Gitonga Nkou v Republic [2019] KEHC 2665 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

HCCRA NO. 24 OF 2018

GITONGA NKOU......................................................APPELLANT

VERSUS

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

(An appeal against the decision of Hon. S.M. NYAGA (SRM) in Marimanti  Principal Magistrate's Court Criminal Case No.58 of 2017 dated on 2/8/2018. )

J U D G E M E N T

1. GITONGA NKOU, the Appellant herein was charged with offence of  malicious damage to property contrary to Section 339(1) of the Penal Code   with the particulars that on 24th August 2016 in Mukothima Location in  Tharaka North within Tharaka Nithi County he jointly with others not before  the court willfully and unlawfully damaged 25 water pipes valued at  Kshs.150,000/- the property of Eliud Mwenda Kaburu.  The Appellant  denied committing the offence but the trial court in undated judgment found  him guilty convicted him and  sentenced to serve 7 years imprisonment.  I  will come back to that issue later in this judgment about that anomally but  suffices to state that the Appellant felt aggrieved on his conviction and  sentence and preferred this appeal raising  the following grounds namely:-

i. That  the trial magistrate erred in law by failing to properly analyze the evidence on record thereby ending up with unsafe conviction.

ii. That the trial court erred by basing the conviction on uncorroborated, doubtful, contradictory, unreliable and incredible evidence by the prosecution witnesses.

iii. That the trial magistrate considered extraneous matters.

iv. That the trial magistrate erred by dismissing the defence before analyzing it.

v. That the Appellant plea to visit the scene of crime was rejected.

vi. That trial magistrate erred by trying and convicting the same Appellant having previously tried, convicted and sentenced him in a related matter vide Marimanti Criminal Case No.523 of 2015

vii. That the trial magistrate erred by making a self-defeating and contradictory judgment which was not based on evidence.

viii. That the trial magistrate was biased against the Appellant.

ix. That the sentence was excessive and never took into consideration pre-sentence report.

3. In his oral submissions at the hearing of this appeal the Appellant appearing  in person contended that he was arrested owing to a report he made on his 8  goats which he claimed had been driven away by the Appellant.

4. The Appellant contended that the person who testified that he had destroyed  25 pipes is the same person who had taken his goats.

5. He further contended that the complainant rather Eliud Kaburu had a land  dispute with his father which dispute was determined in court in his father's  favour.  He claimed that the High Court in Meru determined that his father  was to continue staying on 98. 2 acres while Father Eliud was to reside on 82  acres.  He accused the complainant for frustrating efforts to execute the  decree in the civil case.  He contended that his efforts to pursue for the  execution of the judgment made the complainant level false accusations  against him  contending that he has been arrested four times as a result.

6. The Appellant faulted the prosecution for charging him for destroying 25  pipes but that only 2 were tendered in evidence and that the trial court  decline to visit the scene to check if 25 pipes were destroyed.

7. The Appellant further contended that he was subjected to unfair trial as he  was not given witness statements prior to trial and accused the investigating  officer for not supplying him with statements.

8. The Appellant further claimed that the complainant went to his home on 6th  October 2017 and shot him with a poisoned arrow which caught him on the  hand.  He lost the finger and showed this court the permanent scar on the  hand with a lost ring finger.  He tendered a P3 form with leave of this court  that indicated that the injuries he had suffered were classified as grievous  harm.

9. He also claimed that on the same day Father Eliud Kaburu with Godfrey  Nyinya went and set his house  ablaze and that he was helpless because he  had been seriously injured with a poisoned arrow and could do little to  salvage his property.

10. The Appellant contends that the charges were fabricated and that he had not  wronged anyone.  He wondered how he could have destroyed  25 pipes  within an hour as claimed by prosecution witnesses.

11. The Respondent opposed this appeal.  The Respondent through learned  counsel contended that the Appellant could have tendered the P3  during his  trial.  Mr. Momanyi further contended that the Appellant's claims that he  was no given witness statements were unfounded as the trial court had  ordered before the trial commenced that the defence be supplied with  the  statements.

12. The Respondent contends that the trial court did visit the scene because the  Appellant waived the site visit.

13. The Respondent faults the Appellant for causing numerous adjournments  which forced the trial court to proceed in the absence of his advocate.  It has  also contended that though sentence was passed by a different magistrate  from the one that rendered  conviction, the sentence was valid as it was  passed in compliance with Section 200(2) of Criminal Procedure Code.

14. Analysis & Determination

This court has considered this appeal and the response made.  I have  perused the charge sheet and the evidence tendered.  The charge as observed  above related to malicious damage to property contrary to Section 339(1) of  the Penal Code which provide as follows;

"Any person who willfully and unlawfully destroys or damages    property is guilty of an offence, which unless otherwise stated is a    misdemeanor and is liable, if no other punishment is provided, to    imprisonment for five years."

In the instance, the Appellant was sentenced to serve 7 years imprisonment.

It is obvious therefore from the onset that the sentence imposed by the trial  court was excessive and illegal because the law provides for a maximum  sentence of 5 years.  If this appeal was based solely on this ground , I would  have  no hesitation in allowing it and imposing the right sentence.  However  this appeal is also  against conviction and I will consider the evidence  tendered by the prosecution to see if it supported the charged and sustained  conviction.

15. To begin with the charge sheet, the particulars indicated that the Appellant  had maliciously destroyed 25 pipes worth Kshs.150,000/-.  However going  by the evidence tendered by Julius Mbaabu (PW2), the pipes destroyed were  3 in number but he identified 2 pipes in court during trial.  The investigating  officer Ronald Ibwaga (PW4) produced 3 pipes in court as P. Exhibit 1  begging the question where the 3rd pipe was when PW2 testified and only 2  pipes were marked for identification.  What was however glaring at the trial  is the inconsistency of the evidence tendered vis viz the particulars of the  charge.

