(Appeal Against the Judgment of P. Biwott SPM in Ogembo Criminal case no 493 of 2023 dated 8.1.24 )
1. The Appellants were charged with offense of conspiracy to commit murder contrary to section 224 of the penal code at Ogembo Principal Magistrate ‘s court in PMCR NO. 493 of 2023. The particulars of the offence were that on 13th June, 2023 at Nyachogochogo, Nyamache Sub County within Kisii County, the appellants jointly conspired to kill Roseline Kerubo Kibwage by poisoning her maize. The trial court upon hearing both the prosecution and the defence found the Appellant’s guilty, convicted them and sentenced each of them to serve 7 years in prison.
2. Being dissatisfied with the decision of the trial court they appealed to this court vide a petitions of appeal dated 19th January, 2024. The appeals were based on the grounds that;
a) The learned Magistrate erred in law and in fact by convicting and sentencing the Appellants to 7 years in prison by failing to evaluate the law and evidence on record.
b) The learned Magistrate erred in law and in fact by convicting and sentencing the Appellants without taking into account the contradictory evidence given in court.
c) The learned Magistrate erred in law and in fact by failing to appreciate the law and evaluate the entire evidence tendered in court.
d) The learned Magistrate erred in law and in fact by dismissing the Appellants defense
e) The learned Magistrate erred in law and in fact by convicting and sentencing the Appellants without taking into account that the alleged offense was a framed to settle family feud.
f) The learned Magistrate erred in law and in fact by not appreciating the provision of section 169 of the Criminal procedure code.
.
3. Based on the above grounds the Appellant urged this court to allow the appeal, the Judgment of the trial court be set aside their conviction and sentence be quashed and the appellant’s be set at liberty.
4. This court on 16th October, 2023 directed that the Appeal dispose of the Appeal through written submissions. However despite the respondent indicate to be opposed to the Appeal, it did not file any submissions to the Appeal.
5. The learned counsel for the Appellant submitted that trial court disregarded section 169 of the criminal procedure code by not framing the issue for determination and not giving reasons for his judgment. He relied on the case Singh vs R Criminal Appeal No. 483, Court of Appeal of Eastern Africa and the case of R vs Edward Kirui (2014) eKLR. The learned counsel contended that the Judgment does not contain the points of determination and does not specify the offense of the law under which the Appellant is charged or convicted. He also contended that the learned magistrate did not analyze the ingredients of the offense and establish whether such ingredient were established.
6. The learned counsel also submitted that the appellants were not accorded a fair hearing given that from the proceedings language used during trial is not clear or whether they were afforded a translation to a language that they could understand better. He argued that the court denied them an opportunity to confirm whether she could file submissions. He contended therefore such omissions rendered the judgement a miscarriage of justice.
7. The learned counsel argued that the respondent did not prove the elements of the offense of conspiracy to commit a crime was not proved to the required standards. He claimed that the respondent only tendered evidence that there was animosity between the complainant and the accused person and that there was a previous case but could not tell who poisoned the flour and under what circumstances it was poisoned. He contended that there was no evidence that the two accused persons agreed to poison the flour since such agreement was key in establishing the offense. He also claimed that there was no evidence of communication between the Appellants and any other person regarding the murder of the complainant. he thus concluded that absence of any evidence as to who actually intended to commit murder and who actually acted in furtherance of such intention, there was a possibility of condemning an innocent person by association even in cases where the offense was committed. He relied in the case Nicholas shivachi Mboya and Joshua Litsululu Amutavi vs Republic. The learned counsel equally submitted that government chemist did not appear in court to explain his finding in his report.
ANALYSIS AND DETERMINATION
8. Being the first appellate court, this court has a duty to re- evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. The principle has been considered in various decisions of this court and those of the court of appeal. The leading authority on the subject is Okeno versus Republic (1972) E.A. 32.
9. In the said case, the court held that :-
“The duty of the 1st appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusions on that evidence. However, it must warn itself that it did not have the benefits of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu versus Republic (2010) while citing the case of Okeno versus Republic (Supra) stated as follows:-
“The duty of the first appellant court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts 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 bases of the law and evidence to satisfy itself on the correctness of the decision.”
10. The Court of Appeal further stated that-
“an appellant on a 1st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya versus Republic 1975 EA) 336 and to the appellate court’s own decision on the evidence. The appellate court must itself weight the conflicting evidence and draw its own conclusions. In doing so to must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s versus Sunday Post 1978 E.A 424.”
11. I have considered the proceedings before the trial court and the submissions by the parties and the issue that arises for determination is whether the prosecution established the offence of conspiracy to murder contrary to section 224 of the Penal Code to the required standard of proof beyond and reasonable doubt.
