(An Appeal against both the conviction and sentence in The Chief Magistrate’s Court at Shanzu (Hon D. Onyango. RM) in the judgment in Criminal case number E033 OF 2022 delivered on 22nd August 2022.)
The charges
1. The Appellant was charged with the following five (5) counts:-
i. Count 1 – Threatening C/S 223(1) of the Penal Code
Particulars are that – On the 20th day of December, 2021 at Mtwapa Police Station in Kilifi South Sub-County in Kilifi County, without lawful excuse uttered words ‘kabla nimaliziwe nitakupiga risasi wewe’ threateing to kill C.I. Biberone Umazi.
ii. Count 2 – Threatening C/S 223(1) of the Penal Code
Particulars are that – On the 20th day of December 2021 at Mtwapa Police Station in Kilifi South Sub-County in Kilifi County, without lawful excuse uttered words ‘kabla nimaliziwe nitakupiga risasi wewe’ threatening to kill I.P. Josephine Mwangemi.
iii. Count 3 – Threatening C/S 223(1) of the Penal Code
Particulars are that – On the 20th day of December 2021 at Mtwapa Police Station in Kilifi South Sub-County in Kilifi County, without lawful excuse uttered words ‘If I die I will die with my enemies’ threatening to kill Cpl. Mark Omuse.
iv. Count 4 – Assaulting a Police Officer C/S 103(a) of the National Police Service Act
Particulars are that – On the 20th day of December 2021 at Mtwapa Police Station in Kilifi South Sub-County in Kilifi County, assaulted Cpl. Mark Omuse, a police officer of hitting him on his mouth with your fist in the execution of his duties.
v. Count 5 - Destroying Evidence C/S 116 as Read with Section 36 of the Penal Code
Particulars are that - On the 20th day of December 2021 at Mtwapa Police Station in Kilifi South Sub-County in Kilifi County, knowing that the occurrence book might be required in evidence in a judicial proceeding, willfully destroyed it with intent to prevent its being used in evidence .
THE EVIDENCE
2. The prosecution went on to call a total of nine (9) witnesses leading to the closure of the prosecution’s case on the 11th May 2022. Come the 13th June, 2022 the court went on and ruled on a case to answer, where the Appellant was acquitted in court 2 vide section 210 CPC but found to have a case to answer in counts 1, 3, 4 & 5 vide section 211 CPC.
3. The Appellant went on to tender his sworn defence evidence on the 6th July, 2022 and the trial court went on to deliver its judgment on the 22nd August 2022 where the Appellant was convicted in counts 1, 3, 4 & 5 and sentenced to serve 7 years, 7 years, 5 years and 2 years imprisonment respectively, which sentence was ordered to run concurrently, hence this appeal.
4. Having been aggrieved and dissatisfied by the conviction & sentencing by the trial court, the Appellant has preferred six(6) grounds of Appeal vide its supplementary Petition and grounds of Appeal dated the 19th July, 2024 and admitted on record on the 23rd July 2024.
THE LAW
5. Section 223(1) PC Provides for count 1, 2 & 3 THAT
Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.
The duty of the court-
6. The role of this court being the first appellant court is now settled as was stated in the case of Odeno Versus Republic (1977) EALR32 and later Mark Oiruri Mose Versus Republic ( 2013) e KLR among other decisions that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its own conclusion on the matter but laws bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them giving evidence and give allowance for that.
7.In the above matter the court held that “an Appellant on first appeal is entitled to expect the evidence as whole to be subjected to a fresh and exhaustive examination . (Pandya versus Republic 1975) E.A 336 and to the Appellant court’s Own decision on the evidence. The first appellant court must weigh the conflicting evidence and draw its own conclusions (Shantilal M Ruwala Versus Republic (1957) E.A 570. It is not the function of the Appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court findings and conclusions. It must make its own findings and draw its own conclusion. Only then can it decide whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses. (Peter vs Sunday Post 1978) E.A. 424
8.The issues for determination herein are:-
i. Did the Appellant threaten to kill C.I. Biberone Umazi (PW2) and Cpl. Mark Omuse (PW 1) on the 20th December 2021 as described on the charge sheet.
ii. Did the Appellant assault Cpl. Mark Omuse (PW 1) on the 20th December, 2021 as described on the charge sheet.
iii. Did the Appellant willfully destroy evidence (Occurrence book – entry No. 4 of the 20/12/2021 – in reference to the evidence of PW 2 at reflected on page 6 line 24 of the records) and/or OB entry No. 44 of the 20/12/2021 according to the Respondent’s affidavit to oppose bond dated the 12th January, 2022 at paragraph 3; with intent to prevent it from been used in evidence through a judicial process (police disciplinary action.
