John Onyango Ligare v Republic [2017] KEHC 263 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CRIMINAL APPEAL NO. 14 OF 2016

(ARSON)

(CORAM: J.A. MAKAU - J.)

JOHN ONYANGO LIGARE..................................APPELLANT

VS

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

(Being an Appeal against both the Conviction and Sentence dated 9. 7.2015 in Criminal Case No. 273 of 2014 in Siaya Law Court before Hon. H. Wandere – P.M.)

J U D G M E N T

1. The Appellant JOHN ONYANGO LIGAREfaced a charge of Arson contrary to Section 332(a) of the Penal Code.  The particulars of the charge are that on the night of 7th / 8th January 2014 at Sagundu villagein Siaya DistrictwithinSiaya County, willfully and unlawfully set fire to a grass thatched dwelling house valued at Kshs. 150,000/= belonging to one Roseline Akinyi Oduor.

2. The Appellant pleaded not guilty to the charge and after full hearing the Appellant was found guilty, convicted and sentence to serve 7 years imprisonment.

3. Aggrieved by both the conviction and sentence, he preferred this appeal setting out what he referred to as the mitigation grounds of Appeal being as follows: -

a) That, the Appellant pleaded not guilty to the offence and hence sentenced to serve a sentence of seven years after a complete trial.

b) That, the Appellant mitigated and rather not heard so with reasons prayed that he be given a lesser sentence rather was sentenced still to serve the long sentence without consideration of my mitigation.

c) That,  the Appellant’s mitigation not being considered by the trial court, I wish that the Honourable High Court does not find merit in reconsidering his sentence as too harsh reasons herewith that I have a tender family that solidly depends on his as the sole breadwinner.

d) That, the Appellant is an old parent for which with the Court’s kind permission, he wished to apply to the Honourable High Court to reconsider his sincere mitigation and find it necessary to deem as it pleases.

4. At the hearing of the appeal, the Appellant appeared in person and urged that he is challenging both the conviction and sentence. He submitted that he had not pleaded guilty, that the conviction was not proper and that the sentence was harsh, urging the Court to quash the conviction and set aside the sentence.

5. M/s Odumba, Learned Counsel, opposed the appeal pointing out that the Prosecution indeed proved that two houses were burned down to ashes.  That PW1, 2, 3 and PW4 confirmed that was so that the Appellant was recognized as the person who had set the two houses on fire and that there was no other person found at the scene other than the Appellant and that the Appellant failed to give an explanation why he was found at the scene while his home was far away.  She urged that there is no other conclusion save that it was the Appellant who had set the Complainant’s house on fire simply because the two had parted ways.  On the sentence, the State Counsel, urged the offence of Arson carries a maximum of life sentence and the sentence meted against the Appellant of 7 years was lenient, urging the Court not to interfere with the sentence.

6. I am the First Appellate Court and as expected of me have to subject the entire evidence adduced before the Trial Court to a fresh evaluation and analysis while bearing in mind that I neither saw nor heard any of the witnesses and have to give due allowance.  I am guided by the Court of Appeal case which sets out the principles that apply on a first appeal.  These are set out in the case of ISSAC NG'ANGA ALIAS PETER NG'ANG'A KAHIGA V REPUBLIC CRIMINAL APPEAL NO. 272 OF 2005 as follows:-

“in the same way, a court hearing a first appeal (i.e. a first appellate court) also has duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the Trial Court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same.  There are now a myriad of case law on this but the well-known case of OKENO -VS- REPUBLIC (1972) EA 32 will suffice.  In this case, the predecessor of this court stated:-

The First Appellate Court must itself weigh conflicting evidence and draw its own conclusion.  (Shantilal M. Ruwala Vs. R. (1957) E.A. 570).  It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions.  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 the witnesses (See Peters Vs. Sunday Post, (1958) EA 424)”