12. Section 224 of the Penal Code provides that:
“Any person who conspires with another person to kill any person whether that person is in Kenya or elsewhere, is guilty of a felony and is liable to imprisonment for fourteen years”.
13. Section 21 of the Penal provides that :-
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction
with one another, and in the prosecution of such purpose an offence is committed of such a nature that its
commission was a probable consequence of the prosecution of such purpose, each of them is deemed to
have committed the offence
14. Conspiracy is defined as an agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective and actions or conduct that furthers the agreement (see Black’s Law Dictionary, Ninth Edition).In Moses Kathiari Rukungu – Vs- Republic [2018] eKLR Majanja held as follows;
“…..In Archibold Criminal Pleadings Evidence and Practice, Sweet & Maxwell 2003 (Ps 2689) Paragraph 33-2) the definition of conspiracy is from Criminal Act 1977 of England which is defined as a situation where a person agrees with another person or persons that a course of conduct be pursued which, if the agreement is carried out in accordance with their intentions either will necessarily amount or involve the commission of any offence or offences by one or more of the parties to the agreement or would do so but for the existence of facts which render the commission of the offence or any offence impossible. The essential ingredient to thus prove the offence of conspiracy to commit a felony is that two or more people agree to put in effect a scheme whose ultimate aim would be the commission of a criminal offence. It will not matter that the criminal offence proposed to be done may be impossible to be undertaken. Proof of existence of conspiracy is generally a “matter of inference, decided from certain criminal acts of parties accused; done in the pursuance of an apparent criminal purpose between them”. Republic –vs- Brisac [1803] 4 East 164, 71 (as quoted at page 2692 Archibold paragraph 33 -11 (SUPR) (See Njenga and 2 others –Vs- Republic NKU HCCCRA NO. 163 of 2003 [2005] eKLR.”
15. From the above case it is outright that for the offence to be complete, the prosecution is required to establish that the Appellants had a common intention to play a part in furtherance of a criminal purpose.
16. In this instant case, PW1 claimed that on 10th January, 2023 she was in court over an assault case against the appellants in which she was he com-[lainant . She further testified that on 11th January, 2023 the appellants went to their home and asked her husband to give them money for school fees for their children but he did not give them. Later on 13th January, 2023 the 2nd accused person went back and asked for the fees but her husband once again declined to give her and she proceeded to threaten to harm her. The 1st Appellant was present but did not talk. . PW1 and her husband thereafter proceeded to the farm to pick tea.
17. While on their way to the farm they met Appellants and one Mellen . After harvesting tea they proceeded to deliver the same at the market center. On their way back home she met one Mellen who had a bag on her back. Mellen accused her of’ ‘’ eating ‘’her cows but she denied ever doing so. When she got home she decided to cook ugali. Unfortunately the ugali turned black and had a foul smell and thus she suspected that the same had been poisoned . When she looked at the flour she noted that same had black substance. Her child Marvin took the ugali outside. Unfortunately when the ugali was consumed by a hen it died on the spot. She stated that She had left her daughter Melvin (PW2) in the house when they left for the farm but the Appellants chased her from the house and appellants remained there .
18. She said that her husband went to the area chief to report the matter while she went to report the matter at the police station. The police retained part of the Ugali and the floor that remained. She stated that they suspected the accused persons for poisoning the ugali since they left them at home as they went to the farm and they chased away PW2 from the house.
19. On being cross-examined by 1st Appellant, she revealed that the 1st Appellant assaulted her in May 2022 and there was a pending case to that effect. She confirmed that she is not in talking terms with Perez Kerubo despite living in the same homestead. She stated that the house of Perez house is about 10 metres away from hers She stated that Perez was in the homestead but left when she saw them come from the farm. She stated that she tasted the ugali but spit it as it had a bad taste. She disclosed that the she got married to husband who was the appellant’s father in 2020 but the appellants were not happy with their marriage. She stated that the hen that ate the poison ugali belonged the 2nd appellant and that it started forming .
20. On cross examination by the 2nd Appellant she stated that the court was yet to determine the assault case. She reiterated that the 2nd Appellant went to their homestead on 11th January, 2023 to ask for school fees for her children from her husband but he declined. She stated that the 2nd Appellant remained in the homestead until 13th January, 2024. She also stated that while in the farm PW2 rushed to them and informed them that she had been chased from the house by the Appellants. She stated that when returned from the farm she saw Mellen and the Appellants, leave the homestead. She stated that when they chased PW2, she the house open and lit. She stated that the 2nd Appellant has never gone to her to seek reconciliation for assaulting her and that they all had kept threatening to kill her if they were to meet away from the public . .
