(Being an appeal from the judgment and sentence delivered on 30th July 2024 by Hon. Y.M. Barasa, Principal Magistrate, in Naivasha CMCCR No. 356 of 2020)
1. The Appellant herein was initially charged with 5 counts but was ultimately convicted and sentenced on 2 counts, namely;
i) Count II: Resisting arrest contrary to section 103(a) of the National Police Service Act; and
ii) Count III: Assault in resisting arrest contrary to section 253(a) of the Penal Code.
2. The particulars of the charge were that on 15 th May 2020 at Moi South Lake Road along Kedong Ranch area of Kongoni in Naivasha Sub County within Nakuru County, while being arrested for the offence of incitement to violence resisted to be arrested and assaulted No. 77515 PC David Mundia who was on patrol in the said area.
3. He was acquitted on the remaining counts.
4. Aggrieved by both the conviction and sentence, the appellant lodged this appeal and raised eight grounds of appeal , which can be condensed into the following broad issues: -
a) Whether the charges on which the appellant was convicted were incurably defective.
b) Whether the evidence adduced proved the offences beyond reasonable doubt.
c) Whether the trial court failed to consider the appellant’s defence.
d) Whether the sentence imposed was legal and proper.
5. As the first appellate court, this court is required to re-analyze and re-evaluate the evidence tendered before the trial court with a view to arriving at its own independent conclusions while bearing in mind the fact that it neither heard nor saw the witnesses testify.(See Okeno vs. Republic (1972) EA 32 )
6. A summary of the evidence presented before the trial court was as follows: -
7. PW1, Police Constable David Mundia, testified that on 15 th May 2020, he and other officers received information that a group of people had barricaded the road between Sopa Resort and Flamingo Flower Farm using stones and tyres while shouting the name of an organisation called “White Eagle.” Upon arrival at the scene with other officers, they found a crowd which scattered in different directions.
8. PW1 stated that the group’s chairman, the appellant herein, was violent when approached, forcing the officers to use necessary force to restrain him. In the process of arresting him, the appellant allegedly bit PW1 on the left middle finger, causing injury. With the assistance of colleagues, PW1 managed to handcuff the appellant and escort him to the patrol vehicle. The secretary of the group, Benson Riboi, was also arrested.
9. PW1 further testified that he booked the arrest in the Occurrence Book (OB), though he admitted that the investigation diary did not indicate the complainants or include photographs of the scene. He did not see the appellant holding any placard or T-shirt with the words “White Eagle,” nor did he observe social distancing or mask-wearing during the arrest. PW1 said he later received treatment at Naivasha Sub-County Hospital.
10. PW2 Inspector Raymond Wanjala, also based at Kongoni Police Station, corroborated PW1’s account. He stated that the officers responded to complaints that the road had been blocked by demonstrators. When the officers arrived at the scene in the company of the OCS, the group ran in different directions. According to PW2, as the appellant was being arrested, he resisted and bit PW1 on the left middle finger. He confirmed that the demonstrators had used stones to block the road and that the accused persons were known to the OCS. PW2 said the group was referred to as “White Eagle,” though he did not know whether they had a permit to demonstrate.
11. PW3, Ben Kuria , a clinical officer at Naivasha Sub-County Hospital, testified that he examined PW1 (aged 43 years) and filled a P3 form for him. He noted a cut wound on PW1’s ring finger , approximately 2 cm long, consistent with injury caused by a sharp object, and classified the degree of injury as “harm.” On cross-examination, he explained that the wound appeared to have been inflicted by a sharp instrument, not a blunt object, and confirmed he filled a similar P3 form for the appellant at a later date. PW3 noted that the P3 was filled four days after the alleged incident.
12. PW4 PC Edith Soita testified that at around 11:00 am on 15 th May 2020, she was informed of riots near Kedong Ranch. Together with the OCS and other officers, they proceeded to the scene, where they found many people protesting and using stones to block the road. She stated that the officers pursued the demonstrators, including the Appellant, who, in the process of arrest, bit PW1 on the left middle finger. She confirmed that they arrested both the Appellant and his co-accused Benson. On cross-examination, she admitted that although there was a crowd, she did not personally receive any complaint from the public. She did not witness whether the demonstrators were wearing masks, but noted that she did not see anything wrong with PW1 booking his own complaint.
13. PW5, Chief Inspector Shadrack Musau, the investigating officer, testified that he accompanied other officers to the scene after being informed that demonstrators had blocked the road and lit fires. Upon seeing the officers, the group scattered in different directions.