7. The facts of the Prosecution case are simple and form part of the record of appeal.  The prosecution called four (4) prosecution witnesses in support of the charge.  PW1, the Complainant, was sleeping at her house at the material night, while her children PW2 and PW3 slept in separate houses within the same compound. That while asleep, PW1’s daughter, PW2, called her and told her she had heard some movements outside. PW1 did not see anyone outside.  PW2 on hearing footsteps, from outside, proceeded to her brother’s simba house; PW3, who told them someone had hit his door; that he saw an intruder; chased him and got into a nearby bush.  PW2 and PW3 moved to the scene with a lamp and saw the person who they recognized as John Onyango Ligale, who told them he had missed direction to his home and appeared drunk.  He then left.  PW2 went to sleep with PW1 in the small new house; from where they heard footsteps outside and suddenly saw fire on the roof of their house which was grass thatched.  They screamed for help and the people who came for their rescue, told them they met John Onyango Ligale, who PW2 knew as he had inherited her mother PW1.  PW3 evidence is that his mother’s two houses were set on fire on the night of 8/1/2014 and when he came out from his simba house, he saw someone running from his mother’s house, that was on fire and jumped over the fence; who he recognized as John Onyango Ligale, who he described as a relative and described where he came from.  He stated he had on that night seen the Appellant at 10. 00p.m. while hiding at the fence armed with a matchbox, after they shone a light at him, when PW2 and her grandmother came.  The Appellant claimed he was drunk and used the matchbox to light the cigarette and PW3 noted he was in brown jeans and a T-shirt with holes in it.  That late at 12 midnight, PW3 saw the Appellant in the same clothes as he was running from the burning house and jumped over the fence.  That PW3 and the others gave the name of the Appellant to the people who came to their aid and also the police.  On 7th April 2014, PW3 met the Appellant at Kobare Trading Centre and with the help of Boda Boda riders had the Appellant arrested; escorted to Siaya Police Station, handed him over to PW4, who re-arrested the Appellant.  That investigation was carried our; photograph of the burnt house taken and produced by PW4 as exhibit P1 and covering report as exhibit P2.

8. The Appellant on being put on his defence, he opted to give unsworn statement.  He stated that he was drunk and that he did not know what he was doing, urging the Complainant is known to him, that he had put up a house for her but denied setting the Complainant’s house on fire.  He added that he had inherited the Complainant but she accused the Appellant of seducing her daughter Maureen (PW2).

9. The first issue for consideration iswhether the Prosecution has proved the offence of Arson against the Appellant?  Section 332(a) of the Penal Codestates as follows: -

“332. Any person who wilfully and unlawfully sets fire to -

(a) any building or structure whatever, whether completed or not; or………..is guilty of a felony and is liable to imprisonment for life.”

In the instant case PW1, PW2, PW3 and PW4 in their respective evidence were categorical that two grass thatched houses of the Complainant were set on fire during the night of 7th/8th January 2014.  PW4 produced photograph exhibit P1, being a photograph of the burnt house and covering report exhibit P2, which confirm the burnt structure was a building being a house of the Complainant.  The houses were burnt at night.  The burning of the houses, PW1, PW2 and PW3 proved was through unlawful act of an arsonist.  I therefore find and hold the prosecution proved that the complaint’s houses were willfully and unlawfully set on fire by an arsonist at the material night.

10. Who set the Complainant’s house on fire at the material night?  The offence was in this case committed at night and no one saw the person who set the houses on fire; however, the prosecution case is purely based on circumstantial evidence.  In the instant case there had been no eye witness to the setting of the Complainant’s houses on fire.  In the case of Elizabeth Gatiri Gachanja and 7 Others V Republic [2011]eKLR, the Court of Appeal held this: -

a) There had been no eye witness to the death of the deceased.  in such a case, the test to be applied was clear: In order to draw inference of guilt from circumstantial evidence, the facts of the case must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, the burden of proving facts which justify the drawing of this inference is always on the prosecution and never on the accused.

b) It was necessary for the court to be sure that there were no other co-existing circumstances which could have weakened or destroyed the inference of guilt.

c) In law, there was no set number of witnesses required to prove a fact.  Even the evidence of one witness could have formed the basis for a conviction as long as the Court had found the evidence credible. Where such evidence was on the identification of a person who claimed that he was not properly identified, then the Court had to examine such evidence with the greatest care.

d) There was no reason to doubt PW1’s evidence that he had observed and talked to the Appellants in broad daylight and thus he had a good recollection of their features. He had also identified them at identification parades which had subsequently been organized by the police.

e) The chain of evidence from the time they were seen with the deceased to the time that he was found dead was not broken and in the absence of any other reasonable explanation as to how he had met his death. Fingers pointed to them and to no others as the perpetrators of the murder.  The Court was therefore satisfied that even without any other evidence; the circumstantial evidence that the Appellants were the last people seen with the deceased in their vehicle was enough to point a finger at them to the exclusion of any other person.

