1. The Appellant was charged with the offence of Attempting to strike with intent to harm contrary to section 231(b) of the Penal Code in Iten Senior Principal Magistrates Criminal Case No E053 of 2024. The particulars of the offence are that on 1st December 2021 at around 0600 hours, at Cheptarit Sub Location, Keu location, within Keiyo North Sub County, Elgeyo Marakwet County, with intent to do grievous harm to National Government Administrative Officers, namely William Mutwol, Pius Chemisto, Alfred Kipruto and Charles Toroitich unlawfully attempted to strike them with a bow and arrow.
2. He was also charged with one count of destroying evidence contrary to section 36 of the Penal Code. The particulars of the offence are that on 1st December 2021 at around 0600 hours, at Cheptarit Sub Location, Keu location, within Keiyo North Sub County, Elgeyo Marakwet County, knowing that 10 litres of Chang’aa might be required in evidence in judicial proceedings wilfully removed it with intent to prevent it being used in evidence.
3. I note that the charge sheet in the trial court file was amended and countersigned by the prosecution to correct the date when the offence took place from 1st day of December 2023 to 1st day of December 2021.
4. The Appellant pleaded not guilty and the matter proceeded to full hearing. The prosecution called 4 witnesses in support of its case whereas the appellant called 3 witnesses. Upon considering the evidence tendered in court and the testimonies of the witnesses, the trial court convicted the appellant of the both counts and sentenced him to serve 4 years and 2 years respectively, the sentences were to run concurrently.
5. Being dissatisfied with the conviction and sentence, the appellant instituted the present appeal vide a Petition of filed on 23rd July 2024 through Messrs. J.K Kiplagat & Company Advocates. The appeal is premised on the following grounds;
i) The learned trial magistrate erred in law and in fact in entirely relying on a defective charge sheet.
ii) The learned trial magistrate erred in law and in fact in relying on evidence adduced by the Administrators alone without an independent witness.
iii) That the learned trial magistrate erred in law and fact by relying on contradictory evidence adduced by the respondent and totally ignoring evidence adduced by the appellant.
iv) That the trial magistrate erred in law and in fact in arriving at an erroneous judgement not supported by law.
v) That the learned trial magistrate erred in law and in fact in harshly and excessively convicting and sentencing the appellant
Prosecution evidence at the trial court.
6. PW1 was Pius Kimutai Chemosop, the assistant chief Chebilet Sub Location. He testified that on 01/12/2021 at around 5.30 -5.50 am in the company the late Chief William Mutwol and Assistant Chief Alfred Ruto, they were looking for illegal brew and they went to Purity Cherop’s home where they recovered 10 litres of chang’aa. They arrested her and a young man came and greeted them, asking for alcohol which they denied him. The young man got angry and told them he would find them. They hid at the neighbours. The young man came with bows and arrows. He threw a spear which passed between PW1 and Alfred and hit the wall of the house. He then took the exhibits and ran away. He stated that they called police officers to assist them and they took the arrows as an exhibit. That the appellant disappeared and was arrested after four years. He identified the accused as the person who was before the court and that Purity whose home they have always raided is the appellant’s sister.
7. In cross examination, he confirmed that the appellant was at the scene and aimed an arrow at them. That he took the alcohol and disappeared and was arrested after four years. That they did not exchange the arrows and whereas there were new arrows at the station, the one in court was old and he does not know if they were exchanged
8. PW2 was Alfred Kiprotich Ruto. He testified that he was the assistant chief of Kamoingon Sub Location for 7 years and on 01/12/2021 at 6 pm, he was with PW1, Charles Toroitich and Chief William Mutwol. They went to look for illegal brew and went to Purity’s home where they discovered 10 litres of chang’aa. They arrested her and the appellant emerged and took the exhibit of alcohol. He told them to leave the compound and went and armed himself with bows and arrows. They ran to a neighbours’ house and hid when he aimed the arrows at them while they were at the door and he wanted to hit them. They called police officers to assist them and the accused ran away. That they normally conduct raids and he did not know the accused but he was informed he is Purity’s sister. He identified the arrow in court. In cross examination he confirmed the identity of the appellant and stated that the arrow passed between the late chief and his trousers.