16. The Appellant denied committing the offence and even requested the trial  court to visit the scene of crime to confirm the veracity of destructions of  pipes but the trial court for  some reason failed to do so.  I have perused  through proceedings from that court and contrary to assertions by the  Respondent, the Appellant never waived his request/application for the trial  court to visit the scene of crime.  The proceedings of 26th June 2018 shows  that the trial court on its  own motion decline to visit the scene "owing to  pressure  of work". The question of the number of pipes  destroyed was  therefore not established.  The  evidences tendered did not support the  charge.

17. I also find that while the complainant, Father Eliud Mwenda (PW5) claimed  that pipes and other equipment which he did not reveal was worth  Kshs.150,000/-, he did not state the number of pipes destroyed or reveal the  nature of equipment purportedly  destroyed.  The other equipment was also  not tendered in evidence and this shows that there is some disconnect  between the  evidence tendered by the complainant and the particulars of the  charge sheet presented in court.  In such circumstances the evidence  tendered could not sustain a charge.  The complainant also testified that he  did not witness the Appellant destroying the pipes and relied on report made  to him by his workers.

18. When one considers the evidence of witnesses who claimed to have been  eye witnesses, there are inconsistencies and contradictions while Edward  Gitemba Muriu (PW1), the watchman at Mukothima Girls School stated that  he found Appellant and 3 others destroying pipes, PW2 (Julius Mbaabu)  stated that he only saw the Appellant and that the goats belonging to the  Appellant destroyed the pipes that is why he detained them in school.  PW3  (Wilfred Nthiga Mukunya) testified that he was only informed of the fact  that pipes had been destroyed.  He did not count the number of pipes  destroyed which begs the question as to where and how was the number of  destroyed pipes reached to reflect 25 pipes as per the charge sheet presented  to court.

19. In the face of the above inconsistencies, it is clear in my view that the  prosecution's case was not proved.  In fact there was no basis in my view to  place the Appellant in his  defence in 1st place because there was no prima  facie case against him.

20. The Appellant raised an important point in this appeal which was the fact  that the charges were fabricated because of a land dispute which he claimed    had adjudicated upon and a decision made in their favour by the High  Court  in Meru  (vide Meru HCC No. 235 of 1992).  The Appellant with the  leave  of this court supplied the court with a decree from the High Court in  Meru  showing that a case between Ndume Nturu & 53 others -vs- Catholic Diocese of Meru & Gatunga Catholic Mission was settled with 82 acres  going  to Gatunga Catholic Church and 98. 2 acres to the Plaintiffs.  The  claims by the Appellant were well grounded and that informed this court's  exercise of its discretion under Section 354 of the Criminal Procedure  Code to allow the Appellant adduce additional evidence for consideration by  this court.  The proceedings from the lower court indicates that the  complainant was  unhappy with the decision in the land case because  Wilfred Nthiga Mukunya (PW3)  told the trial court that they were  dissatisfied  with that decision and were appealing against it.

21. There was evidence before the trial court that there was perhaps more in the  criminal case than just the allegations of malicious damage to property.  The  trial court  misdirected itself in that respect and this court finds that if the  said  court  had addressed that issue then perhaps its conclusion would have  been different.

22. I also find the allegation made by the Appellant that he was seriously  assaulted by the complainants and his goons who shot him with a poisoned  arrow, warranted serious consideration by trial court.  I summoned the OCS  Gatunga Police Station to this court with a view to finding out how could   the police disregard a report on grievous harm (appellant lost his pinky  finger and he has a P3 to that effect which he also tendered before this court)  and instead concentrated on malicious damage to property.  Sincerely  speaking which one is more important? Property or the life and health of a  person.  The OCS fumbled when put to task as to why double standards were  applied in the case because he admitted that a report on grievous harm was  made by the Appellant but that they abandoned investigation on the  "advise" from Office of the Director of Public Prosecution.

23. This court finds that the allegations made by the Appellant that the charges  were fabricated appears well grounded because the OCS also admitted that a  report about the missing goats were made and PW2 admitted at the trial  court that he detained the goats at school on suspicion that they had damaged  the pipes.  This  court finds that the prosecution's case at the trial seriously  exposed the malicious intentions of the complainant who appeared "well  connected" with the police perhaps and that could explain why the  Appellant felt that a lot of injustice had been visited upon him.  In my  considered view, the trial magistrate erred by not addressing those concerns  because they were serious enough to warrant further interrogation.

24. Finally, as I observed in the beginning of this judgment, it appears that the  prosecution's case against the Appellant was doomed to fail from the start o  the end. The evidence tendered against the Appellant was shaky, the and did   not support the charge, the sentence meted out was tainted with illegality and  the judgment itself failed to comply with the provisions of Section 169(1) of  the Criminal Procedure Code as it was not dated as required by law.

The long and short of this is that for the aforesaid reasons, this court finds  merit in this  appeal.  Both the conviction and sentence are reversed.  The  Appellant shall  be set free unless otherwise lawfully held and because he is  out on bond, the surety is discharged and the security be released back to  him.  The Appellant is of course at liberty to take any further action he  may consider necessary to addresses  his plights and losses incurred due  to the complainant's actions.

Dated, signed and delivered at Chuka this 28th day of October, 2019.

R. K. LIMO

JUDGE

28/10/2019

Judgment signed, dated and delivered in the presence of Appellant in person  and Momanyi for State/Respondent.

R.K. LIMO

JUDGE

28/10/2019