David Odhiambo Molo v Republic [2016] KEHC 6268 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

HIGH COURT CRIMINAL APPEAL  NO. 83 OF 2015

(CORAM:  J. A. MAKAU – J.)

DAVID ODHIAMBO MOLO   ..…............................................................................. APPELLANT

VERSUS

REPUBLIC   ........................................................................................................... RESPONDENT

(Being an appeal against both the  conviction and the sentence in Criminal Case No. 857 of 2013 in Bondo LawCourt before Hon.          C. A. KUTWA  – P.M.)

JUDGMENT

1.   DAVID ODHIAMBO MOLO and another were charged with an offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars of the offence are that on 16th day of July 2013, at about 6. 00 p.m. at Raliew village in Omia-Diere  sub-location in East Asembo location in Rarieda District within Siaya County the appellant and another jointly and unlawfully killed MORRIS KITCH SWAGA.

2. PW1 Grace Owuor testified that on 16. 7.2013 at 6. 00 p.m. that two young men one wearing a red shirt came from the lakeside and at PW1's gate they met PW1's brother-in-law MORRIS KITCH who had a child called W.  Morris Kitch was quarrellings the boy for stepping on a barbed wire.  PW1 described the man wearing the red shirt as the 1st accused in the dock (I have perused both the typed and the the handwritten proceedings and noted that the typed record is erroneously typed “short” whereas the handwritten proceedings is “shirt”).  The 1st  accused asked  Morris why he was disturbing the boy and whether he knew him. The 1st  accused then hit Morris on the face with his hand and Morris fell down. Morris got up and asked the 1st accused if he wanted them to fight. The 1st accused once again hit Morris and he  fell down and he continued hitting him with his fist.  PW1 then raised alarm. The 2nd  accused came and asked the 1st accused what  he was doing, who told the 2nd accused that he was beating Morris because he had disturbed the child.  The 2nd accused wanted to beat Morris  but when he saw him bleeding he stopped.  The 2nd accused took the child Wesley and left.  PW1 went to check on Morris and found him bleeding but was talking.  Morris asked PW1 to  call some people to take him to hospital. That one Roseline Anyango came to the scene. PW1  telephoned Lucas who also came and proceeded to confirm the name of the person who had  assaulted Morris.  He returned thereafter and took Morris to the hospital.  PW1 categorically  stated that the 2nd accused did not beat Morris.  During cross-examination, PW1 maintained   that the 1st accused, the appellant, herein is the one who assaulted Morris and that she used to   see him going to the lake that after assaulting Morris he went back to the lake near where the mother of Wesley was working.

3.  PW2 Willis Ogillo Swaga testified that on 22. 7.2013 he went to identify the body of his brother Morris which was at Matangwe Mortuary to Dr. Ahero who carried out post     mortem.

4.  PW3 Brian Wesley Otieno testified that he knows Onyango in the court and stated Nyangasa     was the first accused and Onyango the 2nd accused.  He testified that Nyangasa was shaking the barbed wire's fence when Kitch, a watchman who was  going to school held PW3 and hit   him on his chin, asking PW3 why he was shacking the fence.  PW3 told Morris, the deceased,   that it was the 1st accused, the appellant herein  that the 1st accused came and they started   fighting with fists.  PW3 then ran away.  PW3 knew the appellant before as he used to see him    in the   lake.  That material day he was wearing a red short with white stripes.  (I have perused   the handwritten proceedings the word used is “shirt” and not “short” as erroneously typed in the typed proceedings)  PW3 stated the 2nd accused Onyango was far with PW1.  During cross-  examination, PW3 testified that the appellant was using fists to assault Kitch, who was hitting     him back.  PW3 testified the appellant was beating the deceased because he had assaulted him.

