follows; "…. .the sentencing process.....it should also infuse restorative justice values and champion the national value of inclusivity by promoting involvement through the use of non-custodial sentence in suitable cases. "And this is one of such suitable cases.
The Appellant argued that the issues he had raised were pertinent and sufficient and substantial enough and so fundamental to result in allowing the appeal.
The Respondent Counsel filed submissions dated 22nd October 2024 which was to the effect that the prosecution proved that the Appellant intentionally caused grievous harm to the Complainant who sustained permanent injury to his thumb which was chopped off and he had to go through corrective surgery.
It was further submitted that the Appellant inflicted the injuries on the Complainant to resist arrest when found unlawfully felling trees in the forest.
The Respondent submitted that the evidence of the 7 witnesses placed the Appellant at the scene and investigations established that he was the one who inflicted the grievous injuries on the Appellant. It was further submitted that it was established the Appellant was not a first offender and the sentence passed was appropriate.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion. The Court must bear in mind that it did not see or hear the witnesses and should therefore make due allowance for that fact.
The classic statement of that duty remains the decision in Okeno v Republic [1972] EA 32. The first appellate court must itself weigh conflicting evidence and draw its own conclusions, subject to the qualification that it should give due allowance for the advantage enjoyed by the trial court in seeing and hearing the witnesses.
This court has accordingly considered the entire evidence placed before the trial court, the Appellant's defence, the grounds of appeal and the rival submissions. and the following issues arise for determination:-
a. Whether the prosecution proved beyond reasonable doubt that the Appellant was the person who assaulted PW1 and occasioned him grievous harm;
b. Whether the prosecution proved beyond reasonable doubt the forest-related offences in Counts II and III and, in particular, whether the evidence of the alleged recovery of the pangas and forest produce sufficiently connected the Appellant to those offences;
c. Whether the Appellant was accorded a fair trial, including his constitutional right to legal representation, and whether the failure to call the two minors who were allegedly material witnesses occasioned a miscarriage of justice; and
d. Whether the convictions and sentences were safe and lawful and, consequently, what orders should issue on the appeal.
On whether the Appellant was positively and safely identified as the assailant, there is little doubt that the prosecution proved that PW1 suffered serious, indeed grievous, injuries. PW4 attended to PW1 shortly after the incident. PW5, the Clinical Officer, examined him and documented injuries including a cut tendon to the left hand, a deep cut wound involving a tendon and a cut to the left leg. She classified the injuries as grievous harm.
PW6, an orthopaedic surgeon, gave even more detailed evidence. He testified that PW1 had a cut on the left hand and left foot, that the left thumb was hanging and could not be supported, and that there was a cut on the right hand involving the ring finger, a severed tendon and a fracture. He further testified that the Complainant underwent three operations and was left unable to use his left hand. The medical evidence was consistent with PW1's account that he was attacked with a panga and sustained severe injuries. I therefore find that the prosecution proved beyond reasonable doubt that PW1 suffered grievous harm.
That conclusion, however, does not resolve the appeal. The prosecution was also required to prove that the Appellant was the person who unlawfully inflicted those injuries.
Whether the Appellant was safely identified, PW1 testified that while on patrol with PW2 they heard the sound of trees being cut. They approached the area using different routes. PW1 stated that he saw three persons cutting trees and, when he attempted to arrest one of them, the eldest, whom he identified as the Appellant, ran towards him wielding a panga. According to PW1, he slipped and fell and the Appellant aimed the panga at his head. PW1 raised his hand in an attempt to protect himself and the panga cut his left thumb. PW2 arrived after hearing PW1 scream. He testified that he saw the Appellant running with a panga and that he saw him very well because the incident occurred at about noon. On the face of it, the circumstances under which PW1 claimed to have seen the Appellant were favourable. The incident occurred in daylight and the alleged assailant was said to have been at close range. There is also evidence from PW2 that he saw the Appellant running away with a panga. The question is whether that evidence, considered together with the remainder of the prosecution evidence, was sufficient to eliminate reasonable doubt. The first difficulty is that the record as presented to this Court does not satisfactorily establish whether PW1 knew the Appellant before the incident. If PW1 knew the Appellant beforehand, the evidence would properly be considered as one of recognition. If he did not know him, the Court would have to scrutinize the circumstances of identification as identification of a stranger. The Appellant was arrested at 11.00pm in the night when sleeping in a house which PW3 said belonged to him and from where 2 pangas and logs were allegedly recovered. He was arrested together with two other younger boys who were diverted. According to PW3 and 7 the arrest was done with assistance of the community. The prosecution did not conduct an identification parade. I do not accept, as an absolute proposition, that failure to conduct an identification parade is automatically fatal. Where a witness already knows the accused, an identification parade ordinarily adds little. However, where the witness did not previously know the accused, and identification is disputed, the absence of an identification parade becomes a factor which the Court must consider together with the other circumstances.
