The Accused persons in the trial court were charged with the offence of assault causing actual bodily harm contrary to Section 234 of the Penal Code in count 1 and the offence of malicious damage to property contrary to Section 339(1) of the Penal Code in Count 2. They were convicted in both counts and sentenced to serve 2 years and 6 month imprisonment respectively to run concurrently.
The particulars to count 1 were that the Accused persons on the 5th Day of April 2023 at arund07.00hrs in Kegochi Sub-Location in Nyamache Sub-County within Kisii County jointly willfully and unlawfully assaulted Lydia Kerubo thereby occasioning her actual bodily harm.
Particulars to the 2nd Count were that the Accused persons on the 5th Day of April 2023 at arund07.00hrs in Kegochi Sub-Location in Nyamache Sub-County within Kisii County jointly willfully and unlawfully damaged a wooden bed valued at Kshs.18500 the property of Lydia Nyaboke.
Being aggrieved by the conviction and sentence the Appellants preferred Petition of Appeal dated 9th November 2023 on the following grounds: In the Appellant’s submissions filed on 20th September 2024 he did give additional grounds to the effect that:
- The trial Court erred in both law and fact in finding and/or holding that the Appellants were guilty of the offence s charged in the 2 counts when the prosecution had not established guilt on the required standard of proof which is beyond reasonable doubt.
- That the trial Court showed open bias against the accused persons, applied an inquisitorial approach during the trial thus prejudicing the Appellants contrary to the tenets of fair trial as provided under the Constitution.
- That the Trial Magistrate erred in both law and facts in analyzing and/or evaluating the Respondent’s evidence separately, forming a considered opinion/impression thereof and then laying the burden of disproving and/or dispelling the pre-meditated impression upon the Appellants contrary to the established principle in criminal law which casts the burden of proof upon the Respondent.
- THAT the learned Trial Magistrate failed to approach the entire trial of the Appellants with an impartial judicial mind and preserving the Appellants as guilty contrary to the well protected right of presumption of innocence as set out in the Constitution.
- THAT the learned Trial Magistrate erred in law in failing to consider and/or disregarding the Appellants’ submissions and thus arrived at a conclusion contrary to law and weight of the evidence on record.
- THAT the Learned Trial Magistrate failed to take into account the discrepancies, insufficiencies and inconsistencies in the evidence tendered by the Prosecution.
- THAT the sentence meted against the Appellants was overly excessive and contrary to the well-established jurisprudence as set out in the various authorities which were supplied to the Trial Magistrate but were however ignored.
- THAT overall, the conviction and sentence of the Appellants was unfair and was founded on a trial which was marred with procedural lapses.
It was proposed to the court for orders that :-
- The appeal be allowed and judgment, conviction and sentence dated 2/11/2023 be set aside, varied and/or quashed
- Consequently the Appellants be set at liberty forthwith.
The prosecution’s case was tendered by 3 witnesses. PW1 the Complainant herein testified that on 5/4/2023 she was at home at 7.30 am when she saw the 3 Appellants and that Ronald hit her with a stick and they were joined by 2nd and 3rd Appellants who hit her with sticks on the hand and back. That she screamed for help but the Appellants chased away those who went to rescue her. PW1 said the assailants entered her house and broke her bed and other items. The Complainant said that her husband was present and was standing there. She was treated at Nyamache Hospital and referred to Kisii Teaching and Referral Hospital. PW1 identified treatment Notes and P3 form which was duly filled EXP1 and 2. She said that the Appellants were brother and sisters to her husband.
In cross examination PW1 said that the Appellants attacked her as her husband watched. She denied that it is her husband who attacked her.
PW2 Alex Mwangati testified that he was at home on 5/4/2023 at 7.50am when he heard screams at PW1’s home. That when he ran to go and find out what was happening he found PW1 bleeding. That when he inquired PW1 told her that Ronald had hit her. Pw2 said he found Rosemary 3rd Appellant and Josephine 2nd Appellant armed with sticks. That Ronald broke door to Complainant’s house and 2ND and 3rd Appellants were removing things. PW2 said 1st Appellant broke PW1’s bed and door. He said PW1’s husband was just standing there.
PW3 Mando Ongeri Nathan the Clinical Officer at Nyamache Hospital testified that he examined the Complainant herein on 5/4/2023 for alleged assault by persons known to her. That the Complainant had lacerated wounds on the head and swollen upper limbs. That the wounds were cleaned and dressed. That the Complainant went for X-Ray and Treatment Notes and P3 were issued and filled-Ex P 1 & 2. He said the Complainant gave history of having been hit with a tree branch.
When the Appellants were placed on defense they all gave unsworn statements and 1st Appellant said that the Complainant was wife to his brother and that she had fought with her husband Thomas Asuku Mogeni and he did not intervene. He said the Complainant framed him because they are in good terms.He said it is the Complainant’s husband who damaged her door.
The 2nd Appellant Josephine Kwamboka Mogeni also said that the Complainant was her brother’s wife and that she fought with her husband but she did not involve herself and she did not find her at home.