5.  PW4 George Owuor also known as Lucas testified that on 16. 7.2013 at 6 p.m. he was at  Asembo Bay Shopping Centre, when he received a call from his wife Grace Aoko (PW1) telling     him there were two people  who had assaulted his brother Morris Kitch and he was lying down.  PW4, took a motor cycle and rushed to the scene of crime.  PW4 talked to Morris who told him he met  two people who assaulted him.  Morris told him he did not know them but he could    identify them by their mode of dressing.  He told him one had a red shirt (typed proceedings  erroneously typed “short” but handwritten is “shirt”) and the other had a black clothing and  had gone towards the lake where changaa is brewed.  PW4 proceeded to the direction with other people and found the two.  He asked the one with red shirt and the other said “yes” and asked  PW4 whether they had come for fight.  PW4's brother came, held the one with the red shirt. The other one hit him with stick and he fell down.   That the one wearing red shirt stayed on.  PW4's  brother (I have perused the court handwritten proceedings and compared with the typed  one and the handwritten word by trial Magistrate is “red shirt” and not “red short” This is  again a typing error)  PW4 took a panga and hit the one with red shirt.  He then ran away to where Morris was and took him to hospital. Morris died while undergoing treatment and the body was taken to Aram Police Station where PW4 made a report.  The body was subsequently   taken to Matangwe Mortuary.  PW4 later went to Bondo District Hospital for treatment . That the accused was also taken to hospital and police arrested them.  He identified the one   with red shirt (erroneously typed “short” instead of “shirt” as per lower court proceedings)   while the one in black was the 2nd accused.  PW4 testified that he had known the said accused     before the incident.

6.  PW5 Christine Awuor Otieno testified that on 16. 7.2013 at 6 p.m. he was at the lake with David and Benson.  That after a while he saw Lucas (PW4) with   others carrying pangas,   rungus and a spades.  PW4 told her David and Benson had injured his brother.  PW6  testified David was the first accused whereas Benson is the 2nd accused.  That Lucas PW4  started  fighting David, the appellant, and PW5 took his phone and left the scene.  PW5  stated the brother of Lucas is called Kitch.  PW5 testified that he heard Kitch had died.

7.   PW6 Paul Otieno Wayu testified that on 16. 7.2013 at 6 p.m. he was working together with the deceased.  That he went to take bath after work and on the way he met Luca's brother to the   deceased and he told him is brother was assaulted and was lying down somewhere.  PW6 went   to where Kitch was and he told him where his assailants had rushed to.  He was told by the  deceased that one of them had a red T-Shirt while the other had a black one.  That PW6    proceeded with others to direction of the group and found them at the lake shore.  They   enquired from them what had happened but they turned hostile towards them.  That they went    and took the deceased to the hospital who died after a short while.  PW6 testified the people     they found at the lake shore were the two accused in the dock, stating he knew only one called      Onyango, the second accused.  During cross-examination PW6 testified at the shore the appellant started fighting them.  He stated the appellant was cut with a panga.

8.     PW7 Roseline Anyango Otieno testified that on 16. 7.2013 at 6 p.m. she heard people  screaming and saw the men she had met earlier on, while she was  at the gate of her  home.  One   of them was beating a person.  The 1st accused she stated was the one assaulting someone using   his fist.  She went to the scene and found he was beating her brother-in-law.  The assailant had   by then left.  Morris told PW7 he was beaten by the man who had a red cloth.  During cross-  examination, PW7 testified she knew the appellant by his physical appearance as she had met    him while coming from fetching water.  PW7 testified, she saw appellant assaulting her brother-   in-law.  That she was able to recognize the appellant's appearance.

9.    PW8 Doctor Ogoti Evans, of Bondo District Hospital, testified that he knows Dr. Joan Atieno   who is his colleague at the District Hospital.  Having worked with her for 8 months and that she  was currently on her annual leave and that he is conversant with her handwriting, the prosecutor applied for PW8 to produce the medical document, however on objections by the accused, the    Court rejected the application.