PW2 arrived after hearing PW1 scream. His evidence therefore does not independently establish the initial attack. He saw the Appellant running with a panga. His evidence is corroborative to some extent but does not itself establish that the Appellant was the person who cut PW1. The prosecution therefore substantially depended upon PW1's evidence regarding the identity of his attacker. The Court must consequently examine whether there was other reliable evidence connecting the Appellant to the assault.
PW3 stated that the two other boys who were arrested confirmed that it was the Appellant who assaulted PW1. PW7 similarly testified that the two minors told the police that it was the Appellant who assaulted PW1. Those two minors were not called as witnesses. This evidence presents a significant problem. The statements allegedly made by the minors to PW3 and PW7 were not direct evidence of what the minors themselves saw and heard. To the extent that the prosecution relied upon what the minors allegedly told the witnesses to prove the truth of the assertion that the Appellant assaulted PW1, the evidence was hearsay unless brought within an applicable exception. The prosecution cannot ordinarily prove the truth of an allegation by calling another person to testify that a person who is not called as a witness made that allegation. It is particularly worrying that the two persons allegedly involved in the incident and who were said to have identified the Appellant were available, yet were not called. The court is mindful that the prosecution is not required to call a particular number of witnesses and that failure to call every possible witness does not automatically invalidate a conviction. However, the significance of the two minors in this case went beyond that of peripheral witnesses. The prosecution itself attributed to them evidence implicating the Appellant. If the prosecution intended to rely on their evidence as corroboration of PW1's identification, the proper course would ordinarily have been to call them, subject to the applicable safeguards governing evidence from children.
This court therefore find that the alleged statements of the minors could not safely be treated as substantive corroborative evidence against the Appellant.
There was also the evidence of the recovered pangas. PW3 and PW7 testified that two pangas were recovered from the house where the Appellant was arrested. The pangas were produced in evidence as exhibits. There was no evidence that either panga was subjected to forensic examination. No blood, DNA, fingerprint or other forensic evidence was produced connecting either panga to PW1. Indeed, PW7 testified that the pangas had been cleaned. The assertion by PW3 that cypress gum was found on the pangas may have some relevance to the forest offences, but it does not establish that either panga was used to cut PW1. More importantly, PW7 conceded that he did not know whether the house from which the pangas were recovered belonged to the Appellant. The Court
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The particulars were that on 1st Day of May 2021 at Ranen forestbloc, South Kadero Lwala Sub-Location, in Awendo Sub-County within Migori County in the Republic of Kenya the Appellant wilfully and unlawfully did grievous harm to Arthur Nyanchoka Ndigwa.
In the 2nd Count the Appellant was charged with the offence of felling forest produce without authority contrary to Section 64(1) (a) as read with Section 64(2) of the Forest Conservation and Management Act No 34 of 2016.
The particulars were that on 1st Day of May 2021 at Ranen forestbloc, South Kadero Lwala Sub-Location, in Awendo Sub-County within Migori County in the Republic of Kenya the Appellant unlawfully fell forest produce namely 5 cypress tress each valued at Kshs.12,500/= the property of Kenya Forest Services without permit from the Chief Conservator of the Forest Conservation of the said Act.
In the 3rd Count the Appellant was charged with the offence of removing forest produce without authority contrary to Section 64(1) (a) as read with Section 64(2) of the Forest Consevation and Management Act No 34 of 2016.
The particulars were that on 1st Day of May 2021 at Ranen forestbloc, South Kadero Lwala Sub-Location, in Awendo Sub-County within Migori County in the Republic of Kenya the Appellant unlawfully fell forest produce namely 5 cypress tress each valued at Kshs.12,500/= and converting them into logs and removing the said forest produce the property of Kenya Forest Services without permit from the Chief Conservator of the Forest Conservation of the said Act.