21. PW2 is Melvin Moraa Bichage, the Appellants step-sister who about 13 years old.. She told the court that on 13th January, 2023 she was at home together with the Appellants and her mother (Pw1) and her step father . Her mother and step father went to the farm to pick tea and left her washing utensils. The two Appellants entered into the house insulted her by telling her that Mr. Kibwage (her step father ) was not her father and asked her chased her and told her to go look for her father. She left appellants in the house and rushed to the farm to inform her mother . When they returned, the appellants left on seeing them. When her mother attempted to cook ugali it turned black. They suspected that the flour must have been poisoned. On checking on the floor they found that the same had black substance. She stated that a chicken ate the black ugali and died on the spot. He mother reported to the police and took the ugali and flour to them. He stated that her step father was in the bathroom when her mother discovered that flour had been poisoned.
22. When cross-examined by the 1st Appellant she stated that the homestead has two houses. She said that she left the Appellant in her mothers house. Also that she was chased away by appellants and Mellen .. Further, she stated that her mother took poisoned flour and ugali to the police station. She told the court that 1st appellant was against her mother because she had earlier assaulted her using a panga.
23. When cross-examined by the 2nd accused person she stated that on 13th January, 2023, the 2nd accused person went her mother’s house carrying something which was covered in her hand . She stated that Accused no. 2 arrived in the house in the company of the 1st Appellant and Mellen. She insisted that she three told her that their father was not her biological father. She went on to say that she could not find the padlock and thus she left for the home leaving the house open. She stated that when they found the flour poisoned they concluded that her step sisters are the ones who had poisoned the flour as she left them in the home . She said that the Appellants were abusive to her, her mother and step father and that they were not in good terms with their father.
24. PW3 was the investigating officer in the matter. He testified that on 13th January, 2023, he received PW1’s report on the poisoning of flour. He visited the scene and saw the dead chicken. He collected the ugali and the flours and forwarded their samples to the government chemist for examination and the samples were found to contain rat poison. He produced the flour and memo and analyst report as exhibits. He stated that PW2 placed the two accused persons and another one who is at large on spot. He stated that since the Appellants had a grudge with PW1 and had an assault case pending in court, there were sufficient reason to believe that they two conspired to kill the complainant and her husband .
25. When put on their defense the 1st Appellant denied the allegations against her as being false. She stated that the complainant was a stranger to her and that she only met her in court when she was eventually arrested. she denied that the complainant was married to her father She stated that on 13th January, 2023 she was at her parents home but denied going to her step mothers ’s house. She stated she on that day went to the market and returned back home at 5:00 and there was no complaint against her. She stated that she only learned of the 15th January, 2023 when she was arrested and the case fabricated against her.
26. The 2nd Appellant on her part stated that she is a casual worker at KYC in Nairobi and that she doesn’t stay at home she stated that on 13th January, 2023 she was not at home. She testified that on 10th March, 2023 she had come to court for another case against the complainant she was arrested on allegations of poisoning that she was not aware of. She state heard all what the witnesses had stated but insisted that on 13th January, 2023 she was not at Nyachogochogo village.
When cross-examined by the prosecution counsel she stated that she visits her parents home when need arises. She claimed that she attended the assault case from Nairobi but could not produce a receipt for the travel. She revealed that she later came to learn that her father had been killed but claimed that by that time she was in hospital giving birth and as such did not know who killed him.
Also that she was in good terms with father she did not recognize the complainant herein as his wife.
27. Upon hearing both parties the court delivered it’s Judgment dated 8.1.24 which is subject of this appeal . They were convicted them for committing the offense and sentenced each of them to serve 7 years imprisonment .
28. On the issue identification prosecutions case is that appellants conspired to kill PW1 . This was supported by Pw1 who said that on the material day she was cooking ugali when she noted a foul smell and she tasted abit of it and spit it as it had a strange taste . She a gave a chicken some of the ugali and it died . Theyu reported the case to the police station and accused were arrested and charged. She told the court that appellants wanted her out of the way as they had not accepted her marriage to their father. Also that they were bitter with her as she had pressed assault charged against them in Ogembo court . PW2 told the court how on the appellants went to her mother’s house after her parents left to harvest tea on the material day roughed her up telling her that she was not a biological daughter of their father and chased her away. She left them in the house as she went to report to her parents and that PW1 returned and as she was cooking she realised that the ugali had been poisoned . The 1st appellant denied the charge and denied knowing pw1 and poisoning her four . She said she was arrested when she went for a court case at Ogembo law courts . The 2nd appellant raised a defence of alibi but the same emerged for the 1st time during defence .The trial court who had a chance to see demeanor of the witnesses observed that PW2 a honest witness whose testimony was believable. PW2 also testified that appellants jointly entered into the house, abused her and chased her from the house. The trial court dismissed it for having been raise too late in the day and being an after thought. It is trite law that a defence of alibi ought to be raise early enough to allow prosecution till to investigate it . The burden of prosecution to prove their case beyond any reasonable doubt does not change where defence of alibi has been raised. I agree with the trial magistrate that the said alibi was an after thought as it was raised at the tail end of the procedings . The evidence of PW2 was firm and consistent. And PW3 investigated the case and found that indeed the appellants were at the scene at the material time. I find that appellants were properly put at the scene.