10.  PW9 Doctor Joab Otieno based at Bondo District Hospital  testified that he carried postmortem on the body of Maurice Sirenya at Matangwe Funeral on 2. 7.2013 at 11. 03 a.m.          The body had injuries on head, tender limb (right) and lower eye (laceration), no abnormality on  respiratory system.  The nervous system had a brain stem.  He testified the cause of death was herniation leading to acute respiratory and cardiac arrest.  A sharp object was used on the axial   bone.  PW9  produced treatment book as exhibit P2 and identified photos as MFI P3 (a) (b) (c).

11.   PW10 No. 232333 C.I. Abdirahim Abdulahi testified that on 16. 7.2013 he  was at his house when he received a call from Cpl. Juma, O.C.P.D. Masembo Bay Police Base and after 10    minutes he received also a call form Cpl. Naman, informing him of admission of someone at    Abidha Dispensary after assault by two people.  Cpl. Naman told him the body had been taken   to Police Station.  He proceeded  to the station and the scene.  He drew sketch plan the  following day and then proceeded to Bondo District Hospital, where the 1st and 2nd accused   were admitted after being assaulted by members of Public.  He arrested them and referred them   to Jaramogi Referral  Hospital for examination, they were later charged.  He recorded    statements and issued them with P.3. forms.  That he later went to mortuary and took photos of    the deceased.  He forwarded the photographs to Kisumu.  He stated the deceased was killed    because of a dispute over fencing posts that were being uprooted by a small boy.  PW10           identified the 1st and the 2nd accused in the dock.  He produced sketch plan as exhibit 4 and  Memo as P exhibit 7.

12.      PW11 Doctor Evans Ogot based at Bondo District Hospital testified that he knew doctor  Malingi who he used to work with, before he resigned from the Public Service.  That he knew stand trial.  He produced P.3. as exhibit P. 5.  He added that he also examined Benson Ezekiel      Ouma and found him fit to stand trial.  He produced P.3. as exhibit 6.

13.  PW12 No. 219397 C.I. Timothy Chemengubi, incharge scene of Crime Nyanza Region, was  gazetted in gazette No. 5853 of 3. 8.2007 testified that on 8. 8.2013 he received a film duly    photographed and a memo from O.C.S. Aram Police Station.  He processed the film with P.C.  Abuda.  He presented the film and produced 4 photos of the deceased.  He prepared and signed  a report.  He produced memo P exhibit 7, 4   photos P exhibit  3 (a) to (d) and report P exhibit 8.

14. The appellant when put on his defence opted to give unsworn statement.  The appellant stated   that on 16. 7.2013 he was walking within Kialeyo Village together with the 2nd accused  going   to the lake, when they reached near a field they met an old man, that the old man grabbed a    small child and started to cane him.  That they decided to go to the lake but some people   arrested them, alleging they had assaulted someone, they started to assault the appellant and   after sometime they  ran away.  That they were rescued and taken to Bondo Sub-District    Hospital.  He denied having killed the deceased.

15.  The trial Magistrate evaluated the prosecution's evidence and appellant's defence and convicted   the appellant for the offence of manslaughter and sentenced him to serve 20 years  imprisonment.

16.  Aggrieved by the conviction and the sentence the appellant preferred this appeal setting out 5   grounds of appeal in his petition of appeal filed on 17th March 2015.  The Appellant's Counsel     filed supplementary petition of Appeal dated 16th November, 2015 setting out 5 grounds of     appeal being as follows:-

“a)  The learned trial Magistrate erred in law in coming to the conclusion that the prosecution had proved the case against the appellant beyond any reasonable    doubt.

b) The leaned trial Magistrate erred in fact in failing to appreciate the obvious and glaring contradictions in the evidence adduced by several prosecution witnesses and  thereby arriving at a wrong decision.

c)   The learned trial Magistrate erred in fact in failing to observe that the cause of death as stated by PW9 was herniation and that a sharp object was used on the axial bone    andipso factocould not have been caused by the appellant.

d)    The learned trial Magistrate erred in law by failing to properly analyse the evidence          and come to the only logical conclusion under the circumstances and give the    appellant the benefit of doubt.

e)    The judgment and conviction of the subordinate Court was against the weight of the    evidence adduced.”