The prosecution case was that PW1 and 2 who are Forest Rangers were on patrol duties on 1st May 2022 when they heard the sound of trees being cut in Ranen forest. That they proceeded to the direction of the sound using separate routes. That when PW1 approached, he saw 3 people cutting trees and when he tried to arrest one of them, the eldest of the three whom he identified as the Appellant herein ran towards him wielding a panga and that when he tried to run he slipped and fell and the Appellant aimed the panga to his head but he used his hand to shield himself. That the panga caught and cut his left thumb. The second suspect cut him on the right hand. That the 3rd panga cut his left foot. PW1 said he raised alarm and his colleague PW2 responded and the suspects ran away. That PW2 carried out first Aid and he was taken to hospital where he was admitted for 10 days and surgery carried out to correct the left thumb which had fallen off and the cut on the leg. The Complainant said that as a result of the cut on his leg he was limping.
PW2 testified that when on patrol with PW1 they heard sound of pangas cutting trees in the forest and they approached the scene from different routes. That before he could get to the scene he heard PW1 screaming and when he rushed to the direction of the screams he found he was being accosted with pangas That the assailants ran on seeing him and he did first aid and then took PW1 to the hospital where he was admitted. PW2 said that he saw the Appellant in the forest.
In cross examination, PW2 said that he saw the Appellant running with a panga. He said he did not run after the Appellant because his colleague was injured and he wanted to attend to him. He said that 1st May 202 was a Sunday but he did not know if the Appellant went to church. PW2 said he found the Appellant assaulting PW1 and that when PW1 scattered the group a young boy ran past him. PW2 said that the incident took place at noon and he saw the Appellant very well.
PW3 Stanslaus Sirembe testified that he worked at Migori Forest Station. That on 1st May 2022 the Complainant and PW2 found people in Ranen forest cutting trees and the one of them assaulted PW1. That PW1 and 2 called for assistance and they took PW1 to Lenmek Hospital and later referred to Nyangena Hospital in Kisii. That they later engaged the help of Ranen Police Station to arrest the Appellant. He said that Ezekiel had seen the Appellant. That upon his arrest, they found logs of cypress trees and two pangas in his house. He said that cypress trees produce gum which was found on the pangas that were recovered from the Appellant’s house. He said that the gum proved the pangas were used to cut the cypress trees. He said the other two boys confirmed that it is the Appellant who assaulted PW1. PW3 said he was part of the team that arrested the Appellant.
In cross examination PW3 said that they arrested the Appellant at mid night on 3rd May 2022 from a rental house. He said that they did not assault the Appellant when he was arrested. He said that the Appellant’s co-accused could confirm if the pangas belonged to the Appellant.
PW3 also said that they found the pangas and logs in the house where the Appellant was arrested and that they had not fabricated him. He said he was not present at the scene where the offence was committed and he did not witness what happened. He said they arrested the Appellant together with Reagan and Stephen.
PW4 Judith Kemuma a nurse at Lenmek Hospital testified that she attended to the Complainant on 1st May 2022 and referred him to Oasis Hospital. She said that the Complainant had wounds on his left hand leg. She produced letter and receipt as exhibits.2 and 3.
In cross examination, PW3 said that when PW1 was taken to hospital he was semi- conscious.
PW5.Lilian Nyaboke Clinical Officer at Rongo Sub-County Hospital produced P3 form in respect to PW1’s injuries as Ex P1. She said that when she examined PW1 he had a cut tendon on the left hand. That the Complainant also had a deep cut wound on the arm involving a tendon. That there was also a cut on the left leg. She said the injuries were inflicted using a sharp object.
PW5 said that the Complainant was transfused and taken to theatre for repair of the torn tendons and a wire was placed on the fractured hand. She assessed degree of injuries as grievous harm.
PW6 Silas Omoi Ndege an Orthopedic Surgeon in Kisii region testified that he attended to PW1 who had history of assault. He said the Complainant had a cut on his left hand, left foot and he was bleeding. He said the left thumb was hanging and it could not be supported. He said the Complainant also had a cut on top of the right hand, the ring finger, the tendon was cut and he had a fracture.PW6 also observed a deep cut on the sole of the foot. PW6 said that they operated on the Complainant three times. He said the damages and he cannot use his left hand. PW6 produced the operation notes as Ex P5 and 6. He also produced treatment Notes as Ep 4.
PW7 P. C. Reuben Kite from Ranen Police Station testified that on 3rd May 2022 he was assigned the duty to investigate the case of grievous harm where PW1 had been assaulted by 3 assailants.