ANAYLSIS
9.From the evidence of all the prosecution witnesses who had ever interacted with the Appellant they went on to describe him as a quite person who talked little while interacting with his colleagues at work and that they had a good working relationship with him and that they never had any grudges. The Appellant’s behavior on the fateful day was described as strange by the witnesses herein and the same was as a result of or it was attributed to being intoxicated/drunk.
10. The appellant submitted that If at all the threats did happen, it was certainly a one off event with no track record to suggest that the Appellant had a habit of issuing threats and assaulting people; which was attributed to intoxication.
11.It was the evidence of PW 1, that the Appellant appeared drunk after taking alcohol and that they had a good working relationship ( page 4 line 8 and page 5 lines 8 & 9 of the records);
11. PW 2 went on to confirm that the Appellant looked drunk, while normally he doesn’t talk much but on that day he was shouting all over ( page 7 lines 20 to 21 of the records);
12. According to PW 3 the Appellant was not sober (page 9 line 8 of the records)
13. It was the evidence of PW 4 that the Appellant was a good colleague and that they had a good working relationship to the effect that when they met on the 23rd December, 2021 he did open up to him that he had problems with his wife, life had become tough and his life had become useless to the extent that it was good to die rather than suffer ( page 10 lines 9 to 11 and lines 15 & 16 of the records) which are typical symptoms of depression.
14. According to PW 6, the Appellant came to the station and headed to the armory while staggering, appearing drunk and smelling of alcohol .PW6 did not witness any quarrel between the Appellant and any officer at the station (page 14 lines 6 to 7, line 25; page 15 lines 4 & 5 of the records);
15.PW7 stated that the Appellant was violent and drunk and that he was not aware of any earlier incident between the Appellant and PW1 ( page 15 line 20 and page 16 lines 21 to 23 of the records);
16. It was the evidence of the investigating officer (PW9) that he did establish that the Appellant appeared drunk and that his investigations did not reveal any animosity between the Appellant and PW1 & PW2 (page 21 line13 and page 22 lines 11 and 12 of the records).
17.The Appellant submitted that the description of the character and antecedents given by his colleagues and the Appellant also having confirmed in his sworn defence evidence that he didn’t have any issues/quarrels/grudges with his colleagues, it clearly came out that it was the effect of the intoxication/alcohol that he had consumed and compounded with stresses of life; that took over control of his sanity and he was temporarily out of his mind and he should not have been blamed and section 13(2)(b) PC must come into play as a defence recognized in law.
18.They make reference to the court of appeal decision of Bakari Magangha Juma v Republic [2016] eKLR.
19.The Defence of intoxication is provided in section 13 of the penal code which states:-
“13 (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and –
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.
(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
(5) For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.”
20.Under section 13 of the Penal Code, intoxication is not a general defence to a criminal offence, except in the circumstances set out in the section. A person who commits an offence while intoxicated is not ipso facto excused from the consequences of his act. In our view the section affords a defence of intoxication in three situations as follows.
21.The first situation is in what is called involuntary intoxication, where at the time of commission of the act complained of, the accused person does not know that it is wrong or does not know what he is doing, because of intoxication caused without his consent by the malicious or negligent act of another person. In such a case, the court is required to discharge the accused person.
22.The second situation is where the accused person, by reason of intoxication is insane, temporarily or otherwise, so that at the time of commission of the act complained of, he does not know that it is wrong or does not know what he is doing. This situation brings the case within the M’Naghten Rules and the court is required to deal with the accused person in the manner prescribed by the Criminal Procedure Code for accused persons who were insane at the time of commission of the offence, culminating in a special finding of guilty but insane and the detention of the accused person in a mental hospital at the pleasure of the President.
23,In Rex v. Retief [1940-1943] EA 71, the former Court of Appeal for Eastern Africa explained this aspect of the defence of intoxication as follows:
“The insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes no note of the cause of insanity and, if actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man’s intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful, his act would be excusable on the ground of insanity and the verdict should be as laid down in section 159 of the Criminal Procedure Code ‘guilty of the act charged but insane when he did the act.’”