17.   At the hearing of the appeal, Learned Counsel B.F.O. Odhiambo appeared for the appellant  while M/s. Odumba prosecution Counsel represented the State.

18.  Counsel for the appellant relied on his supplementary petition of appeal.  He combined ground     numbers 1 and 4 and argued them together.  The Counsel emphasized  that the issue in this    appeal relates to identification of the appellant, that the Learned trial Magistrate failed to test the  evidence of identification  and determine whether the inconsistencies in the prosecution's evidence and glaring inconsistencies and contradictions were not fatal to the prosecution's case.  He urged the contradictions went down to the credibility of the prosecution witnesses and raised doubt which should have been resolved in favour of the appellant, that the cause of death was not proved and there was no linkage to the appellant and lastly that the sentence was    excessive in the circumstances.

19.   The State in opposing the appeal submitted that the appeal before court is not proper as leave   was not sought to file appeal out of time, that the contradictions on dress code of the appellant   was minimal and of no consequences and the appellant was properly identified as the offence was committed during broad day light, that cause of death was established by the doctor and   there was no contradiction, that  sentence imposed was proper as the offence provided for life   sentence and the authorities relied upon by the appellant, the State submitted the same,   were  persuasive and were not relevant as they dealt with a plea bargain.

20. I have considered the submissions by the appellant and the State as I note that this is first appeal, in which this court has to subject the entire evidence adduced before the trial court to a   fresh evaluation and analyse and draw its own conclusions.  I am alive to the fact that I neither    saw nor heard any of the witnesses and so I cannot comment on their demeanor.  I am in this   regard guided on the duties of a first appellate court by the Court of Appeal decision of Kiilu    and Another V. R (2005) 1 KLR 174 where the Court of Appeal addressed itself thus:

“an appellant in a 1st appeal is entitled to expect the whole evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision in the evidence.  The 1st appellate Court must itself weigh conflicting evidence and draw its own conclusions.”

21.   The appellant contend the learned trial Magistrate erred in coming to the conclusion that the  prosecution had proved the case against the appellant beyond any reasonable doubt and that by    failing to properly analyse the evidence, come to the only logical conclusion under the   circumstances and give the appellant the benefit of doubt.  In the case of Salim Juma Dimiro V  R Criminal Appeal No. 114 of  2004 at Mombasa the Court of Appeal stated that   revaluation of evidence is a matter of law.  In the case of Tetu Ole Sepha V. Criminal Appeal  No. 15 of 2008 at NairobiCourt of Appeal stated evaluation need not follow a  particular pattern and the style of evaluation was as of necessity a writing style, provided  the critical evidence was dealt with.  It is therefore my duty to examine if the lower court  erred in law in dealing with evidence on identification.

22.  In the case ofAbdala Bin Wendo V R (1953) 20 E.A. C.A. 166, it was held that where  the      conditions for identification are difficult  there is need for other evidence, circumstantial    or direct pointing at the guilt of the accused to be produced. In R. V. Turnbull  & Others    (1973) 3 ALL ER 549it was stated the factors to be taken into account where the only    evidence turns on identification by a single witness.  That include how long did the witness  have accused   under observation? what distance?  what light? whether observation was impeded    in anyway? Whether the witness had seen the accused before? How often?   The reasons for    remembering the accused?  How long elapsed between original observation and subsequent      identification?