The 3rd Appellant Rosemary Kemunto Mogeni said that she did not assault the Complainant and she did not damage her bed.She said the Complainant framed her because they do not agree.
This appeal was heard by way of written submissions.
In the Appellants’ submissions dated 22nd October 2024 it was argued that there was doubt in the Respondent’s evidence in the trial court and the same could not have been relied upon to convict the Appellants. The Appellants’ Counsel cited and relied on the holding in Philip Muiruri Ndarugu V Republic [2016] Eklr in which the Canadian case of R v Lifchus was quoted with approval as follows;-
“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. …….the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt....”
It was further submitted that doubt should be based on reason and common sense as well as evidence and not sympathy or prejudice. That even where the court believes the accused is guilty there must be sufficient evidence to convict.
The holding in JMN V Republic (Criminal Appeal E017of 2021) [2022] KEHC 279(KLR) (7 April 2022). Was relied on to support the position that;
“To me, the defence raised by the appellant and the complainant’s attempt to dissociate herself from the charges, raises reasonable doubts on the prosecution case. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge. This is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.10Duhaime, Lloyd, Legal Definition of Balance of Probabilities, Duhaime’s Criminal Law Dictionary.
I find that there were reasonable grounds for creating reasonable doubts as to the guilty of the accused. The conviction was supported by very weak evidence and/or it went against the weight of the evidence. Our system of justice is deeply concerned that no person who is innocent of a crime ought to be convicted of it. In order to avoid that, a court must consider all the evidence with great care, especially when it is the only evidence because the law is not so much concerned with the number of witnesses called as with the quality of the testimony given. A guilty verdict is permitted, however, only if the evidence is of sufficient quality to convince the court beyond a reasonable doubt that all the elements of the charged crime have been proven and that the evidence irresistibly points to the accused and that the evidence is both truthful and accurate.”
In conclusion the Appellant argued that the court was under duty to enforce and uphold justice. That the right to fair trial is meant to serve the Appellants and the ought to be impartial and not show bias towards any party. In this case it was submitted that the Trial Magistrate was biased in its finding and the rules of natural justice were disregarded.
It was also submitted that the Trial Magistrate erred in law and fact by convicting the Appellants in the absence of the testimony of a crucial witness namely the investigating officer who could have shed light into the case as to what basis the Appellants were charged.
The holdings in Republic V Cliff Macharia Njeri [2017] eKLR and SC V Republic [2018] eKLR were relied on by the Appellants’ Counsel in this respect and the court was called upon to find that this failure is fatal to the prosecution case.
The Respondent’s submissions are dated 22nd October 2024 and are to the effect that the Appeal should be dismissed and the conviction and sentence upheld. It was submitted that the prosecution proved that that the Complainant had been assaulted by the Appellants and she was treated both at Nyamache Hospital and Kisii Teaching and Referral Hospital and PW3 filled and produced P3 form to that effect.
The Respondent submitted that there were no discrepancies in the prosecution evidence and that the Trial Magistrate was not biased against the Appellant during trial.
In regard to sentence it was submitted it was submitted that any person who commits an assault occasioning actual bodily harm is liable to imprisonment to 5 years and the sentence passed against the Appellants was very lenient being that they were not even remorseful.
The Respondent Counsel urged the court to find that the conviction was safe and uphold the decision of the Trial Magistrate.
ANALYSIS AND DETERMINATION
In a first appeal, the duty of the court was held in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are whether the ingredients of the offence of assault causing actual bodily harm were proved beyond reasonable doubt by the prosecution.
It is not in dispute that the Complainant suffered injuries that PW3 assessed as bodily harm. It was also not disputed that PW2 witnessed the 1st Appellant hit the Complainant. Although the Complainant alleged that she was assaulted by the 3 Appellants her only witness did not see 2nd and 3rd Appellants assault her and the fact that they were seen holding sticks cannot be construed to mean that they also assaulted the Complainant. The Trial Magistrate was therefore in error to find them guilty of the offence in the 1st count.
In regard to the 2nd count there was corroborated evidence that all the 3 Appellants participated in breaking the door, removed the Complainants things from the house and that the 1st Appellant destroyed the bed. Again being that it is only the bed that is shown in the charge sheet as the only property destroyed the person who is said to have destroyed it is the one who can be held culpable. In the circumstances this court finds that the appeal by the 1st Appellant has no merit and the same is dismissed. The appeal by the 2nd and 3rd Appellants is merited and the same is allowed.
Concerning the sentence meted against the 1st Appellant the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code provides:-
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years.”
The sentence against the 1st Appellant was therefore lawful save that the Trial Magistrate ought to have called for social inquiry and considered a non-custodial sentence being that the Appellant and the Complainant were related by marriage and therefore need to foster peace between them. The sentence herein was passed on 2.11.2023 and this court hereby orders that the remainder of the sentence should be served under probation supervision. The 2nd and 3rd Appellants’ are to be released forthwith unless lawfully detained. Right of Appeal 14 days explained.
Dated, signed and delivered this 6th day of March, 2025