24.The third situation, contemplated by section 13(4), arises where by reason of intoxication the accused person is incapable of forming a specific intent, which is an element of the offence charged. Sometimes this situation is refereed to as “intoxication or drunkenness negativing mens rea”. In Said Karisa Kimunzu v. Republic, CR App No. 266 of 2006 (Msa), this Court stated thus regarding intoxication or drunkenness negativing mens rea:
25.“But under subsection (4) the court is required to take into account the issue of whether the drunkenness or intoxication deprived the person charged of the ability to form the specific intention required for the commission of a particular crime. In a charge of murder such as the one under consideration, the specific intention required to prove such an offence is malice aforethought as defined in section 206 of the Penal Code. If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. In the circumstance of this appeal, the learned trial Judge was required to take into account the appellant’s drinking spree of the previous night and even that morning in determining the issue of whether the appellant was capable of forming and had formed the intention to kill his son.”
26.In the case of Bakari Mgaga Juma, the Court of Appeal stated:
“The burden of proving that the appellant was capable of forming the intent necessary to constitute the offence of murder always remained with the prosecution and was not discharged if the probability emerges from the evidence that the appellant was incapable of forming that intent. (See Malungu s/o Kieti v. R [1959] EA 797 and Buzoya & Another v. Republic [1975] EA 215)”.
27. They said ‘In the circumstances of this case, there is serious doubt whether the appellant killed the deceased of malice aforethought, the benefit of which ought to go to him. After stabbing the deceased, never made any attempt to flee the scene, other than staggering to a neighbour’s house from which he was found sleeping peacefully, and arrested. Such is not normally the conduct of a person with a guilty mind.’
28.We shall get back to the effect of this defence after analyzing all the evidence.
29.According to count 1, the threatening words against C.I. Biberone Umazi (PW2) are in kiswahili language and which are – “kabla nimaliziwe nitakupiga risasi wewe” It is important to note that PW2 was the OCS Mtwapa police station at the time of the alleged incident and she was called to the station by one Cpl. Abdi Mohamed (PW7) to come and attend to an emergency at the station.
30. Looking through the evidence of PW2, nowhere did she make reference to the alleged threatening words in kiswahili and as captured on the charge sheet.
31.According to count 3, the threatening words against Cpl. Mark Omuse are in kiswahili language to wit “kabla nimaliziwe nitakupiga risasi wewe”. According to PW1,the threats against him were witnessed by PW3, PW5 & PW7.
31.Interestingly enough Pw1 did not make reference to any threats in Swahili language in his evidence. It was his claim that the Appellant said that he would finish him before he retires (refer to page 4 lines 22 to 24 of the records). The claim that he will be shot does not appear anywhere in the evidence of PW1
32. According to PW3 & PW5 the officers who were on duty at the report office on the fateful day/date (afternoon shift) and having actively participated in separating the Appellant & PW1 from fighting, they did not claim anywhere in their evidence that they witnessed any threats against PW1. They did not mention the words in the charge sheet.
33, From the above,It is noted that non of the complainants mentioned the Kiswahili words that are captured in the charge sheet . They did not even give the English equivalent nor what they construed them to mean. The closest witnesses who were in the report office and who went in to calm down the situation also did not mention these particular words.
34. We first hear of these words from pw6 and 7 and the investigating officer and this did raise some red flag. One must wonder why them and not the complainants and the officers who were in the report office who responded first ? Could it be because this was a case involving their superiors as complainants especially PW2? Were they tempted to exaggerate a little bit ? I say this because even PW2 the OCS said she only gave instructions that internal disciplinary action be taken and even after the ob was discovered to have been torn, she did not intend to have the Appellant arrested and charged.
35. Looking at the evidence of PW1, PW2, on the one side and PW6 & PW7 ont the other there is a serious disconnection/disparity and the same is seriously lacking in consistency & corroboration. The serious doubts existing herein as on where, when & how were the alleged threats communicated in reference to count 1 and 3 .These inconsistencies & want for corroboration should have led to an adverse inference and it ought to have been decided in favour of the Appellant
36. All in all, is not in doubt that there was some disturbance and some scuffle, that evening, but when it comes to a particular charge, there must be cogent evidence to support the charge and not just generalizations.