29. On whether accused conspired to commit the felony of attempted murder , While determining that the two accused persons had conspired to eliminate complainant the trial court observed as follows;
“Accused person 1 and 2 in the company of a third person at large were at PW1’s house. By chasing the accused person from the house, the accused wanted to execute their mission without being seen. The reasonable conclusion is that they were out to eliminate PW1 and husband as witnesses in the assault case the faced in court.
They had malicious thought. They acted in 3 to execute their malice. They put poison on PW1’s flour. They conspired and chased out PW2 from the house where she was washing dishes. PW2 was an honest eye witness. She placed the two accused persons at scene of crime. PW1 also saw the witnesses exiting the scene. The alibi raised by accused 2 cannot stand.”
30. As was held in the case of Moses Kathiari Rukungu – Vs- Republic(supra) proof of existence of conspiracy is generally a matter of inference, decided from certain criminal acts of parties accused; done in the pursuance of an apparent criminal purpose between them.
31. The investigating officer PW3 who found that appellants wanted to kill complainant, PW2 and her husband as they were against the marriage of their father to PW1. This evidence was not shaken during cross-examination . Further that the 2nd Appellant confirmed that they had were not in good terms with the complainant as they did not approve of her marriage to their further.. The entry of the Appellants into the complainants house in her absence which was followed by them chasing PW2 from the house coupled with the grudge the two had against the complaint clearly leads to an inference that the two conspired to poison the flour of PW1.
32. The appellant’s learned counsel argued that the trial court did not comply the requirements set under section 169 of the criminal procedure code. Section 169 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) provides as follows:
169(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, shall contain the point or points for determination, the decision thereon and the reasons, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which,the accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal, the judgment shall state the offence which the accused person is acquitted, and shall direct that he be set at liberty.
33. The Court of appeal in the case of Hawaga Joseph Ansanga Ondiasa Vs Criminal Appeal No. 84 of 2001 held as follows:
“It is true that the trial magistrate may be criticized for the perfunctory way in which he expressed himself in his judgment. However, even if we were to hold that he did not prepare his judgment strictly in accordance with section 169 of the Criminal Procedure, this would not, of itself mean that the conviction of the appellant was wrong or is to be invalidated.”
34. And in the case of Samwiri Senyange V R [1953] 20 the Eastern African Court of Appeal stated as follows:
“Where there had not been a strict compliance with the provisions of Sections 168 and 169 of the Criminal Procedure Code that will not necessarily invalidate a conviction and the court will entertain an appeal on its merit in such a case if it can be done with justice to the parties.”
35. From the above two cases it is outright that the failure to comply with Section 169 (1) does not render the judgment a nullity . A technical failure of this nature does not vitiate the trial particularly because the evidence on record is sufficient to support the conviction for the offence of conspiracy to commit murder as I have already determined hereinabove.
36. The learned counsel has equally submitted that Applicant was not accorded a fair trial. To support his argument he claims that the language that was used was not stated and that there was a likelihood that the appellants who were unrepresented were not able to understand the proceeding. He also argued that the appellant did not grant the appellants a right to confirm whether they were going to file written submissions in support of their case. I find that from the proceedings the language that was used was Kiswahili which was well understood by the Appellants who were capable of cross-examining witnesses. They have also not denied the record of cross-examination. On the issue of the court not informing the accused person that he had a right to file submissions to support her case, this is not amongst the rights to a fair hearing under Article 50 that obligate a court of law to remind accused persons to file submissions to support their case. In any case learned counsel has not explained what prejudice the Appellants suffered for not being reminded that they could file their submissions to support their case.
37. On the sentence of 7 years imprisonment, the appellants faulted the trial magistrate saying it was harsh . The state supported the sentence saying it was reasonable as Section 224 provides for a sentence of 14 years .The trial magistrate rightly took into account mitigation and the nature of the offence and the fact that had the appellants succeeded in their plan then 3 lives would have bee taken away. Considering the serious nature of the offence , its circumstances and the prevalence of the offence within the jurisdiction of this court , I find that the sentence was not excessive .
CONCLUSION
38. For the reasons stated above, I find that this appeals are without merit . The conviction and sentence are upheld . The Appeals are dismissed.