23.  In the present case PW1 testified a young man in red shirt came from the lake side.  He came to   PW1's gate and he confronted the deceased and exchanged words with the deceased in presence    of PW1.  This was at 6 p.m. and PW1 was able to see the appellant.  PW3 testified that he saw    the appellant who he knew and used to see  him at the lake pick a fight with the deceased.  PW3   stated the appellant was in red shirt with white stripes (See correct word “shirt” and “white”    not “short”  and “while” as typed but as in the trial Magistrate's hand written notes)  PW3   testified he received  a telephone call from PW1 Grace Aoko his wife of attack of the deceased by the men around 6. 00 p.m.  He proceeded to the scene and found Morris Kitch the deceased     who described his assailants by their mode of dress and that they had gone towards the lake.     The deceased told PW3 one was dressed in red shirt (handwritten proceedings was shirt not   short as typed proceedings). And the other had black clothing.  PW3 and others and his other  brother went    towards the lake and found the people dressed as then described by the deceased    and picked  a fight with them, PW6 stated it was also around 6p.m. when he saw accused, the  appellant and   Benson come to where he was, that after a while he saw Lucas, PW3 come   around with a panga.  Lucas told him, David, the appellant and Benson had injured his brother.   PW5 knew the appellant as a village-mate  by his name.  PW6 stated at 6 p.m. Lucas, PW3   told him of injuries of his brother Morris Kitch.  He proceeded to where Kitch was who told   him his assailants one of whom had a red T-Shirt while the other had a black one.  PW6    proceeded to lake and found the assailant and the other.   PW7 testified at 6 p.m. that she was on        her way back and met two young men.  That while at her home she heard screams and rushed to    the scene and found appellant beating Morris Kitch.

24.     I have carefully considered the conditions at the time of commission of the offence from evidence of PW1, PW3, PW4, PW5, PW6 and PW7 and I am satisfied the offence was          committed during day time.  There was sufficient light for witnesses to see clearly what was  happening and therefore able to identify the assailants of the deceased.  They observed how the assailant were dressed and were consistent in their evidence.  They noted the appellant was dressed in red shirt which the deceased also mentioned.  I therefore find and hold the       conditions for identification of the assailants were favourable and there is no need of other          evidence, circumstantial or indirect pointing to the guilt of the appellant.  He was under    observation of PW1, PW3 and PW7 at close range when he was assaulting the deceased   with     aid of sunlight and the observation was not impeded in anyway.  That though some of the    witnesses saw the appellant on the material date of the offence, the appellant was under    observation of some witness for considerable time as he talked to the deceased and as he assaulted him severally.  They had even time to observe how the appellant was dressed.  I     therefore find that the identification  of the appellant by witnesses     was  proper and free from    mistaken identity.

25.  The learned trial Magistrate considered the prosecution's evidence especially evidence of  PW1   and PW3 who witnessed the assault of the deceased and found corroboration from evidence of   Doctor Joan Atieno.  The court held injuries were consistent with the beating of the deceased  he received from the appellant.  He also found that essential ingredient of manslaughter were   established and the case of death proved.  I am from the above satisfied that the trial Magistrate  properly analysed the evidence and came to logical conclusion.  I therefore find no merits in  the appellant's ground of appeal number 1 and 4 of the petition dated 10. 11. 2015.

26. The appellant contend that the trial Magistrate erred in failing to appreciate the obvious and glaring contradictions in the evidence adduced by several witnesses and thereby coming at a        wrong decision.  According to the appellant the obvious and glaring contradiction were from           evidence of PW1, PW3, PW4 and PW6 some of whom stated the assailant of the deceased was  wearing a red short, whereas others talked of red shirt.  According to the appellant PW1, PW3,   PW6 stated the appellant was dressed in red short whereas PW4 and PW6 talked of red shirt. This according to the appellant was unreconcilliable contradictions and which were glaring   contradiction which the trial court should have taken into account and found due to the glaring   contradictions the prosecution witnesses were incredible and their evidence unreliable.  The stated opposed the appellant's submissions and stated the errors were minimal and of no consequences in the prosecution's case.

