Introduction
1. The Appellant, Isaac Kiptoo Rono, dissatisfied with the conviction and sentence of the trial court, in Criminal Case No. E061 of 2022, filed this appeal.
2. A brief background of the matter is that the Appellant was charged with the offence of Attempted Murder Contrary to Section 220(a) of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that; on 17th November 2018, at Chepkechei Village in Chemelil, Muhoroni Sub County, within Kisumu County, the Appellant attempted to unlawfully cause the death of John Paul Owuor, by attacking and hacking him with a panga on the head, left arm and abdomen.
3. The Appellant was thereafter tried and convicted of Attempted Murder contrary to Section 220(a) of the Penal Code Cap 63 Laws of Kenya, and sentenced to 20 years imprisonment. This is what the Appellant herein is aggrieved with; hence the present appeal.
The Appeal
4. The Appellant challenged his conviction and the sentence vide a Petition of Appeal dated 6th December 2022 and on the various grounds enumerated in his Supplementary Grounds of Appeal dated 10th August 2023. The Appellant however argued his appeal under the following five grounds; -
a. Whether the Appellant was positively identified as the perpetrator of the crime in question.
b. Whether the trial court erred in law and in fact in relying on the motive to place the 1st accused at the scene of crime and convict him.
c. Whether or not the prosecution proved the intention/mens rea beyond a reasonable doubt
d. Whether the trial court erred in law and in fact in not giving the Appellant, less punishment
e. Whether the trial court erred in law and in fact, in failing to compute the appellant's sentence to be computed from the time of his arrest.
The Appellant’s submissions.
5. On the issue of identification, the Appellant submits that he was not positively identified as the perpetrator of the crime. He maintained that the trial court erred in relying on the uncorroborated evidence of PW2. According to the Appellant, PW2 who was the victim testified that when his assailant approached him, he did not know him and that he was only told by George that the assailant was called Malakwen. However, due to the fact that the said George had died at the scene of the crime, he was not called/could not be called as a witness to corroborate the testimony by PW2.
6. It was further the Appellant’s case that all the other witnesses who testified on the question of identification merely stated that they had been told who the perpetrator was, without availing those who told them.
7. The Appellant further submitted that when PW2 first reported the matter to the police, he did not identify the clothes which his assailant was at the time of the incident wearing, that he only identified the clothes after he had seen them in court.
8. The Appellant also submitted that the circumstances under which the incident happened could not have favoured positive identification even if there was enough lighting. According to the Appellant, the attack was sudden, and PW2 (victim) was cut in the hand, head, and abdomen, and was nursing serious pain, when he managed to run into the vehicle and drove away to save his life. The Appellant maintained that under that pain and fear, PW2 had no time to see who actually committed the crime.
9. Consequently, the Appellant asserted that the dock identification was of no value in the absence of a properly conducted lawful identification parade, for PW2 to prove the correctness of his identification of the 1st Accused.
10. Secondly the Appellant submitted that the trial court erred by relying on the purported motive on his part to link him to the crime contrary to the express provisions of the law. According to the Appellant, the mere fact that he used to cultivate the land in question, could not of itself link him to the crime.
11. The Appellant further submitted that the trial court erred in failing to appreciate that the Respondent failed to prove mens rea to the standards required in a criminal trial. Citing the Court of Appeal decision in Nzuki v. Republic [1973] KLR 171, the Appellant asserted that the mere fact that the accused conduct is done in the knowledge that grievous harm is likely or highly likely to ensure from his conduct is not by itself enough to convert a crime of homicide into murder.
12. On the sentence meted out by the trial court, the Appellant submitted that the 20 years imprisonment term meted out to him by the trial court is in conflict with Section 389 of the Penal Code, which requires that in an offence of an attempt to commit a felony, the sentence should not exceed seven years imprisonment. It was the Appellant’s position that pursuant to Article 50 (2) (p) of the Constitution, he was entitled to the least severe of the prescribed punishment, in this case, not exceeding 7 years. The Appellant placed reliance on the Court of Appeal decision of David Mwangi Mugo v Republic [2011] eKLR HCCRA. No. 1263 of 2002.
13. Finally, the Appellant submitted that the trial court erred in directing that the Appellant’s sentence be computed from the date of the judgment as opposed to the date of his arrest. In support of this argument, the Appellant relied on the case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR and submitted that the sentence ought to have run from the date that he lost his liberty, that is, the date of his arrest.
The Respondent’s submissions
14. The Respondent on its part opposed the appeal and supported the trial court’s decision and invited this Court to dismiss the appeal.
15. The Respondent filed a Grounds of Opposition dated 19th February 2024 and asserted that the Appeal is misconceived, unsubstantiated, and an abuse of the process of the Court.
16. The Respondent maintained that it led sufficient evidence to prove the offence of attempted murder contrary to section 220 (a) of the Penal Code, by which the Appellant was charged. It is the Respondent’s case that both the ingredients of the offence of attempted murder, that is, the actus reus and mens rea on the part of the Appellant were sufficiently proved by the Respondent at trial.