1. The Appellants were charged with offense of conspiracy to commit murder contrary to section 224 of the penal code at Ogembo Principal Magistrate ‘s court in PMCR NO. 493 of 2023. The particulars of the offence were that on 13th June, 2023 at Nyachogochogo, Nyamache Sub County within Kisii County, the appellants jointly conspired to kill Roseline Kerubo Kibwage by poisoning her maize. The trial court upon hearing both the prosecution and the defence found the Appellant’s guilty, convicted them and sentenced each of them to serve 7 years in prison.
2. Being dissatisfied with the decision of the trial court they appealed to this court vide a petitions of appeal dated 19th January, 2024. The appeals were based on the grounds that;
a) The learned Magistrate erred in law and in fact by convicting and sentencing the Appellants to 7 years in prison by failing to evaluate the law and evidence on record.
b) The learned Magistrate erred in law and in fact by convicting and sentencing the Appellants without taking into account the contradictory evidence given in court.
c) The learned Magistrate erred in law and in fact by failing to appreciate the law and evaluate the entire evidence tendered in court.
d) The learned Magistrate erred in law and in fact by dismissing the Appellants defense
e) The learned Magistrate erred in law and in fact by convicting and sentencing the Appellants without taking into account that the alleged offense was a framed to settle family feud.
f) The learned Magistrate erred in law and in fact by not appreciating the provision of section 169 of the Criminal procedure code.
.
3. Based on the above grounds the Appellant urged this court to allow the appeal, the Judgment of the trial court be set aside their conviction and sentence be quashed and the appellant’s be set at liberty.
4. This court on 16th October, 2023 directed that the Appeal dispose of the Appeal through written submissions. However despite the respondent indicate to be opposed to the Appeal, it did not file any submissions to the Appeal.
5. The learned counsel for the Appellant submitted that trial court disregarded section 169 of the criminal procedure code by not framing the issue for determination and not giving reasons for his judgment. He relied on the case Singh vs R Criminal Appeal No. 483, Court of Appeal of Eastern Africa and the case of R vs Edward Kirui (2014) eKLR. The learned counsel contended that the Judgment does not contain the points of determination and does not specify the offense of the law under which the Appellant is charged or convicted. He also contended that the learned magistrate did not analyze the ingredients of the offense and establish whether such ingredient were established.
6. The learned counsel also submitted that the appellants were not accorded a fair hearing given that from the proceedings language used during trial is not clear or whether they were afforded a translation to a language that they could understand better. He argued that the court denied them an opportunity to confirm whether she could file submissions. He contended therefore such omissions rendered the judgement a miscarriage of justice.
7. The learned counsel argued that the respondent did not prove the elements of the offense of conspiracy to commit a crime was not proved to the required standards. He claimed that the respondent only tendered evidence that there was animosity between the complainant and the accused person and that there was a previous case but could not tell who poisoned the flour and under what circumstances it was poisoned. He contended that there was no evidence that the two accused persons agreed to poison the flour since such agreement was key in establishing the offense. He also claimed that there was no evidence of communication between the Appellants and any other person regarding the murder of the complainant. he thus concluded that absence of any evidence as to who actually intended to commit murder and who actually acted in furtherance of such intention, there was a possibility of condemning an innocent person by association even in cases where the offense was committed. He relied in the case Nicholas shivachi Mboya and Joshua Litsululu Amutavi vs Republic. The learned counsel equally submitted that government chemist did not appear in court to explain his finding in his report.
ANALYSIS AND DETERMINATION
8. Being the first appellate court, this court has a duty to re- evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. The principle has been considered in various decisions of this court and those of the court of appeal. The leading authority on the subject is Okeno versus Republic (1972) E.A. 32.
9. In the said case, the court held that :-
“The duty of the 1st appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusions on that evidence. However, it must warn itself that it did not have the benefits of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu versus Republic (2010) while citing the case of Okeno versus Republic (Supra) stated as follows:-
“The duty of the first appellant court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts 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 bases of the law and evidence to satisfy itself on the correctness of the decision.”
10. The Court of Appeal further stated that-
“an appellant on a 1st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya versus Republic 1975 EA) 336 and to the appellate court’s own decision on the evidence. The appellate court must itself weight the conflicting evidence and draw its own conclusions. In doing so to must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s versus Sunday Post 1978 E.A 424.”
11. I have considered the proceedings before the trial court and the submissions by the parties and the issue that arises for determination is whether the prosecution established the offence of conspiracy to murder contrary to section 224 of the Penal Code to the required standard of proof beyond and reasonable doubt.