He said the three suspects namely Stephen Omondi, Reagan Ochieng and Eddy Bush were arrested. He said investigations established that the three suspects were illegally harvesting forest produce and when they were intercepted the Appellant assaulted the Complainant by cutting him on the hands, and leg. That PW1 was rescued by a colleague who rushed him to hospital and the Appellant took off. That the three were later arrested but the minors’s case was diverted.
PW7 said that he did not effect arrest. He said that the suspects were arrested by aid of members of the community and he recorded statements. He said that he visited scene and took photographs of the scene as well as logs recovered from the Appellant’s home. He said that two pangas were also recovered from under the Appellant’s bed and they were also photographed.
He said the two minors told them that it was the Appellant who assaulted the Complainant. He produced the two pangas as Ex P 9 (a) & (b). He also produced the photographs of the logs allegedly recovered and the certificate as Ex P 7 (a), (b) and (c) and Ex P 10.
In cross examination, PW7 said he did not arrest the Appellant. He said the pangas were recovered besides the Appellant’s bed. He said the officers who arrested the Appellant did not take photographs of the pangas and logs upon recovery from his house/ home. He said he did not know if the house from which the Appellant was arrested belonged to him. He said the pangas recovered had been cleaned.
PW7 said that there were many cases reported to police concerning the Appellant. He said that the logs were not produced in court and that photographs were taken and produced. He said that photographs of the Appellant were not taken when the logs were recovered.
When the prosecution closed its case, the Appellant was placed on defence and he gave sworn statement and said that he was a student and that on 3rd May 2022 he was arrested at 11.00pm
From the house where he was sleeping. He said he heard a loud bang and people who entered the house arrested him and took him to Ranen Police Station where he was beaten and later charged before court. He said he did not commit the offence and he was not aware of the case before court. He said he was arrested together with Reagan and Stephen.
The Trial Magistrate upon consideration of the evidence of 7 prosecution witnesses and the Appellants testimony on defence came to the conclusion that the Appellant was guilty of the three counts and he was convicted. Before sentence it was established that the Appellant was serving 3 years imprisonment for the offence of assault in Rongo Criminal Case No E160 of 2022 and sentenced to serve 12 years imprisonment for count 1 and 1 year imprisonment for counts 2 and 3. The sentences were ordered to run concurrently.
Aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide Petition of Appeal filed on3rd August 2023 on the following grounds:
1. THAT the Learned Trial Magistrate erred in not finding that the charge was not proved beyond all reasonable doubt.
2. THAT the whole trial was marred with irregularities and it is not hidden that he was fixed in this matter
3. THAT based on the foregoing the sentence meted is illegal in its entirety.
Reasons wherefore the Appellant prayed that this appeal be allowed, conviction quashed and sentence set aside or any other order deemed fit to grant.
The appeal was heard by way of written submissions.
The Appellant’s submissions dated 2nd August 2024 were duly filed and are to the effect that he was not accorded fair trial as provided by Article 25 and 47 of the Constitution which is cannot be limited.
The Appellant submitted that upon being arraigned in court just before plea taking the court had explained to him his rights to legal representation of his own choice as well as his entitlement to application to Legal Aid Board for assistance if so desired. That Mr. Ochieng Advocate was appointed as the legal counsel and he acknowledged receipt of the documents from prosecution but this was the start of the job which also marked its end — an aborted deal. The Appellant lamented that he was left with the duty of representing himself throughout the trial, the defence and the determination of the case.
He submitted that no information is captured in the proceedings explaining the exit of the defence counsel and why the court became silent on it despite the fact that it knew very well the accused person was barely a high school student at the commission and had no knowledge about law and being left on his own to counter the prosecution witnesses was going to be fatal and a great miscarriage of justice.
He submitted that this was repugnant to the demands of Article 50 of the Constitution (2) which provides
"Every accused person has the right to fair trial, which include the right to .......(g) to choose, and be represented by an advocate and be informed of this right promptly...(h) to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of his right promptly".
The Appellant submitted that he did not drop the advocate that was appointed for him and the court’s silence was prejudicial to him. He cited the case of Kenga Hisa vs Republic (2020) eKLR which quoted with approval the case of Pett vs Greyland Racing Association (1968) 2 ALL ER 545 in which it was held that
"it is not every man who has the ability to defend himself on his own. He cannot bring out the points on his own favor or the weakness of the other side. he may be tongue tied, nervous or confused or wanting in intelligence. He cannot examine or cross examine witnesses. We see it every day. A magistrate says to a man; "you can ask any question you like". Whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help if someone to speak for him; and who is better than lawyer who has been trained for this task".