17. On identification, the Respondent submitted that the Appellant was positively identified since the incident occurred during the day, in the presence of several witnesses who testified as to the involvement of the Appellant in the commission of the offence. The state further submitted that in as much as the officer who conducted the identification was not called to court, the same does not negate the fact that, the perpetrator was clearly identified by the witnesses as the person who committed the offence.
18. On conflict of provisions in sentencing, the Respondent submitted that Section 220 (a) of the Penal Code provides for the offence and the sentence to be imposed, and that there is no conflict with Section 389 of the Penal Code as alleged by the Appellant.
19. Regarding the period from which the sentence is to run, the Respondent submitted that the sentence is legal and proper, as envisaged under Section 333(2) of the Criminal Procedure Code where the court is to consider the period spent in custody prior to the sentence, which in fact is beneficial to the Appellant.
20. On the sentence meted out, the Respondent submitted that the 20 years imprisonment term meted out by the trial court was legal and lenient, particularly taking into account that the punishment prescribed under Section 22(a) of the Penal Code is imprisonment for life.
Analysis and Determination
21. This being a first appeal, I am obliged to consider and analyse all the evidence on record and make my own findings without overlooking the findings of the trial court and bearing in mind that I did not have the advantage of seeing and hearing the witnesses testify. In Okeno -vs- R., [1972] EA 32 at p. 36 the predecessor of this Court stated: -
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (PANDYA V. R. [1957] EA 336) 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. (SHANTILEL M. RUWAL V. R. [1957] EA 570).
22. I have reviewed the trial Record, the grounds of appeal, and the appellant’s submissions. The two main issues for determination are as follows: -
i. Whether the conviction was proper and safe.
ii. Whether the sentence was appropriate.
a) Whether the conviction was proper and safe
23. The offence of attempted murder is created by section 220 of the Penal Code which provides as follows:
“220. Attempt to murder
Any person who—
(a) attempts unlawfully to cause the death of another; or
(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.
24. It is also germane to note that “Attempt” is defined by section 388 of the Penal Code as follows: -
“388. (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
25. From the above provisions of the law, it is clear that the main ingredient of an attempted offence is the intention to commit the said offence, and it is immaterial whether or not the same is actually carried out to fruition. It is the intention that constitutes the criminal mens rea of the offence, while the actual execution of any act in an attempt to commit the crime is the actus reus.
26. In the instant case therefore, the main ingredients for attempted murder would be the intention to cause the death of another and the actus reus would be the actual act that would likely to lead to the death, but which subsequently fails.
27. The Court of Appeal in the case of Abdi Ali Barre v Republic (2015) eKLR stated as follows on the ingredients of the offence of attempted murder: -
“The more challenging question in a charge of attempted murder is the actus reus of the offence. Although a casual reading of section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence
.……..to prove attempted murder on the part of the appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with commission of the murder. Whether there has been an attempt to commit an offence is a question of fact. The act alleged to constitute attempted murder, for example, must be sufficiently proximate to murder to be properly described as attempt to commit murder.”
28. In this case, the fact that the complainant was cut with a panga on the hand, head, and abdomen was obviously evidence of intention to kill him. The elements of attempted murder were therefore proved by the prosecution. The question that remains for determination by this court is whether the appellant was positively identified as the assailant.
29. In Maitanyi vs Republic, (1986) KLR 196 the court set out what constitutes favourable conditions for a correct identification by a sole testifying witness as follows: -
“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error”.
30. In Wamunga vs. Republic (1989) KLR 426 it was held thus: -
“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”
31. I am also aware of the guidelines set by the Court of Appeal in the case of Mwaura vs. Republic [1987] KLR 645, wherein it was held, inter alia, that:
“In cases of visual identification by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”.
32. Applying the principles expressed in the above cases to the instant case, I note that on the issue of identification, the complainant herein, Paul John Owuor testified as PW2 and told the trial court that on the material day, that is, 17.11.2018, while accompanied by George, the firm manager he went to the farm to check the invasion of the land which had been reported to him by the are chief via a phone call of 9/11/2018.
33. It was further the testimony of PW2 that on the same 17.11.2018, accompanied by George, he proceeded to make a formal complaint of the invasion at the Chemelil Police Station but the police officer by the name Chemulea who recorded their statement asked them to bring more witness. Consequently, it was PW2s testimony that they later proceeded to the farm on the same day to get more evidence. On reaching the land, they found around 20 people working on the farm, ploughing the land using three tractors, two of which were red. The other tractor was green. That there was also a Toyota saloon which was parked on the side. That they took pictures of the people and tractors using George’s mobile phone.
34. PW2 testified that as they were taking pictures, a tall person came from the Toyota Corolla, running towards them warning George of dire consequences. That even though PW2 did not recognize the said person, George informed PW2 that the man was Malakwen. That the Appellant cut him twice in the hand, head, and stomach with the panga, making him fall on the ground as a consequence. That Appellant thereafter proceeded to George and cut him severally with the panga until George died.