12. Section 224 of the Penal Code provides that:
“Any person who conspires with another person to kill any person whether that person is in Kenya or elsewhere, is guilty of a felony and is liable to imprisonment for fourteen years”.
13. Section 21 of the Penal provides that :-
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction
with one another, and in the prosecution of such purpose an offence is committed of such a nature that its
commission was a probable consequence of the prosecution of such purpose, each of them is deemed to
have committed the offence
14. Conspiracy is defined as an agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective and actions or conduct that furthers the agreement (see Black’s Law Dictionary, Ninth Edition).In Moses Kathiari Rukungu – Vs- Republic [2018] eKLR Majanja held as follows;
“…..In Archibold Criminal Pleadings Evidence and Practice, Sweet & Maxwell 2003 (Ps 2689) Paragraph 33-2) the definition of conspiracy is from Criminal Act 1977 of England which is defined as a situation where a person agrees with another person or persons that a course of conduct be pursued which, if the agreement is carried out in accordance with their intentions either will necessarily amount or involve the commission of any offence or offences by one or more of the parties to the agreement or would do so but for the existence of facts which render the commission of the offence or any offence impossible. The essential ingredient to thus prove the offence of conspiracy to commit a felony is that two or more people agree to put in effect a scheme whose ultimate aim would be the commission of a criminal offence. It will not matter that the criminal offence proposed to be done may be impossible to be undertaken. Proof of existence of conspiracy is generally a “matter of inference, decided from certain criminal acts of parties accused; done in the pursuance of an apparent criminal purpose between them”. Republic –vs- Brisac [1803] 4 East 164, 71 (as quoted at page 2692 Archibold paragraph 33 -11 (SUPR) (See Njenga and 2 others –Vs- Republic NKU HCCCRA NO. 163 of 2003 [2005] eKLR.”
15. From the above case it is outright that for the offence to be complete, the prosecution is required to establish that the Appellants had a common intention to play a part in furtherance of a criminal purpose.
16. In this instant case, PW1 claimed that on 10th January, 2023 she was in court over an assault case against the appellants in which she was he com-[lainant . She further testified that on 11th January, 2023 the appellants went to their home and asked her husband to give them money for school fees for their children but he did not give them. Later on 13th January, 2023 the 2nd accused person went back and asked for the fees but her husband once again declined to give her and she proceeded to threaten to harm her. The 1st Appellant was present but did not talk. . PW1 and her husband thereafter proceeded to the farm to pick tea.
17. While on their way to the farm they met Appellants and one Mellen . After harvesting tea they proceeded to deliver the same at the market center. On their way back home she met one Mellen who had a bag on her back. Mellen accused her of’ ‘’ eating ‘’her cows but she denied ever doing so. When she got home she decided to cook ugali. Unfortunately the ugali turned black and had a foul smell and thus she suspected that the same had been poisoned . When she looked at the flour she noted that same had black substance. Her child Marvin took the ugali outside. Unfortunately when the ugali was consumed by a hen it died on the spot. She stated that She had left her daughter Melvin (PW2) in the house when they left for the farm but the Appellants chased her from the house and appellants remained there .
18. She said that her husband went to the area chief to report the matter while she went to report the matter at the police station. The police retained part of the Ugali and the floor that remained. She stated that they suspected the accused persons for poisoning the ugali since they left them at home as they went to the farm and they chased away PW2 from the house.
19. On being cross-examined by 1st Appellant, she revealed that the 1st Appellant assaulted her in May 2022 and there was a pending case to that effect. She confirmed that she is not in talking terms with Perez Kerubo despite living in the same homestead. She stated that the house of Perez house is about 10 metres away from hers She stated that Perez was in the homestead but left when she saw them come from the farm. She stated that she tasted the ugali but spit it as it had a bad taste. She disclosed that the she got married to husband who was the appellant’s father in 2020 but the appellants were not happy with their marriage. She stated that the hen that ate the poison ugali belonged the 2nd appellant and that it started forming .
20. On cross examination by the 2nd Appellant she stated that the court was yet to determine the assault case. She reiterated that the 2nd Appellant went to their homestead on 11th January, 2023 to ask for school fees for her children from her husband but he declined. She stated that the 2nd Appellant remained in the homestead until 13th January, 2024. She also stated that while in the farm PW2 rushed to them and informed them that she had been chased from the house by the Appellants. She stated that when returned from the farm she saw Mellen and the Appellants, leave the homestead. She stated that when they chased PW2, she the house open and lit. She stated that the 2nd Appellant has never gone to her to seek reconciliation for assaulting her and that they all had kept threatening to kill her if they were to meet away from the public . .