37. For the reasons herein above, the learned Hon. Trial Magistrate certainly erred in both law and fact in finding that the prosecution did prove its case against the Appellant beyond reasonable doubt on counts 1 & 3.
38. ISSUE NO. 2 - Did the Appellant assault Cpl. Mark Omuse (PW1) on the 20th December, 2021 as described on the charge sheet?
i. According to the particular of the offence, it is alleged that Cpl. Mark Omuse was hit by a fist on his mouth by the Appellant. According to the complainant herein Cpl. Mark Omuse (PW1); he was the in charge armory and responsible to issue firearms to officers doing on duty and receiving them back when officers were reporting back from duty. It was his evidence that, after he realized that the Appellant appeared drunk having drunk alcohol and for that reason he could not hand over a firearm to him and he was courteous to allow him one day off to go and rest. There was an exchange of words with the Appellant claiming that the armory didn’t belong to his mother (PW1) – common phrase in the Kenyan political sphere – ‘Si ya mamako’!
.
39. It is the evidence of PW1 that the Appellant punched him twice on the neck and held him by his shirt (refer to page 4 lines 15 to 16 of the records). Nowhere did PW1 claim that he was punched on the mouth as alleged on the particulars of count 4! For emphasis, it is important to note that, it was the evidence of PW1 that he was punched twice on his neck before the two report officers (PW3 & PW5) intervened.
40. The evidence of PW8 and the P3 (PEXH 2) tendered by PW8 did not aid the prosecution’s case in any way. To the contrary it did water down the claims in count 4 for the reason that the doctor who attended to PW1 at the Jambo Medical Centre in Mtwapa remained unknown to the court and neither was he known by PW8 (the author of the P3!)
41. This initial treatment note produced by PW8 as PEXH 3, also raised another halt sign .It indicates that PW1 had been hit with a fist on the left side of his face and not the neck or mouth!This was the first or primary medical note.
42. This entry, is to be contrasted with the finding in the P3 (PEXH 2) at Part B (1)(a) on head & neck – lt shows injury to the neck – without stating on whether it was on the right or left side and there is no specific mention of the left side of the face! This contradiction was was a big red flag. Where was PW1 hit? On the face or the neck? Or not at all? WHERE did the maker of the P3 get his information ? Who mentioned the face to the inatial medical attendant ? The court notes there was no specific injury noted and even the treatment is said to be just painkillers.
43. The court finds that the inconsistencies & contradictions herein do go to the root of the prosecution’s case and the said serious doubts ought to have been ruled in favour of the Appellant .
We move to the last issue. Damage to the O
44. It is worth noting that the alleged Occurrence book page which was allegedly torn and which is subject of count 5 was marked for identification as PMFI 3 and what was produced as PEXH 3 is the medical notes from Jambo Medical Clinic at Mtwapa was also doubly marked as PMFI 3! By the close of the prosecution’s case, the OB in question was never produced as an exhibit!
45. This was a grave omission as exhibits need to be produced.
46. All said and done, the Court finds that the learned Hon. Trial Magistrate erred in both law and fact in finding that the prosecution had proved their case against the Appellant on count 4 beyond reasonable doubt.
47. ISSUE NO. 3 - Did the Appellant wilfully destroy evidence (Occurrence book – from entry No. 4 to entry No. 64 of the 20/12/2021???) with intent to prevent its being used in evidence through a judicial process?
The plain reading of count 5 and its particulars, it does suggest that a whole Occurrence Book was destroyed , while making reference to the evidence of the prosecution witnesses who made reference to the destruction of a page or pages! According to PW2, from entry No. 4 of the 20/12/2021 is what was destroyed up to the entry which was made by PW7 as entry No. 64 of the 20/12/2021 leading to a second entry being made by PW7 to wit - OB No.65 of 20/12/2021 & No. 66 of 20/12/2021.
The Appellant submitted and made reference to the affidavit in support of opposition to bond . They pointed out that it made reference to OB No. 44 which is a clear contradiction and a manifestation that the prosecution evidence was both fabricated and manipulated. Worst of it the failure to state the specific occurrence book entry in the particulars of the offence is fatal, for it left the offence unidentified and hence not proven to the required standards.
48. The Appellant argued that the conviction of the Appellant on this count was purely premised on suspicions and not cogent, firmly established circumstantial evidence with definite tendency unerringly to the guilt of the Appellant and neither did it form a complete chain to link the Appellant to the said offence with the exception of any other person or persons.