35. On cross-examination by the Appellant, PW2 maintained that he saw the Appellant coming from the white saloon that was packed at the farm and that George told PW2 that the Appellant was known as Malakwen.
36. From the record of appeal, I note that the trial court in reaching its conclusion on the issue stated as follows; -
“PW2 (Complainant) states that he saw accused advance towards them when where they arrived at the scene and were taking photographs, he whipped his pistol when he sensed danger. He was the one categorical that accused 1 was the one leading the attack and accused 2 joined him. He gave a blow account of what transpired. Accused 1 concede that he was at the scene when the incident occurred. His defence that he looked and saw people screaming and wining towards the lower part of the farm does not hold water. PW6 and PW7 were learn that they had been hired by accused 1 to plough the land. That accused 1 was unable to be in this line of evidence. It also beats logic that an incident of that magnitude could occur in your locality and you simply walk away. Accused 1 failed to give exhibits of whom he was going to meet in Chemelil town and the purpose of the meeting. ….”
37. I have re-examined the evidence upon which the trial court made its conclusion on the issue of identification of the Appellant. I find no reason to fault the conclusion reached by the trial court on the issue. The incident happened at around 2.00 pm, in broad daylight. The argument by the Appellant that circumstances favouring positive identification of the assailant may have been compromised since PW2 was in much pain and in a hurry to save his life, is equally not convincing. From the testimony of PW2, he saw the Appellant approach them directly from where the Toyota Corolla had been parked. Further, the evidence of PW6 and PW7 also placed the Appellant at the scene.
38. From the above analysis, I do find, as the trial court did, that there was enough evidence to link the Appellant with the offence and that he was the assailant. This ground therefore fails.
Whether the sentence was appropriate.
39. On the sentence meted out by the trial court, from the record, the Appellant herein was charged with the offence of attempted murder contrary to Section 220 (a) of the Penal Code which provides as follows:-
“Any person who—
(a) attempts unlawfully to cause the death of another; or
(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.”
40. The Appellant’s position in this appeal is that contrary to Article 50 (2) (p) of the Constitution he was not accorded the lesser of the punishments available for the offence of attempted murder. According to the Appellant, the trial court ought to have handed down an imprisonment term of not more than 7 years as provided under section 389 of the Penal Code as the penalty for an attempt to commit a felony.
41. Section 389 of the Penal Code provides as follows: -
“Any person who attempts to commit a felony or a misdemeanor is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment, he shall not be liable to imprisonment for a term exceeding seven years.”
42. It is germane to note that sentencing is a crucial part of the criminal justice process where Courts are called upon to exercise discretion, then parties are at liberty to even adduce evidence that may aid Courts reach most appropriate sentences (See the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR).
43. The lower court convicted the appellant and sentenced him to 20 years imprisonment for the offence of attempted murder contrary to Section 220(a) of the penal code. It is critical to note that the punishment provided under Section 220(a) of the penal code is life imprisonment.
44. From a review of the two provisions of the law, it is my view that Section 389 of the Penal Code is only applicable, “if no other punishment is provided”. In the instant case, it is evident that for the offence of attempted murder, the applicable punishment provided under Section 220(a) of the penal code is life imprisonment.
45. It is therefore the position of this court that by handing down a sentence of 20 years imprisonment, the trial court acted well within the law. Again, this ground of appeal fails.
46. Regarding the period from which the sentence is to run, this court notes that Section 333(2) of the Criminal Procedure Code provides as follows: -
“(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
47. In the instant case, I have noted from the sentencing proceedings that there is no record that the period in custody was taken into account by the trial court in sentencing the Appellant. From the record, I note that the Appellant was arrested on 12/02/2020 and remained in custody until 26/05/2020 when he was released on bond of Kshs. 1,000,000/-. In my calculation, the period taken in custody was 3 months and 12 days (104 days).
48. In Ahmed Abolfathi Mohamed v Republic [2018] eKLR the Court of Appeal held as follows;
“'Taking into account' the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to Section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellant’s sentence of imprisonment to run from the date of arrest on June 19, 2012.”
49. The Judiciary Sentencing Policy Guidelines states as follows as regards the section:
“'The proviso to Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
50. Based on the foregoing decisions and the existing jurisprudence, I allow the appeal on this ground and direct that the period spent in custody be included in the computation, that is to say, that the sentence shall run from the date of arrest, which is 12/02/2020. This limb of the appeal therefore succeeds.
Disposition
51. Based on the above findings, this appeal is now determined as follows; -
a. The appeal against the convictions is hereby dismissed.
b. The appeals against the sentence succeed, but only to the extent that the sentence shall run as from the date of his arrest, being 12/02/2020.
c. The file be marked as closed
52. It is so ordered.
SIGNED, DATED, AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the Presence of: -
C/A………. Moses
………………….for the Appellant
………………for the Respondent