9. PW3 was Charles Kiprotich, the assistant chief Chepterit Sub Location. He testified that on 01/12/2021 at around 5.50-6am they were on a raid for illicit brew together with PW1, PW2 and the Chief Mutwol. They went to Purity’s house and they found three men and a lady. They tried to handcuff the men and recovered 10 litres of Chang’aa. The brother to Purity (the appellant) left and came back saying ‘leo nitawamaliza’. He aimed an arrow at them and it hit the house. He then left with the alcohol and they reported the matter. In cross examination, he stated that he arrow was one without poison and it had edges and was not the one before the court because that one had a flat edge that it was not the one that was in court. That the matter was reported but the appellant had disappeared. He denied having given the appellant any work at his home. In re-examination he stated that he knew the appellant as he was his neighbour, reiterated that the arrow before the court was a flat one and was not the one the appellant threw at them, that the arrow hit the wall of the house they hid in and denied that they framed the appellant.
10. PW4 was PC Mark Khisa testified that he is stationed at Kabulu Police Station. That he was the investigating officer in the case. That on the material date he received a call from the acting OCS who had received a call from the Area Chief who told him that that they were in trouble. He accompanied the OCS to Cheptiret and found the Chief with his three assistants inside a maize plantation. That there was a young man with a bow and arrow who disappeared on seeing them. The chief narrated what happened and they went to the station and recorded their statements. He further testified that the appellant disappeared until 18/01/2024 when he was spotted by a member of the public. They then arrested him and charged him with the offence. He produced the arrow and the same was marked as PExh1. In cross and re-examination, he stated that the chief handed him the arrow and he could not tell its age, that it had rust but the wooden bit was new, that he saw the appellant on the road armed with the arrow and he disappeared and hid in the thickets and then ran to the hills and that the attack happened at the house of the appellant’s sister house.
11. Upon considering the evidence and the testimonies of the prosecution witnesses, the magistrate was satisfied that the appellant had a case to answer and he was then placed on his defence.
Defence Evidence at the trial court
12. The Appellant testified as DW1 gave a sworn testimony in his defence and called three witnesses. He testified that on 22/12/2021 he was in Nairobi and had travelled home for Christmas and went back and came in April 2022 for nomination elections. In August 2022 he travelled home to vote and stayed at home until he was arrested and framed in this case. He stated that he was not around
13. DW2 was Erastus Kwambai Kimaiyo a farmer who resides within Keu village. He testified that he was with the appellant when the chief called him. That they were in Pangani, Savana estate in Nairobi in 2021. That they came home for Christmas and the appellant then went to Nairobi and came back home in April 2022 for nomination and then left and came back in August 2022 for election and remained behind until he was arrested. In cross examination, he testified that he used to live at Savana estate in Nairobi but did not produce rental receipts to confirm.
14. DW3 was Lydia Kipkeu who testified that she resides in Cheptiret and is a neighbour and that nothing happened on that day and she is not aware of the events of 1/12/2021.
15. DW4 was Diana Cheruto who testified that she is resident of Cheptiret and she works in a salon. She stated that the appellant was framed as he was not around. In cross examination, she stated that she was not with the appellant on 01/12/2024 and she did not stay with the appellant throughout the day and that she was also not with him on 01/12/2021 and did also not witness to the incident.
Judgement of the trial court
16. Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial magistrate convicted the appellant of both counts as charged and upon considering the mitigation of the accused, sentenced him to 4 years’ imprisonment on the 1st Count and to 2 years’ imprisonment on the second count and the sentences on both counts were to run concurrently.
Hearing of Appeal
17. The parties prosecuted the appeal vide written submissions. The Appellant through his Counsel J. K. Kiplagat Advocates filed submissions on 03/02/2025 whereas the prosecution filed submissions on 14/02/2025 through Prosecution Counsel Rachel Mwangi.