49. It’s quite interesting that nobody heard any paper/papers being tone and nobody saw the Appellant with any torn paper/papers .
50. An offence vides section 116 as read with section 36 of the Penal Code is very precise on its intent and purpose. This provision of the law is very clear to wit, that the destroyed OB entry must have been intended for use in a judicial proceeding. The said judicial proceedings were never identified nor specified nor conducted but the court was left to speculate. The purpose of the said unknown and unidentified OB entry was for the purpose of commencing disciplinary proceedings against the Appellant and maybe the said unknown and unidentified OB could have been used in the intended disciplinary proceedings! But again, the Appellant herein was never subjected to any disciplinary proceedings as provided for vide section 89(3) of the National Police Service Act. There was no reason or explanation tendered to explain reason(s) as to why the Appellant was never subjected to the said disciplinary proceedings (considering that a fellow up OB entry was made upon the instructions of the OCS!) despite the fact that OB No. 65 of the 20/12/2021 was re-entered by PW7 for the said intended purpose!?
51. It is important to note that PMFI 3 (the alleged piece of the OB entry which was left behind after the bigger part was torn out), as it was alluded to by PW2 the same was only marked for identification as earlier stated and by the close of the prosecution’s case it was never produced as an exhibit. What was eventually produced as PEXH 3 was a medical note from Jambo Medical Centre at Mtwapa! It is also of uttermost concern as to why the whole OB was not presented to court for the court to confirm that some part of it and relevant to the case had been torn out! All said and done, there was no OB evidence (whether whole or part) which was presented as an exhibit in support of count 5. Such being the case, count 5 was to fail at the point of no case to answer just like count 2 and the same was the finding in the High court decision of Philip Wambua & 2 others v Chairman School Committee - Trans-Nzoia Primary School & another [2016] eKLR as highlighted on page 3 & 4.
It was held that One of the prayers in the plaint is a declaration that the plaintiffs are the lawful owners of LR. No. Kitale Municipality Block 3/65. It was incumbent upon them to adduce evidence to show that they were properly registered as owners of the suitland.
52. As I have said hereinabove, there was no evidence to show how the process of change from Kitale Municipality Block 3/174 to Kitale Municipality Block 3/65 was carried out. The plaintiff had some letters which tried to explain the process marked for identification but they were not produced. Even if such letters are in the file, I cannot rely on them because they do not form part of the evidence. In Nairobi Civil Appeal No. 140 of 2008 between Kenneth Nyaga Mwige and Austine Kiguta & 2 Others [2015] eKLR the court had this to say regarding documents marked for identification but not produced:
“Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account”.
53. The judges of the Court of Appeal went on to cite two cases as follows:-
“In Des Raj Sharma -vs- Reginam [1953] 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence.
In the Nigerian case of Michael Hausa -vs- The state [1994] 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence”.
54. In reference to the charges that were preferred against the Appellant herein, the said OB’s failed the relevancy tests and having confirmed that there were no disciplinary proceedings taken against the Appellant as provided for by the National Police Service Act as read with the National Police service standing orders, then the said OB was never intended for use in any judicial or quasi-judicial proceedings. This particular count ought to have failed and the learned Hon. Trial Magistrate erred in both law and fact in finding that the prosecution did prove its case beyond reasonable doubt.
55. Back to defence of intoxication
56. It was the evidence of the Appellant during his defence that he had a good working and cordial relationship with his co-workers including both seniors and juniors and he had no reason or justification to commit any of the offences that he stood charged with ( page 25 lines 11 to 27 to page 27 lines 1 to 18 of the records).
57. The Appellant did concede to the fact that he drunk three (3) bottles of beer on the very day of the incident at around 10 am after having left work at 6 am and that he couldn’t remember assaulting anyone and neither does he remember ever issuing any threats to anyone and more so treats to kill anyone and neither could he remember ever destroying the occurrence book or part of the occurrence book.