14. PW5 stated that the Appellant resisted arrest and bit PW1 on the left middle finger. He further testified that the accused persons violated COVID-19 protocols by failing to wear masks and keep social distance. He admitted, on cross-examination, that no exhibits (stones or tyres) were collected and that he saw the accused persons for the first time on the day of arrest. PW5 confirmed that PW1 was assigned to book the OB entry and that the group did not have a permit to demonstrate.
15. When placed on his defence, the Appellant testified that he was a fisherman and chairman of an organisation called “White Eagle,” and that Benson was the secretary. He stated that they had previously obtained permission from the OCS to conduct peaceful demonstrations regarding blocked access to Lake Naivasha. He claimed that on the material day, when they arrived for the demonstration, the police, including the OCS, immediately ordered his arrest without any just cause. He alleged that he was beaten by the officers, arrested, and subsequently taken to quarantine for two weeks. The appellant denied resisting arrest and denied biting PW1. He also insisted that he wore a mask and adhered to COVID-19 protocols. He maintained that he did not assault a police officer and that the charges were fabricated.
16. The Appeal was canvassed by way of written submissions.
Appellant’s Submissions
17. The appellant submitted that the charges were fatally defective because both counts stated that the appellant resisted arrest “for the offence of incitement to violence”, yet he was never charged with that offence, and no evidence of incitement was led.
18. It was the Appellant’s case that an arrest must be lawful , and that where the primary offence is absent, a charge of resisting arrest cannot stand. Authorities relied upon include Augustine Kirimi vs. Republic [2009] eKLR, John Nyaga Waruri v Republic [2019] eKLR, and Susan Nzilani Mutuku v Republic [2014] eKLR.
19. It was submitted that there was no proof that the appellant resisted arrest as PW1 testified that he arrested the appellant immediately and escorted him to the station.
20. The Appellant argued that the evidence on the assault charge was inconsistent as while PW1 and PW5 alleged the Appellant bit PW1’s middle finger, PW3 recorded a cut wound on the ring finger which was alleged to have been caused by a sharp object. The Appellant observed that the P3 form did not support the prosecution narrative, and that PW1’s conduct of booking his own report and issuing himself a P3 form cast doubt on the credibility of his claims.
21. The Appellant further submitted that his sworn defence denying resisting arrest and assault was not considered by the trial magistrate. He maintained that the conviction was not supported by evidence and that the sentence was undeserved.
Respondent’s Submissions
22. The Respondent submitted that any defect in the charge was minor and curable under Article 159(2)(d) of the Constitution which requires courts to administer justice without undue regard to technicalities.
23. It was the Respondent’s case that PW1 and PW2 gave credible and consistent evidence that the appellant resisted arrest and bit PW1’s finger. The Respondent argued that PW3 confirmed injuries on PW1’s finger which he assessed as harm.
24. It was submitted that the appellant fully participated in the trial and was not prejudiced by the form of the charge sheet and further, that the trial magistrate properly evaluated the prosecution’s case and rejected the appellant’s weak defence. According to the Respondent, the conviction and sentence were lawful and should be upheld.
25. I have already highlighted the issues for determination in this judgment at the point of highlighting the grounds of appeal.
Analysis and Determination
Whether the Charges Were Incurably Defective
26. It is instructive to note that while both counts II and III state that the Appellant resisted arrest “for the offence of incitement to violence contrary to section 96 of the Penal Code”, the Appellant was not charged with the offence of incitement to violence. No evidence of incitement was led by the Prosecution.
27. The jurisprudence on the offence of resisting arrest is clear that it is not a stand-alone offence but must relate to a lawful arrest for a disclosed offence. In Augustine Kirimi vs. Republic (supra) the High Court held that resisting arrest is not a stand-alone offence and must relate to a lawful arrest for a disclosed offence. This means that the offence of resisting arrest can only arise where there is a primary offence on which it is anchored.
28. In Susan Nzilani Mutuku case (supra) the court emphasized that where the accused was not being lawfully arrested for a valid offence, the charge of resisting arrest cannot arise.
29. Similarly, John Nyaga Waruri vs. Republic (supra) the court underscored that the arrest must be based on a legitimate underlying offence.
30. In the instant case, the charge sheet tethered the resisting-arrest charge to a non-existent primary offence. I find that this omission was not a mere technicality as it went to the very legality of the arrest.
31. I therefore find that the charge on Count II was incurably defective and that the appellant’s conviction on the said count cannot stand.
32. My further finding is that since Count III on alleged assault, in resisting arrest, also expressly stated that the assault occurred in resisting arrest for the offence of incitement to violence, the same defect similarly attaches to it. My take is that a defective foundational charge cannot sustain a dependent charge.