The Appellant submitted that the court failed in its own duty to ensure the vulnerable accused person was well represented and went ahead to both convict him and sentence him from a process which was inconsistent with the law and also the only remedy to such error would be to benefit the Appellant with an acquittal.
The Appellant also submitted that the other injustice he went through is the fact that he had earlier been presented vide CRC No. 159. He questioned why the charges in the 2 different files followed each other and concluded that it was suspicious. He wondered why the two files were not consolidated so that he is tried concurrently so he is not prejudiced. Is it that the court and the prosecution had collaborated to push the appellant to the wall? He urged the court to find that these actions as unfair and worth quashing and grant the Appellant a benefit of liberty.
The Appellant also submitted that the charges against him were not proved beyond all reasonable doubt.
The Appellant further submitted that the prosecution did not prove beyond reasonable doubt that he committed the offences charged. He questioned how he could have single handedly felled and removed logs worth Kshs 61,500.00 and removed the said forest produce without a permit from the Chief Conservator of the forest conservation of the said Act.
A cypress log valued at Kshs. 12, 500.00 isn't just a small piece of log. There is even no possibility that such a log can be lifted by one, two or even three people, distance to where it is to be ferried to notwithstanding. And now that they were five, how were they ferried out of the conservancy if the rangers already had a tip of it was not a process to take ten minutes to accomplish. It required time and the accused (now) the Appellant must have had a proper means of transport to move the logs out of the forest. He questioned how it was possible to fell and remove the logs from the forest. He said the prosecution did not produce a single photo showing all the five logs in the scene at home. The photo showing a forest area in which the felling occurred and a photo showing a sample of a log in the same forest system and the other photos which could result from photo shopping could be no proof enough. Why was the accused not photographed beside the logs to confirm they were his and within his compound? This would have been evidence enough to incriminate the Appellant.
The Appellant also submitted that it was claimed that the minors had been arrested by the aid of the community who ought to have been vital witnesses in settling this issue. He submitted that if the minors claimed that they were not responsible for the assault, who then did they say was responsible? No information points to the Appellant. Again, despite them being minors, their evidence would have well guided the court by providing relevant information and shedding light in this case and their absence vitiated the whole spectrum of this case as WEAK and UNRELIABLE. OR it is because the accused was found with two pangas beside his bed that led to these orchestrations?
The Appellant cited the holding in RICKY GANDA vs the STATES (15) and in R vs LIFCHUS CANADA (1977) and Section 107 of the Evidence Act to support his position that the prosecution did not prove its case beyond reasonable doubt.
He also faulted the prosecution for failing to assist the court rightly in arriving at a just decision. He said the court shifted the burden to the him to prove his innocence by failing to act on its powers under section 150 of the Criminal Procedure Code Cap 75 Laws of Kenya for the two mentioned boys and the responsible members of the community for there would have been no better witness than the independent eye witness. The distance from the forest to the Appellant's home must never be ignored to inform the court on how possible it was for him to transport from the forest the five logs even after a whistle had been blown to his home.
Regarding evidence in the P3 Form; the Appellant said the brief details of alleged offence were; "he alleged to have been assaulted by physically known person to him by use of a panga and sustained serious injuries”
He said that physically known person — this is only about the physique. Thus anyone of such a physique could be in trouble and this is the implied fate of the Appellant and is proof enough why the prosecution failed to avail any other independent eye witness including the children.
That on the General Medical history (Including details relevant to the offence) he was assaulted by a person he can identify on 1.05.2022 at 12.00 pm..
That by a person he can identify he could only rely on identification. The person was not known to him in any way. And so the question goes; The Appellant questioned how he was identified without an identification parade being conducted. That, there was no criteria used to ascertain that he was the culpable criminal? That this on its own was a miscarriage of justice as the court acted on assumptions.
On the sentence meted the Appellant submitted that sentencing is a judicial process which must be acted on within the legal frame works and that the power to exercise judicial discretion in sentencing must follow and be guided by the same suit. That the assessment of culpability will be based on evidence of the crime provided through the testimony where a trial has been conducted, or, where a plea is entered, through the prosecution summary facts. Aggravating and mitigating features surrounding the offence may be advanced by the prosecution and the accused persons (or his or her representative) "Sentencing Policy Guidelines par.5.4.2 and also the issues would be:
- Did the accused person's age or maturity factor into the offence?