11. In the instant case, PW2 and PW3 saw and talked to the Appellant at around 10. 00 pm within the Complaint’s compound after PW3’s door had been hit by an intruder.  PW2 and PW3 had a lamp which enabled them to see and recognize the Appellant, who they had known as a relative and an inheritor of their mother (PW1).  That PW3 saw the Appellant 2 hours, after the first incident which had occurred at 10. 00 pm, running away from the Complainant’s houses wearing the same clothes, he had seen him wearing earlier on at 10. 00pm; that while Complainant’s neighbours were coming to put off the fire, the Appellant was running away instead of going to the aid of the Complainant, who he had inherited. The fact, that they had separated cannot be a justification for the Appellant, ran away if the Appellant was as he urged on innocent passerby. I find the facts of the case are incompatible with the innocence of the Appellant and are incapable of explanation upon any other reasonable hypothesis than that of his guilt.  The Prosecution witnesses stated the only intruder, they saw at the compound at 10. 00 p.m. and the only person seen at mid night immediately after the Complainant’s houses were set on fire, was the Appellant and no other person.  In view of that evidence, I find no other co-existing circumstances which could have weakened or destroyed the inference of guilt.  I find no reason to doubt evidence of PW2 and PW3, who corroborated each other on the material evidence on the recognition of the Appellant, and whose name they gave to the people who came to their aid as well as the police, when they recorded their statements. There was sufficient light from the lamp and the matchbox light which the Appellant used when he lit the cigarette.  The Appellant was well known to PW2 and PW3 who did not only see him but talked to.  He was recognized by the two Prosecution witnesses as a person they had known and even heard his voice.  I find that he was not mistakenly recognized.  Further the chain of evidence from the time, the Appellant was seen at the Complainant’s compound upto time, he was seen running from the burning house was not broken and in absence of any other reasonable explanation as to what the Appellant was doing at the Complainant’s compound at the time the houses were set on fire and why he was running away instead of assisting in putting off the fire, the finger points at the Appellant and no other person as the perpetrator or the arsonist.  This Court is therefore satisfied that even without any other evidence, the circumstantial evidence that the Appellant was the only intruder seen within the Complainant’s compound; seen with a matchbox lighting a cigarette was enough to point an accusing finger at him to the exclusion of any other person.  In view of the above, I find the Appellant was properly convicted as the person who had willfully and unlawfully set the Complainant’s houses on fire at the material night.

12. The Appellant’s unsworn defence was considered and found to be devoid of merits.  I have considered the Appellant’s unsworn defence and find that the Appellant’s defence was a mere denial and find that it has not shaken the Prosecution case and I dismiss the same as a mere denial.

13. The Appellant contends the sentence meted against him is harsh urging for a lesser sentence.  He urged his mitigation was not considered.   He urged that he has a tender family and he is an old man.  I have considered that the Appellant is a first offender, that he had inherited the Complainant, with whom they separated for undisclosed reasons; that he sponsored the construction of some, of houses burnt, however, he should have known the Luo Custom when it comes to benefit that an inheritor gets, when the union becomes sour, and should not have burnt the houses, but should have taken the issue to the Luo elders for resolution rather than setting the houses on fire simply because he contributed to their construction.  In view of the mitigation offered by the Appellant and being a first offender, as observed by the trial court and in view of the value of the burnt houses and the sentence meted, the sentence meted in my view is harsh and excessive and ought to be reduced.

14. The upshot is that the conviction is confirmed.  The sentence of 7 years is set aside and substituted with three (3) years from date of sentence.  DATED AND SIGNED AT SIAYA THIS 1ST DAY OF DECEMBER 2017

HON. J.A. MAKAU

(JUDGE)

DELIVERED IN OPEN COURT.

In the presence of:

Appellant in Person - Present

M/S Odumba:for State

Court Assistant:

1. Kevin Odhiambo

2. Beryl Kachuodho

HON. J.A. MAKAU

(JUDGE)