Appellants’ Submissions
18. Learned counsel for the appellant submitted that the new charge sheet allegedly amended on 29/2/2024 was not served upon the appellant as required by law and therefore, the appellant relied on a defective charge sheet which does not reflect the exact date and year. Counsel further submitted that all the prosecution witnesses who testified before court were administrators and there was no independent witness. Further, that the key witness mentioned, namely Purity, was not called to testify by the prosecution.
19. Counsel urged that the exhibits presented before the court were not the ones allegedly found with the appellant. Further, that the prosecution witnesses gave contradictory evidence in connection with the arrow brought before court. He pointed out that during cross examination, PW1 stated that he saw a new arrow at police station but, the one which was in court was old. Additionally, that PW3 also stated that the arrow which was before court as exhibit was different from the one allegedly taken from the scene of crime.
Counsel submitted that the case was not proved beyond reasonable doubt in the circumstances and therefore the benefit of doubt ought to be in favour of the appellant. He cited Article 50 of the Constitution of Kenya 2010 and urged that the appellant was not accorded a fair hearing according to the constitution. In conclusion, counsel submitted that the appeal has merit and prayed the court allow the same and set the judgment and sentence aside.
Respondents’ submissions
20. Learned counsel on the issue of the defective charge sheet submitted that the same was amended on 29/02/2024, which amendment was with regards to the year the offence was committed which was 2021 and not 2023. The amendment was done by correcting the year on the charge sheet and the prosecuting counsel counter signed against the amendment. He urged that the amendment was also done when the prosecution case was first heard. All witnesses testified referring to the year of the offence as the year 2021. The appellant was acting in person and was able to participate in the proceedings by asking questions during cross-examination. Counsel further submitted that during his defence, the appellant was able to state that on 22/12/2021, he was in Nairobi. This means that the appellant was aware of the exact date and year when the offense took place and therefore, he cannot allege that he relied on the defective charge sheet.
21. In response to the allegation that no independent witness was called to prove the prosecution case beyond any reasonable doubt, counsel submitted that the law does not require the prosecution to call a particular witness so long as the witnesses called can prove the charge beyond any reasonable doubt. He cited Section 143 of Evidence Act and relied on the case of Julius Kalewa Mutunga v Republic (2006) eKLR in support of this submission. He maintained that the witnesses called by the prosecution gave sufficient evidence to prove that the appellant was guilty beyond any reasonable doubt.
22. On the issue of contradictory evidence, counsel submitted that the prosecution witnesses’ evidence was consistent and not contradictory as alleged by the appellant. That PW1 to PW3 all testified that they went to the home of one Purity Cherop where upon searching, they recovered 10 litres of chang’aa.' The accused then asked them to hand over the chang’aa to him and when they refused, he armed himself with bows and arrows which he shot at them and they then ran for their life. He then took the chang’aa and went away. Counsel recounted the evidence of PW4 the investigating officer and urged that it is not in contention that the appellant was armed with a bow and arrows. He cited the case of Francis Mugo v Republic [2022] eKLR where the High Court sitting in Meru held as follows;
"The position taken by the Kenyan court is that contradictions or inconsistencies to merit disturbance of a conviction must be grave and not Just any inconsistency."
23. He additionally cited the case of Richard Munene v Republic [2018] eKLR and urged that the contradictions in the prosecution case were not substantial or fatal enough to create doubt in the mind of the court as the witnesses’ testimonies were consistent.
24. On sentence, counsel submitted that the appellant was charged with two counts to wit; Attempting to strike with intent to harm contrary to Section 231(b) Penal Code and Destroying evidence contrary to Section 116 as read with Section 36 of the Penal Code. The Prosecution Counsel reproduced the provisions of the relevant sections and urged that the convictions and sentences were within the law. Counsel cited the case of Bernard Kimani Gacheru vs Republic (2002) eKLR on interference of sentences by an appellate court and urged that the appellant's sentence was not excessive. Further, that the trial court did not overlook any material factor or take into account wrong material or act on the wrong principle. Counsel urged the court not to disturb the sentence and to dismiss the appeal for lack of merit.