21. PW2 is Melvin Moraa Bichage, the Appellants step-sister who about 13 years old.. She told the court that on 13th January, 2023 she was at home together with the Appellants and her mother (Pw1) and her step father . Her mother and step father went to the farm to pick tea and left her washing utensils. The two Appellants entered into the house insulted her by telling her that Mr. Kibwage (her step father ) was not her father and asked her chased her and told her to go look for her father. She left appellants in the house and rushed to the farm to inform her mother . When they returned, the appellants left on seeing them. When her mother attempted to cook ugali it turned black. They suspected that the flour must have been poisoned. On checking on the floor they found that the same had black substance. She stated that a chicken ate the black ugali and died on the spot. He mother reported to the police and took the ugali and flour to them. He stated that her step father was in the bathroom when her mother discovered that flour had been poisoned.
22. When cross-examined by the 1st Appellant she stated that the homestead has two houses. She said that she left the Appellant in her mothers house. Also that she was chased away by appellants and Mellen .. Further, she stated that her mother took poisoned flour and ugali to the police station. She told the court that 1st appellant was against her mother because she had earlier assaulted her using a panga.
23. When cross-examined by the 2nd accused person she stated that on 13th January, 2023, the 2nd accused person went her mother’s house carrying something which was covered in her hand . She stated that Accused no. 2 arrived in the house in the company of the 1st Appellant and Mellen. She insisted that she three told her that their father was not her biological father. She went on to say that she could not find the padlock and thus she left for the home leaving the house open. She stated that when they found the flour poisoned they concluded that her step sisters are the ones who had poisoned the flour as she left them in the home . She said that the Appellants were abusive to her, her mother and step father and that they were not in good terms with their father.
24. PW3 was the investigating officer in the matter. He testified that on 13th January, 2023, he received PW1’s report on the poisoning of flour. He visited the scene and saw the dead chicken. He collected the ugali and the flours and forwarded their samples to the government chemist for examination and the samples were found to contain rat poison. He produced the flour and memo and analyst report as exhibits. He stated that PW2 placed the two accused persons and another one who is at large on spot. He stated that since the Appellants had a grudge with PW1 and had an assault case pending in court, there were sufficient reason to believe that they two conspired to kill the complainant and her husband .
25. When put on their defense the 1st Appellant denied the allegations against her as being false. She stated that the complainant was a stranger to her and that she only met her in court when she was eventually arrested. she denied that the complainant was married to her father She stated that on 13th January, 2023 she was at her parents home but denied going to her step mothers ’s house. She stated she on that day went to the market and returned back home at 5:00 and there was no complaint against her. She stated that she only learned of the 15th January, 2023 when she was arrested and the case fabricated against her.
26. The 2nd Appellant on her part stated that she is a casual worker at KYC in Nairobi and that she doesn’t stay at home she stated that on 13th January, 2023 she was not at home. She testified that on 10th March, 2023 she had come to court for another case against the complainant she was arrested on allegations of poisoning that she was not aware of. She state heard all what the witnesses had stated but insisted that on 13th January, 2023 she was not at Nyachogochogo village.
When cross-examined by the prosecution counsel she stated that she visits her parents home when need arises. She claimed that she attended the assault case from Nairobi but could not produce a receipt for the travel. She revealed that she later came to learn that her father had been killed but claimed that by that time she was in hospital giving birth and as such did not know who killed him.
Also that she was in good terms with father she did not recognize the complainant herein as his wife.
27. Upon hearing both parties the court delivered it’s Judgment dated 8.1.24 which is subject of this appeal . They were convicted them for committing the offense and sentenced each of them to serve 7 years imprisonment .
28. On the issue identification prosecutions case is that appellants conspired to kill PW1 . This was supported by Pw1 who said that on the material day she was cooking ugali when she noted a foul smell and she tasted abit of it and spit it as it had a strange taste . She a gave a chicken some of the ugali and it died . Theyu reported the case to the police station and accused were arrested and charged. She told the court that appellants wanted her out of the way as they had not accepted her marriage to their father. Also that they were bitter with her as she had pressed assault charged against them in Ogembo court . PW2 told the court how on the appellants went to her mother’s house after her parents left to harvest tea on the material day roughed her up telling her that she was not a biological daughter of their father and chased her away. She left them in the house as she went to report to her parents and that PW1 returned and as she was cooking she realised that the ugali had been poisoned . The 1st appellant denied the charge and denied knowing pw1 and poisoning her four . She said she was arrested when she went for a court case at Ogembo law courts . The 2nd appellant raised a defence of alibi but the same emerged for the 1st time during defence .The trial court who had a chance to see demeanor of the witnesses observed that PW2 a honest witness whose testimony was believable. PW2 also testified that appellants jointly entered into the house, abused her and chased her from the house. The trial court dismissed it for having been raise too late in the day and being an after thought. It is trite law that a defence of alibi ought to be raise early enough to allow prosecution till to investigate it . The burden of prosecution to prove their case beyond any reasonable doubt does not change where defence of alibi has been raised. I agree with the trial magistrate that the said alibi was an after thought as it was raised at the tail end of the procedings . The evidence of PW2 was firm and consistent. And PW3 investigated the case and found that indeed the appellants were at the scene at the material time. I find that appellants were properly put at the scene.