- Did the accused person have a limited awareness or understanding of the offence?
The Appellant submitted that he was then a very young person; "a school boy" and he had very limited awareness of the offence if any because its circumstances do not in any way demand a conviction let alone the sentence. Do members of the community around such conservancies know the difference a bush and a forest? And if yes, how much information do even the learned have as concerns the conservancies as concerns either the management or conservation? Very limited.
It is also understandable on what grounds and merits the Appellant had been convicted vide HCCR No.E159 of 2022 and whether the file was No. 160 of 2022 for seemingly they must have been of the same transaction and hence ought to have been consolidated and the sentences to run concurrently for the interest of justice. It is thus prejudicial for the prosecution to have presented him as one who had previous records and serving a sentence granting room for such heavy penalties which now either need to be quashed or completely reduced to very minimal forms pursuant to Article 50(2)(p) of the Constitution,
" every accused person has the right to a fair trial, which includes a right to ....(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”
The Appellant submitted that these are purely retributive and deterrent sentences and go against the objectives of rehabilitation and restorative justice: promoting a sense of responsibility through the offenders contribution towards meeting the complaints or community’s needs.
He cited the case of R. vs Paul Murima Mbatia (2021) quoting from CJ Emeritus Willy Mutunga in the Sentencing Policy Guidelines as follows; "…. .the sentencing process.....it should also infuse restorative justice values and champion the national value of inclusivity by promoting involvement through the use of non-custodial sentence in suitable cases. "And this is one of such suitable cases.
The Appellant argued that the issues he had raised were pertinent and sufficient and substantial enough and so fundamental to result in allowing the appeal.
The Respondent Counsel filed submissions dated 22nd October 2024 which was to the effect that the prosecution proved that the Appellant intentionally caused grievous harm to the Complainant who sustained permanent injury to his thumb which was chopped off and he had to go through corrective surgery.
It was further submitted that the Appellant inflicted the injuries on the Complainant to resist arrest when found unlawfully felling trees in the forest.
The Respondent submitted that the evidence of the 7 witnesses placed the Appellant at the scene and investigations established that he was the one who inflicted the grievous injuries on the Appellant. It was further submitted that it was established the Appellant was not a first offender and the sentence passed was appropriate.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion. The Court must bear in mind that it did not see or hear the witnesses and should therefore make due allowance for that fact.
The classic statement of that duty remains the decision in Okeno v Republic [1972] EA 32. The first appellate court must itself weigh conflicting evidence and draw its own conclusions, subject to the qualification that it should give due allowance for the advantage enjoyed by the trial court in seeing and hearing the witnesses.
This court has accordingly considered the entire evidence placed before the trial court, the Appellant's defence, the grounds of appeal and the rival submissions. and the following issues arise for determination:-
a. Whether the prosecution proved beyond reasonable doubt that the Appellant was the person who assaulted PW1 and occasioned him grievous harm;
b. Whether the prosecution proved beyond reasonable doubt the forest-related offences in Counts II and III and, in particular, whether the evidence of the alleged recovery of the pangas and forest produce sufficiently connected the Appellant to those offences;
c. Whether the Appellant was accorded a fair trial, including his constitutional right to legal representation, and whether the failure to call the two minors who were allegedly material witnesses occasioned a miscarriage of justice; and
d. Whether the convictions and sentences were safe and lawful and, consequently, what orders should issue on the appeal.
On whether the Appellant was positively and safely identified as the assailant, there is little doubt that the prosecution proved that PW1 suffered serious, indeed grievous, injuries. PW4 attended to PW1 shortly after the incident. PW5, the Clinical Officer, examined him and documented injuries including a cut tendon to the left hand, a deep cut wound involving a tendon and a cut to the left leg. She classified the injuries as grievous harm.
PW6, an orthopaedic surgeon, gave even more detailed evidence. He testified that PW1 had a cut on the left hand and left foot, that the left thumb was hanging and could not be supported, and that there was a cut on the right hand involving the ring finger, a severed tendon and a fracture. He further testified that the Complainant underwent three operations and was left unable to use his left hand. The medical evidence was consistent with PW1's account that he was attacked with a panga and sustained severe injuries. I therefore find that the prosecution proved beyond reasonable doubt that PW1 suffered grievous harm.