Determination
25. As regards the duty of appellate court this was laid out in the case of Okeno v Republic ( 1972) EA 32 as follows;
“The duty of the 1st appellate court is to analyze, revaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that.
26. The same principle was restated by the Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) which cited with approval the case of Okeno Versus Republic (Supra) wherein the court stated thus;
The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may be depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
27. Having stated the above, from my consideration of the evidence on record in its totality as well as the submissions filed, it is my considered opinion that the issues for determination are as follows;
(i) Whether the charge sheet was defective
(ii) Whether the prosecution evidence was contradictory and did not meet the required threshold of proof
(iii) Whether the sentence was excessive
28. On the issue on that the charge was defective, Section 134 of the Criminal Procedure Code provides as follows:
“Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
29. The reasons for the need for a concise and precise charge were enunciated in the case of Sigilani vs Republic, (2004) 2 KLR, 480 where the court held thus:
"The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence."
30. However, the law envisages a situation where for one reason or another, there may be a defect in the charge hence the provisions of Section 382 of the Criminal Procedure Code which provides as follows:
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
31. The issue on whether any such defect is curable the High court in the case of Senator Johnstone Muthama v Director of Public Prosecutions & 2 others; Japhet Muriira Muroko (Interested Party) [2020] eKLR, which was presided over by a three Judge bench held as follows:
“46. The law contemplates that there may be occasions when there may be an error, omission or irregularity in a charge sheet. In addition, there may be errors, omissions or irregularities that may defeat a charge. However, whether such an error, omission or irregularity is incurable will depend on whether it occasions a miscarriage of justice. This is the foundation of Section 382 of the Criminal Procedure Code ….”
32. In this case, I note that the defect in the charge was with regard to the year it is alleged the offence was committed. The same was amended by the prosecution by crossing out the year of 2023, inserting the year 2021 and countersigning upon the amendment. The plea was taken on 19th January 2024. The amendment was made on 29th February 2024. This was on the date the trial commenced. Even though amended by hand, because the same was dated and countersigned, I am satisfied that amendment was appropriate for reasons that there is no requirement in law that charge sheets must be typed. Many a times, the same as presented have been hand written.
33. However, the date of the commission of any offence alleged is a factor that is material to the prosecution case. This is because as stated in the case of Sigilani vs Republic(Supra) the law as set out in Section 134 of the Criminal Procedure Code requires that the offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. Precision and unambiguity is crucial in a charge not only for the reasons therein stated but also so that any person charged must have the correct facts and circumstances of the alleged offence in order to adequately prepare for their defence. This is of particular significance and importance for reasons that in any criminal proceedings, the possibility that an individual’s liberty is at stake and may be taken away in light of the fact that serving a term of imprisonment is one of the sentences that can be meted out upon conviction does in fact exist.
34. What was required of the court after the amendment was done was that a fresh plea be taken and the facts and circumstances of the case as amended read out to appellant to enable him plead to them. From the record, there is no indication that this was done. The appellant was unrepresented in the trial court. It was therefore even more crucial that the court ensures that the plea as recorded was based on the facts and circumstances of the case as testified by the witnesses and it is not enough as the prosecution submitted that the appellant who was acting in person was able to participate in the proceedings by asking questions during cross-examination and the appellant in his defence was able to state that on 22/12/2021, he was in Nairobi which therefore means that the appellant was aware of the exact date and year when the offense took place and cannot allege on appeal that the prosecution relied on the defective charge sheet.
35. In these circumstances, I find that even as no objection was raised to the amendment during the trial, the appellant was indeed prejudiced by dint of the fact that he was not given the opportunity to plead to the charge as amended. In this regard, I find merit on this ground of appeal.