58. In considering the serious inconsistencies, contradictions and want for serious corroboration in the prosecution’s case, the sworn defence evidence tendered by the Appellant ought to have been considered while awarding the Appellant the benefit of the doubt. This should be read in reference to the comments by the trial court while ruling on bond (refer to page 3 lines 5 to 14 of the records) which I understood to mean that Police officers are a neglected lot despite the straining nature of their work with no attention been placed to mitigate their mental health. The court also went on to acknowledge that the Appellant had put in fifteen (15) years in making sure that the Country was safe and that we are all safe but again his mental health was nobody’s business (refer to page 29 lines 1 to 5 of the records). It was therefore, unnecessary to have charged the Appellant in court but rather take him through counselling and stuff and if need be, he subjected to an internal disciplinary proceedings & sentenced as provided for by the police standing orders.
59. GROUND NO. 6 - The Learned Hon. Trial Magistrate erred in both law and fact by preferring a harsh and excessive sentence under the circumstances and failure to properly & judiciously exercise his discretion in addressing section 333(2) CPC in achieving the overall objectives of sentencing.
i. The Appellant was eventually convicted on counts 1, 3, 4 & 5 where he was ordered to serve seven (7) years imprisonment in counts 1 & 3, five (5) years imprisonment in count 4 and two (2) years in count 5 which counts were ordered to run concurrently.
60. The prosecution having confirmed that the Appellant was a first time offender, having offered fifteen (15) years of his life/youth as a police officer with the National Police Service, in the service of this great nation and having prayed for leniency in mitigation, the seven (7) years imprisonment in counts 1 & 3 for an offence that attracts a maximum sentence of ten (10) years imprisonment was certainly harsh and excessive under the circumstances. The conviction to serve five (5) years imprisonment in count 4 for an offence that attracts a maximum sentence of ten (10) years is equally excessive and harsh under the circumstances herein. Finally, the sentence of two (2) years imprisonment for an offence that attracts a maximum sentence of two (2) years imprisonment is certainly harsh and excessive under the circumstances.
61. It is a fact that the Appellant herein was arrested on the 11th January, 2022 for offences that were allegedly committed on the 20th December, 2021 and the Appellant went on to be held in custody from the date of his arrest on the 11th January, 2022 past his first arraignment in court on the 12th January, 2022 where his release on bond was strongly opposed and in the ruling of the court dated the 12th January, 2022 the Appellant was denied bond and he remain in custody all through the trial upto his conviction and sentencing on the 22nd August, 2022.
62. For the sake of argument and if at all it was true that the Appellant did wish to hurt/injure or kill any of his colleagues, there is nothing that could have stopped him between the 20th December, 2021 to the 11th January, 2022 – which period he was officially on off-duty having been granted the same by the Deputy OCS (22 - twenty-two days’ period!). This would seriously suggest that the Appellant was not sane, if at all things did happen as alleged by the prosecution!
63. The Appellant was therefore in custody from the 20th January, 2022 to the 22nd August, 2022 making it eight (8) months which were certainly not factored in as demanded by section 333(2) CPC. So as to give section 333(2) CPC a proper meaning and interpretation. The imprisonment time ought to have been ordered to start running from the 20th January, 2022 and this was the finding in the court of Appeal case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR as highlighted on page 12 –
64. The court said ‘There are however two grounds upon which we must fault the first appellate court, as regards sentence. The first is the imposition of an omnibus sentence for all the three counts. The appellants were entitled to be sentenced separately for each count. (See Majole v. R [1956] EACA 576). However, as the appellants did not raise this issue, we shall not say more about it. The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code.
65. That provision provides as follows:
“333(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection
(1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.
66. In this case the trial court did not take into account the time already serve in custody.
67. From the above analysis the court find that counts one and three were not proved as the key witnesses did not make any reference to the specific kiswahili words mentioned in the charge sheet. They did not even give the English equivalent or say that they believed or indeed feared for their lives . As regards the assault in count 4, there were contradictory medical notes and evidence, and as to the last count,5, there were no exhibits and no one saw the appellant tear off the page. Lastly, there is the issue of intoxication as a defence. And the mental status of the appellant at that time which was key.
68. The court therefore finds that the appeal is merited and the therefore allows the appeal, and quashes the conviction in all the counts he was convicted that is counts 1,3,4 and 5 and sets aside the sentences in counts 1, 3,4,and 5.
69. The appellant may be set at liberty unless if not otherwise lawfully held.
70. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY 0F SEPTEMBER 2024
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF
THE APPELLANT AND HIS ADVOCATE MR CHACHA MWITA
MS MAINA FOR THE STATE
BEBORA COURT ASSISTANT