That conclusion, however, does not resolve the appeal. The prosecution was also required to prove that the Appellant was the person who unlawfully inflicted those injuries.
Whether the Appellant was safely identified, PW1 testified that while on patrol with PW2 they heard the sound of trees being cut. They approached the area using different routes. PW1 stated that he saw three persons cutting trees and, when he attempted to arrest one of them, the eldest, whom he identified as the Appellant, ran towards him wielding a panga. According to PW1, he slipped and fell and the Appellant aimed the panga at his head. PW1 raised his hand in an attempt to protect himself and the panga cut his left thumb. PW2 arrived after hearing PW1 scream. He testified that he saw the Appellant running with a panga and that he saw him very well because the incident occurred at about noon. On the face of it, the circumstances under which PW1 claimed to have seen the Appellant were favourable. The incident occurred in daylight and the alleged assailant was said to have been at close range. There is also evidence from PW2 that he saw the Appellant running away with a panga. The question is whether that evidence, considered together with the remainder of the prosecution evidence, was sufficient to eliminate reasonable doubt. The first difficulty is that the record as presented to this Court does not satisfactorily establish whether PW1 knew the Appellant before the incident. If PW1 knew the Appellant beforehand, the evidence would properly be considered as one of recognition. If he did not know him, the Court would have to scrutinize the circumstances of identification as identification of a stranger. The Appellant was arrested at 11.00pm in the night when sleeping in a house which PW3 said belonged to him and from where 2 pangas and logs were allegedly recovered. He was arrested together with two other younger boys who were diverted. According to PW3 and 7 the arrest was done with assistance of the community. The prosecution did not conduct an identification parade. I do not accept, as an absolute proposition, that failure to conduct an identification parade is automatically fatal. Where a witness already knows the accused, an identification parade ordinarily adds little. However, where the witness did not previously know the accused, and identification is disputed, the absence of an identification parade becomes a factor which the Court must consider together with the other circumstances.
PW2 arrived after hearing PW1 scream. His evidence therefore does not independently establish the initial attack. He saw the Appellant running with a panga. His evidence is corroborative to some extent but does not itself establish that the Appellant was the person who cut PW1. The prosecution therefore substantially depended upon PW1's evidence regarding the identity of his attacker. The Court must consequently examine whether there was other reliable evidence connecting the Appellant to the assault.
PW3 stated that the two other boys who were arrested confirmed that it was the Appellant who assaulted PW1. PW7 similarly testified that the two minors told the police that it was the Appellant who assaulted PW1. Those two minors were not called as witnesses. This evidence presents a significant problem. The statements allegedly made by the minors to PW3 and PW7 were not direct evidence of what the minors themselves saw and heard. To the extent that the prosecution relied upon what the minors allegedly told the witnesses to prove the truth of the assertion that the Appellant assaulted PW1, the evidence was hearsay unless brought within an applicable exception. The prosecution cannot ordinarily prove the truth of an allegation by calling another person to testify that a person who is not called as a witness made that allegation. It is particularly worrying that the two persons allegedly involved in the incident and who were said to have identified the Appellant were available, yet were not called. The court is mindful that the prosecution is not required to call a particular number of witnesses and that failure to call every possible witness does not automatically invalidate a conviction. However, the significance of the two minors in this case went beyond that of peripheral witnesses. The prosecution itself attributed to them evidence implicating the Appellant. If the prosecution intended to rely on their evidence as corroboration of PW1's identification, the proper course would ordinarily have been to call them, subject to the applicable safeguards governing evidence from children.
This court therefore find that the alleged statements of the minors could not safely be treated as substantive corroborative evidence against the Appellant.
There was also the evidence of the recovered pangas. PW3 and PW7 testified that two pangas were recovered from the house where the Appellant was arrested. The pangas were produced in evidence as exhibits. There was no evidence that either panga was subjected to forensic examination. No blood, DNA, fingerprint or other forensic evidence was produced connecting either panga to PW1. Indeed, PW7 testified that the pangas had been cleaned. The assertion by PW3 that cypress gum was found on the pangas may have some relevance to the forest offences, but it does not establish that either panga was used to cut PW1. More importantly, PW7 conceded that he did not know whether the house from which the pangas were recovered belonged to the Appellant. The Court
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