36. On the issue of whether the evidence met the required standard of proof, I have considered the evidence in its totality. I have also read the impugned judgement of the Hon Magistrate. I note that the accused defence is based on an alibi. That he was away I Nairobi on the material date. Even as the law is that an alibi defence ought to be raised sufficiently early so that it can be adequately tested (See Victor Mwenda Mulinge v Republic [2014] KLR) the court notes that because this is not a hard and fast rule in light of the fact that an alibi defence must be weighed with all the other evidence, the court will consider the appellant’s alibi defence notwithstanding the fact that it was raised at the defence stage.
37. But before delving into the same I will simply point out that as is provided under Article 157 of the Constitution, the ODPP is the body mandated to prosecute all criminal cases and in the exercise of this mandate, it shall not be under the guidance and control of any body and/or person. The above being the case, it is the ODPP and not the defence to determine what witnesses it considers crucial. The duty of the defence is to work with the evidence of the witnesses availed and demonstrate to court by way of rebutting, refuting, contradicting, challenging and/or controverting their evidence and to demonstrate to court that their evidence is not sufficiently reliable to found a conviction. In this regard therefore, the appellant’s submission that the prosecution failed to call crucial witnesses is misconceived.
38. The provisions of Section Section 143 of the Evidence Act is relevant and it provides that;
no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
39. In the case of Keter v Republic [2007] 1 EA 135 the court inter alia held that:
“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”
40. Also in the case Julius Kalewa Mutunga v Republic [2006] eKLR, the Court of Appeal held that:
“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.”
41. As provided under Section 107 of the Evidence Act;
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
42. The degree of proof in criminal cases is proof beyond reasonable doubt. The question that the court must answer then is whether that degree was attained by the prosecution in this case and whether the trial Magistrate properly directed herself in reaching a plea of guilt and thereby convicting the appellant based on this evidence. A summation of the findings of the Hon Magistrate is that she was satisfied with the evidence of the prosecution witnesses and dismissed the evidence of the appellant terming the alibi raised as an afterthought for reason that it was raised in passing in his defence and further that his witnesses never added value to his case as they were not present when the incident occurred.
43. In considering the evidence of both the prosecution and defence, I find that the prosecution witnesses were consistent in their testimony on how the events unfolded on the material day. However, all were unanimous that the arrow produced is not the one that the appellant accosted them with. This aspect of the prosecution case was not at all considered by the Hon Magistrate in the impugned judgement. Further, as I have already stated above, it is desirable but not mandatory that an alibi evidence be adduced at the earliest opportunity. I note as that the evidence of defence witnesses the alibi raised by the appellant is not contradictory. They were unanimous that the appellant came home from Nairobi for Christmas, went back and came back in April of 2022 came for nominations, went back and came back in August of 2022 to vote. It is also of note that the prosecution did not challenge the evidence of the defence witnesses in any significant way in cross examination. Further, DW2 testified that they lived together with the appellant in Nairobi and this too was not challenged in any meaningful way.
44. In addressing my mind to this evidence, I find that each of the prosecution as well as the defence case holds sway in their own right and each of the scenarios as testified by the prosecution and the defence are distinct scenarios and possibilities that can be construed to have been the circumstances pertaining to this case on the material date. This only goes to show that the threshold met by the prosecution in light of the alibi defence of the appellant is that of a balance of probabilities and not beyond reasonable doubt.
45. This scenario coupled with the fact that the prosecution witnesses disputed and disowned the exhibit that was produced in court is a significant consideration that this court must take into account. Further to these, I have also herein made a finding that the appellant was not afforded the opportunity to plead to the charge as amended. All these leads me to the conclusion that it was unsafe for the Hon Magistrate to reach a verdict of guilt and convict the accuse on both counts of the charge in the circumstances. In this regard, I find merit in the appeal in its entirety, set aside both the conviction and sentence on each of the two counts. The appellant is therefore acquitted and is to be released forthwith unless otherwise lawfully held. Right of Appeal 14 days
Read Dated and Signed at ITEN on 3rd April 2025