27.  The crucial issue for consideration here is what did the trial Magistrate's handwritten         proceedings record state as  regard how the 1st accused was dressed.  I have had opportunity of          perusing the trial Magistrate's handwritten proceedings and I have noted PW1, PW3, PW4,    PW5 and PW6 in their evidence talked of red “shirt” word used not “short” as reflected in the   typed proceedings.  I therefore find that the issue of the “shirt” and “short” is resolved by hand   written proceedings.  I find no contradictions or inconsistencies of the prosecution's witnesses    on assailant's mode of dress.  I find no basis to hold their evidence was contradictory and  inconsistent in absence of evidence in support.  I however have to state that the Judiciary should assign the duty of typing and proof reading of the proceedings to serious and competent staff to   avoid situations similar to one we are faced with before submitting and certifying typed records   as correctly to avoid creating confusion in the proceedings.  I therefore find no merits in    ground number 2 of the appeal.

28.    It is further contended in this appeal for the appellant that the trial Magistrate erred in fact in failing to observe that the cause of death as stated by PW9 was herniation and that  sharp    object was used on the axial bone and ipso factocould not have been caused by the appellant.   PW9 in his evidence stated:-

“The nervous system had a brain stem.  The cause of death was herniation leading to  acute respiratory and cardiac arrest.  A sharp object was used on axial bone.”

29.   The postmortem form exhibit P1 by Dr. Joan Atieno showed as a result of examination she           formed the opinion of death was:

“Carnal/Herniation leading to acute respiratory and cardiac arrest.”

30.  The appellant's Counsel contended that “herniation” means abnormal protrusion of tissue through an opening.  He urged the same was caused by a sharp object.  From Wikipedia, the  free encyclopedia “Brain herniation” is defined as a potentially deadly side effect of very high  pressure within the skull that occurs when part of brain is squeezed across structures within   skull the brain can shift across skull structures as the falx cerebri, the tentorium cerebeli, and   even through the foramen magnum (the hole in the base of the skull through which the spinal   cord connects with the brain) Herniation can be caused by a number of factors that cause a mass  effects and increase intracronical pressure. That I noted PW9 did not explain what herniation is   hence the need for court to get the definition of herniation.  The evidence of PW1, PW3, and   PW6, is that the appellant hit the deceased on the face with his fist and he fell down.  That he     felled the deceased twice and continued hitting him.  That the deceased was bleeding.  PW9  noted during postmortem the deceased's body had injuries on the head tender limb (right) and l   ower eye (lacerations) that the nervous system had a brain stem which was consistent with the  beating the deceased had received from the appellant.  The fact that the deceased was bleeding   from injuries was on indication that a hard object was used to hit him and he fell on the ground    that caused bleeding.  The evidence connected no other person with the deceased's injuries other than the appellant and the fact that doctor gave the probable cause of injury as a sharp object does not mean the appellant might not have hit the deceased against a hard surface or object   when he was hitting the deceased who fall on the hard ground.  I find the trial court had  carefully considered the cause of death as stated in the judgment.  I find no merit in this ground     of appeal.

The Appellant gave unsworn statement in his defence admitting being at the scene of the incident but denied assaulting the deceased.  PW1's, PW3's and PW7's evidence placed the  appellant at the scene of the incident and they all testified they saw the appellant assault the   deceased.  He did not during cross-examination challenge evidence of PW1, PW3 and PW7. PW4 and PW6 testified that the deceased told them he was assaulted by the appellant.  The   Appellant did not challenge that evidence.  He did not at the earliest opportunity put to the witnesses through cross-examination that he did not beat the deceased.  His defence that he did    not assault the deceased in my view is an afterthought and a mere denial.  I find it to be without  merit.  The learned trial Magistrate correctly rejected the appellant's defence.

The State submitted that the appeal was filed out of time without leave of the court, contending judgment was delivered on 4th December, 2014 and petition was filed on 16. 11. 2015.  Section    349 of Criminal Procedure Code provides:-

“An appeal shall be entered within fourteen days of the date of the order or sentence  appealed against.”