33. My above findings would have been sufficient to determine this appeal, but I am still minded to determine the issues of whether the charges were proved beyond reasonable doubt.
34. On count II of Resisting Arrest, I note that even if the charge was not defective, the evidence presented on the alleged resistance was inconsistent, contradictory and not supported by the events recorded in the OB. I say so because PW1 admitted that the Appellant was arrested immediately at the scene, escorted to the station without incident and booked in normally. I am unable to find that the Prosecution established that there was any active resistance to arrest.
35. Turning to the alleged assault when resisting arrest, the Prosecution’s case was that the Appellant bit PW1’s left middle finger. PW3 however recorded a cut wound on the left ring finger, not bite marks. The P3 form, on the other hand, indicated that the injury was caused by a sharp object, not a bite.
36. I further not that medical examination was conducted several days after the alleged incident and that no medical/treatment notes were produced to support PW1’s treatment. It was also quite confounding that PW1 issued a P3 form to himself thus raising more credibility concerns.
37. My take is that the above noted contradictions are material and weaken the prosecution’s case thereby leading to the irresistible conclusion that the evidence presented by the Prosecution did not meet the threshold of proof beyond reasonable doubt for either count.
The Defence
38. Turning to the issue of whether the trial court considered the Appellant’s evidence, I note that the Appellant gave sworn evidence stating that he never resisted arrest, was beaten by police and issued with a P3 form documenting injuries. He added that his arrest was politically motivated during a community demonstration.
39. It is however noteworthy that the trial court’s judgment, did not summarize the Appellant’s defence, did not analyse it or give any reasons for rejecting it. A perusal of the trial court’s judgment shows that the only time the Appellant’s evidence is mentioned in the analysis section is through a single sentence that: -
“The accused person denied resisting arrest.”
40. Article 50(2)(k) guarantees an accused person the right to have their defence considered and weighed. I find that the omission to analyse the Appellant’s evidence was a serious error and a denial of a fair trial.
Sentence
41. Having found that the conviction is unsustainable both in law and on evidence, the sentence automatically collapses.
Disposition
42. For the reasons that I have stated in this judgment, I find that the instant appeal is merited and I accordingly allow it in the following terms: -
a) The appeal succeeds in its entirety.
b) The convictions on Count II and Count III are hereby quashed .
c) The sentences imposed are hereby set aside .
d) The appellant shall be set at liberty forthwith , unless otherwise lawfully held.
It is so ordered.
1. The Appellant herein was initially charged with 5 counts but was ultimately convicted and sentenced on 2 counts, namely;
i) Count II: Resisting arrest contrary to section 103(a) of the National Police Service Act; and
ii) Count III: Assault in resisting arrest contrary to section 253(a) of the Penal Code.
2. The particulars of the charge were that on 15 th May 2020 at Moi South Lake Road along Kedong Ranch area of Kongoni in Naivasha Sub County within Nakuru County, while being arrested for the offence of incitement to violence resisted to be arrested and assaulted No. 77515 PC David Mundia who was on patrol in the said area.
3. He was acquitted on the remaining counts.
4. Aggrieved by both the conviction and sentence, the appellant lodged this appeal and raised eight grounds of appeal , which can be condensed into the following broad issues: -
a) Whether the charges on which the appellant was convicted were incurably defective.
b) Whether the evidence adduced proved the offences beyond reasonable doubt.
c) Whether the trial court failed to consider the appellant’s defence.
d) Whether the sentence imposed was legal and proper.
5. As the first appellate court, this court is required to re-analyze and re-evaluate the evidence tendered before the trial court with a view to arriving at its own independent conclusions while bearing in mind the fact that it neither heard nor saw the witnesses testify.(See Okeno vs. Republic (1972) EA 32 )
6. A summary of the evidence presented before the trial court was as follows: -
7. PW1, Police Constable David Mundia, testified that on 15 th May 2020, he and other officers received information that a group of people had barricaded the road between Sopa Resort and Flamingo Flower Farm using stones and tyres while shouting the name of an organisation called “White Eagle.” Upon arrival at the scene with other officers, they found a crowd which scattered in different directions.
8. PW1 stated that the group’s chairman, the appellant herein, was violent when approached, forcing the officers to use necessary force to restrain him. In the process of arresting him, the appellant allegedly bit PW1 on the left middle finger, causing injury. With the assistance of colleagues, PW1 managed to handcuff the appellant and escort him to the patrol vehicle. The secretary of the group, Benson Riboi, was also arrested.