29. On whether accused conspired to commit the felony of attempted murder , While determining that the two accused persons had conspired to eliminate complainant the trial court observed as follows;
“Accused person 1 and 2 in the company of a third person at large were at PW1’s house. By chasing the accused person from the house, the accused wanted to execute their mission without being seen. The reasonable conclusion is that they were out to eliminate PW1 and husband as witnesses in the assault case the faced in court.
They had malicious thought. They acted in 3 to execute their malice. They put poison on PW1’s flour. They conspired and chased out PW2 from the house where she was washing dishes. PW2 was an honest eye witness. She placed the two accused persons at scene of crime. PW1 also saw the witnesses exiting the scene. The alibi raised by accused 2 cannot stand.”
30. As was held in the case of Moses Kathiari Rukungu – Vs- Republic(supra) proof of existence of conspiracy is generally a matter of inference, decided from certain criminal acts of parties accused; done in the pursuance of an apparent criminal purpose between them.
31. The investigating officer PW3 who found that appellants wanted to kill complainant, PW2 and her husband as they were against the marriage of their father to PW1. This evidence was not shaken during cross-examination . Further that the 2nd Appellant confirmed that they had were not in good terms with the complainant as they did not approve of her marriage to their further.. The entry of the Appellants into the complainants house in her absence which was followed by them chasing PW2 from the house coupled with the grudge the two had against the complaint clearly leads to an inference that the two conspired to poison the flour of PW1.
32. The appellant’s learned counsel argued that the trial court did not comply the requirements set under section 169 of the criminal procedure code. Section 169 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) provides as follows:
169(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, shall contain the point or points for determination, the decision thereon and the reasons, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which,the accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal, the judgment shall state the offence which the accused person is acquitted, and shall direct that he be set at liberty.
33. The Court of appeal in the case of Hawaga Joseph Ansanga Ondiasa Vs Criminal Appeal No. 84 of 2001 held as follows:
“It is true that the trial magistrate may be criticized for the perfunctory way in which he expressed himself in his judgment. However, even if we were to hold that he did not prepare his judgment strictly in accordance with section 169 of the Criminal Procedure, this would not, of itself mean that the conviction of the appellant was wrong or is to be invalidated.”
34. And in the case of Samwiri Senyange V R [1953] 20 the Eastern African Court of Appeal stated as follows:
“Where there had not been a strict compliance with the provisions of Sections 168 and 169 of the Criminal Procedure Code that will not necessarily invalidate a conviction and the court will entertain an appeal on its merit in such a case if it can be done with justice to the parties.”
35. From the above two cases it is outright that the failure to comply with Section 169 (1) does not render the judgment a nullity . A technical failure of this nature does not vitiate the trial particularly because the evidence on record is sufficient to support the conviction for the offence of conspiracy to commit murder as I have already determined hereinabove.
36. The learned counsel has equally submitted that Applicant was not accorded a fair trial. To support his argument he claims that the language that was used was not stated and that there was a likelihood that the appellants who were unrepresented were not able to understand the proceeding. He also argued that the appellant did not grant the appellants a right to confirm whether they were going to file written submissions in support of their case. I find that from the proceedings the language that was used was Kiswahili which was well understood by the Appellants who were capable of cross-examining witnesses. They have also not denied the record of cross-examination. On the issue of the court not informing the accused person that he had a right to file submissions to support her case, this is not amongst the rights to a fair hearing under Article 50 that obligate a court of law to remind accused persons to file submissions to support their case. In any case learned counsel has not explained what prejudice the Appellants suffered for not being reminded that they could file their submissions to support their case.
37. On the sentence of 7 years imprisonment, the appellants faulted the trial magistrate saying it was harsh . The state supported the sentence saying it was reasonable as Section 224 provides for a sentence of 14 years .The trial magistrate rightly took into account mitigation and the nature of the offence and the fact that had the appellants succeeded in their plan then 3 lives would have bee taken away. Considering the serious nature of the offence , its circumstances and the prevalence of the offence within the jurisdiction of this court , I find that the sentence was not excessive .
CONCLUSION
38. For the reasons stated above, I find that this appeals are without merit . The conviction and sentence are upheld . The Appeals are dismissed.