The judgment in this matter was delivered on 4. 12. 2014.  The appellant had upto 18th   December, 2014 to file appeal.  The court record reveal that the appellant lodged his appeal on       18th December 2014 within time but prisons forwarded the appeal on 17th March 2015.  The  appeal was therefore filed within time.  The appellant's Counsel filed supplementary petition of   appeal on 15th November, 2015 without leave of the Court contrary to Section 350(1) 2(IV) of     C.P.C.which provides:-

“350. (1) An appeal shall be made in the form of a petition in writing presented by the  appellant or his advocate, and every petition shall (unless the High Court otherwise directs)     be accompanied by a copy of the judgment or order appealed against.

(2)      A petition of appeal shall be signed, if the appellant is not represented by an     advocate, by the appellant, and, if the appellant is represented by an advocate,  by the advocate, and shall contain particulars of the matters of law or fact in   regard to which the subordinate court appealed from is alleged to have erred,  and shall specify an address at which notices or documents connected with the  appeal may be served on the appellant or, as the case may be, on his advocate;   and the appellant shall not be permitted, at the hearing of the appeal, to rely     on a ground of appeal other than those set out in the petition of appeal;Provided that -

(iv)       save as provided in paragraph (I), a petition of appeal may only be  amended with the leave of the High Court and on such terms and   conditions, whether as to costs or otherwise, as the High Court may see fit to impose;”

34.  The State raised that objection that supplementary petition of appeal was filed without  leave    after the appellant's Counsel had argued the appeal.  A preliminary point of law should always   be raised and dealt with first but not in reply.  In view of that I find the State Counsel    preliminary objection was not well founded.  That if allowed at this stage it would in my view   result to unfair trial as the appeal shall be determined and on technicality going against the letter and of articles 159 (2)   (d) and 50 (1) of the Constitution of Kenya.  I therefore find in    view of the reasons stated herein above the supplementary petition of appeal though filed   without leave of the court should be considered as no prayer would be prejudiced by allowing      the same though no leave was sought.

35.    The appellant contended the sentence of 20 years is excessive and referred toR V Borongo     Kenyanya HCCR Case No. 45 of 2013 Kisiiin which case the accused who found his wife   engaging in sex with a man on his matrimonial bed, fought with wife's lover both of whom were   armed.  The accused was sentenced to serve 1 year non-custodial sentence.   This case and the     other 2  relied upon by appellant's Counsel are not relevant to the present case as they dealt with plea bargain and the deceased were the aggressors.  The appellant as rightly observed by the   trial court was the aggressor.  That from the evidence on record there is nothing to show his    relationship with PW3, the child who the deceased is alleged to have assaulted or quarrelled. There is no evidence of provocation of the appellant by the deceased nor is there      evidence of   him acting in self-defence.  In his mitigation he prayed for forgiveness and non-custodial  sentence.  The appellant picked fight with the deceased for no apparent reasons.  The offence  committed by the appellant is serious and there was no justification for it.  The appellant did not   hit the deceased once or twice but even when the deceased was felt he followed him and   continued hitting him.  The appellant's brutality resulted in loss of an old man's innocent life.  I   however find the sentence of 20 years to be excessive and need to be reduced. The appeal   against conviction is dismissed and appeal against sentence is allowed.   The sentence of 20  years is set aside and   substituted with a sentence of ten (10) years.

35.   The upshot is that conviction is upheld, sentence of Twenty (20) years set aside and     substituted with imprisonment of ten (10) years.

DATED AT SIAYA THIS 15TH DAY OF MARCH, 2016.

J. A. MAKAU

JUDGE

DELIVERED IN OPEN COURT THIS  15TH  DAY OF MARCH,  2016.

In the presence of:

Mr. Odhiabo  for the Appellant

M/s. Odumba for State

Appellant - Present

Court Clerk – Kevin Odhiambo

Court Clerk – Mohammed Akideh

J. A. MAKAU

JUDGE