9. PW1 further testified that he booked the arrest in the Occurrence Book (OB), though he admitted that the investigation diary did not indicate the complainants or include photographs of the scene. He did not see the appellant holding any placard or T-shirt with the words “White Eagle,” nor did he observe social distancing or mask-wearing during the arrest. PW1 said he later received treatment at Naivasha Sub-County Hospital.
10. PW2 Inspector Raymond Wanjala, also based at Kongoni Police Station, corroborated PW1’s account. He stated that the officers responded to complaints that the road had been blocked by demonstrators. When the officers arrived at the scene in the company of the OCS, the group ran in different directions. According to PW2, as the appellant was being arrested, he resisted and bit PW1 on the left middle finger. He confirmed that the demonstrators had used stones to block the road and that the accused persons were known to the OCS. PW2 said the group was referred to as “White Eagle,” though he did not know whether they had a permit to demonstrate.
11. PW3, Ben Kuria , a clinical officer at Naivasha Sub-County Hospital, testified that he examined PW1 (aged 43 years) and filled a P3 form for him. He noted a cut wound on PW1’s ring finger , approximately 2 cm long, consistent with injury caused by a sharp object, and classified the degree of injury as “harm.” On cross-examination, he explained that the wound appeared to have been inflicted by a sharp instrument, not a blunt object, and confirmed he filled a similar P3 form for the appellant at a later date. PW3 noted that the P3 was filled four days after the alleged incident.
12. PW4 PC Edith Soita testified that at around 11:00 am on 15 th May 2020, she was informed of riots near Kedong Ranch. Together with the OCS and other officers, they proceeded to the scene, where they found many people protesting and using stones to block the road. She stated that the officers pursued the demonstrators, including the Appellant, who, in the process of arrest, bit PW1 on the left middle finger. She confirmed that they arrested both the Appellant and his co-accused Benson. On cross-examination, she admitted that although there was a crowd, she did not personally receive any complaint from the public. She did not witness whether the demonstrators were wearing masks, but noted that she did not see anything wrong with PW1 booking his own complaint.
13. PW5, Chief Inspector Shadrack Musau, the investigating officer, testified that he accompanied other officers to the scene after being informed that demonstrators had blocked the road and lit fires. Upon seeing the officers, the group scattered in different directions.
14. PW5 stated that the Appellant resisted arrest and bit PW1 on the left middle finger. He further testified that the accused persons violated COVID-19 protocols by failing to wear masks and keep social distance. He admitted, on cross-examination, that no exhibits (stones or tyres) were collected and that he saw the accused persons for the first time on the day of arrest. PW5 confirmed that PW1 was assigned to book the OB entry and that the group did not have a permit to demonstrate.
15. When placed on his defence, the Appellant testified that he was a fisherman and chairman of an organisation called “White Eagle,” and that Benson was the secretary. He stated that they had previously obtained permission from the OCS to conduct peaceful demonstrations regarding blocked access to Lake Naivasha. He claimed that on the material day, when they arrived for the demonstration, the police, including the OCS, immediately ordered his arrest without any just cause. He alleged that he was beaten by the officers, arrested, and subsequently taken to quarantine for two weeks. The appellant denied resisting arrest and denied biting PW1. He also insisted that he wore a mask and adhered to COVID-19 protocols. He maintained that he did not assault a police officer and that the charges were fabricated.
16. The Appeal was canvassed by way of written submissions.
Appellant’s Submissions
17. The appellant submitted that the charges were fatally defective because both counts stated that the appellant resisted arrest “for the offence of incitement to violence”, yet he was never charged with that offence, and no evidence of incitement was led.
18. It was the Appellant’s case that an arrest must be lawful , and that where the primary offence is absent, a charge of resisting arrest cannot stand. Authorities relied upon include Augustine Kirimi vs. Republic [2009] eKLR, John Nyaga Waruri v Republic [2019] eKLR, and Susan Nzilani Mutuku v Republic [2014] eKLR.
19. It was submitted that there was no proof that the appellant resisted arrest as PW1 testified that he arrested the appellant immediately and escorted him to the station.
20. The Appellant argued that the evidence on the assault charge was inconsistent as while PW1 and PW5 alleged the Appellant bit PW1’s middle finger, PW3 recorded a cut wound on the ring finger which was alleged to have been caused by a sharp object. The Appellant observed that the P3 form did not support the prosecution narrative, and that PW1’s conduct of booking his own report and issuing himself a P3 form cast doubt on the credibility of his claims.
21. The Appellant further submitted that his sworn defence denying resisting arrest and assault was not considered by the trial magistrate. He maintained that the conviction was not supported by evidence and that the sentence was undeserved.
Respondent’s Submissions
22. The Respondent submitted that any defect in the charge was minor and curable under Article 159(2)(d) of the Constitution which requires courts to administer justice without undue regard to technicalities.
23. It was the Respondent’s case that PW1 and PW2 gave credible and consistent evidence that the appellant resisted arrest and bit PW1’s finger. The Respondent argued that PW3 confirmed injuries on PW1’s finger which he assessed as harm.
24. It was submitted that the appellant fully participated in the trial and was not prejudiced by the form of the charge sheet and further, that the trial magistrate properly evaluated the prosecution’s case and rejected the appellant’s weak defence. According to the Respondent, the conviction and sentence were lawful and should be upheld.
25. I have already highlighted the issues for determination in this judgment at the point of highlighting the grounds of appeal.
Analysis and Determination
Whether the Charges Were Incurably Defective
26. It is instructive to note that while both counts II and III state that the Appellant resisted arrest “for the offence of incitement to violence contrary to section 96 of the Penal Code”, the Appellant was not charged with the offence of incitement to violence. No evidence of incitement was led by the Prosecution.
27. The jurisprudence on the offence of resisting arrest is clear that it is not a stand-alone offence but must relate to a lawful arrest for a disclosed offence. In Augustine Kirimi vs. Republic (supra) the High Court held that resisting arrest is not a stand-alone offence and must relate to a lawful arrest for a disclosed offence. This means that the offence of resisting arrest can only arise where there is a primary offence on which it is anchored.
28. In Susan Nzilani Mutuku case (supra) the court emphasized that where the accused was not being lawfully arrested for a valid offence, the charge of resisting arrest cannot arise.
29. Similarly, John Nyaga Waruri vs. Republic (supra) the court underscored that the arrest must be based on a legitimate underlying offence.
30. In the instant case, the charge sheet tethered the resisting-arrest charge to a non-existent primary offence. I find that this omission was not a mere technicality as it went to the very legality of the arrest.
31. I therefore find that the charge on Count II was incurably defective and that the appellant’s conviction on the said count cannot stand.
32. My further finding is that since Count III on alleged assault, in resisting arrest, also expressly stated that the assault occurred in resisting arrest for the offence of incitement to violence, the same defect similarly attaches to it. My take is that a defective foundational charge cannot sustain a dependent charge.
33. My above findings would have been sufficient to determine this appeal, but I am still minded to determine the issues of whether the charges were proved beyond reasonable doubt.
34. On count II of Resisting Arrest, I note that even if the charge was not defective, the evidence presented on the alleged resistance was inconsistent, contradictory and not supported by the events recorded in the OB. I say so because PW1 admitted that the Appellant was arrested immediately at the scene, escorted to the station without incident and booked in normally. I am unable to find that the Prosecution established that there was any active resistance to arrest.
35. Turning to the alleged assault when resisting arrest, the Prosecution’s case was that the Appellant bit PW1’s left middle finger. PW3 however recorded a cut wound on the left ring finger, not bite marks. The P3 form, on the other hand, indicated that the injury was caused by a sharp object, not a bite.
36. I further not that medical examination was conducted several days after the alleged incident and that no medical/treatment notes were produced to support PW1’s treatment. It was also quite confounding that PW1 issued a P3 form to himself thus raising more credibility concerns.
37. My take is that the above noted contradictions are material and weaken the prosecution’s case thereby leading to the irresistible conclusion that the evidence presented by the Prosecution did not meet the threshold of proof beyond reasonable doubt for either count.
The Defence
38. Turning to the issue of whether the trial court considered the Appellant’s evidence, I note that the Appellant gave sworn evidence stating that he never resisted arrest, was beaten by police and issued with a P3 form documenting injuries. He added that his arrest was politically motivated during a community demonstration.
39. It is however noteworthy that the trial court’s judgment, did not summarize the Appellant’s defence, did not analyse it or give any reasons for rejecting it. A perusal of the trial court’s judgment shows that the only time the Appellant’s evidence is mentioned in the analysis section is through a single sentence that: -
“The accused person denied resisting arrest.”
40. Article 50(2)(k) guarantees an accused person the right to have their defence considered and weighed. I find that the omission to analyse the Appellant’s evidence was a serious error and a denial of a fair trial.
Sentence
41. Having found that the conviction is unsustainable both in law and on evidence, the sentence automatically collapses.
Disposition
42. For the reasons that I have stated in this judgment, I find that the instant appeal is merited and I accordingly allow it in the following terms: -
a) The appeal succeeds in its entirety.
b) The convictions on Count II and Count III are hereby quashed .
c) The sentences imposed are hereby set aside .
d) The appellant shall be set at liberty forthwith , unless otherwise lawfully held.
It is so ordered.