Leramat Asir v Republic [2017] KEHC 775 (KLR)

REPUBLIC  OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL APPEAL NUMBER  88 OF 2015

LERAMAT ASIR...........................APPELLANT

VERSUS

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

(Being an appeal against the Judgment of Hon. R.G. Mundia – RM,

delivered on 14th  July 2015 in Isiolo Cr Case No.522

at Isiolo Chief  Magistrate's Court)

J U D G M E N T

The appellant was charged with the offence of injuring an animal contrary to section 338 of the Penal Code.  The particulars of the offence are that the appellant on the 3rd November 2014 at Shambani village in Isiolo County willfully and unlawfully killed a she-goat the property of Paulina Akiru Kionga.  The appellant was also charged with two counts of creating disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code.  The alleged incident occurred on 1st November 2014 and 8th November 2014 respectively.

The trial court convicted the appellant on all the three counts.  The appellant was sentenced to serve seven (7) years imprisonment on the 1st count of killing the goat and six (6) months for the 2nd and 3rd counts.  The sentence is to run concurrently.  The grounds of appeal are that there was an existing grudge between the appellant and the complainant, that the prosecution failed to summon vital witnesses, that the prosecution's evidence is inconsistence and did not prove the case beyond reasonable doubt and finally that the trial court erred by failing not to find that the appellant's defence disproved the prosecution case.  The appellant filed written submissions.  It is submitted that the complainant alleged that there was a previous incident involving another goat.  That proved that there was a grudge between the two.  It is also submitted that there is inconsistency in the prosecution evidence.  PW1 alleged that the offence was committed at 19. 00 hours while PW3 claimed that it was committed at 10. 00 hours.  PW1 and PW3 were together.  PW3 alleged that he saw the appellant hitting the dead goat with club while PW1 did not see that incident.  There was a land dispute between the appellant and his family members.

Mr. Odhiambo, prosecution counsel, submitted that the case was proved beyond reasonable doubts.  It was a family dispute as the complainant is related to the appellant.  The sentence is harsh and the period served is sufficient as the offence involves only one goat.

This is a first appeal and the court has to evaluate the evidence afresh and reach its own conclusion.  PW1 Paulina Akiru Kiluyo was the complainant.  On the 3rd November 2014, he released her goat to graze.  After sometime she started looking for her goat.  She went to the appellant's house and met one Akunoit Ekunene who told her that the appellant had killed her goat.   She confronted the appellant who ran away.  She saw the dead goat lying behind the appellant's house.  She screamed and neighbours went to the scene.  They looked for the appellant the whole day but did not get him.  Photographs of the dead goat were taken.  The appellant had told her that he would kill her goat if they strayed to her compound.

PW2 Joseph Ekiru Lonabusu is a brother to the appellant.  On the 8th November 2014, he learnt from their mother the appellant had killed her goat and fled.  He called his other brother by the name Murmur who confirmed that the appellant was at his house in Nanyuki.  He asked him to take the appellant to Isiolo.  The appellant was taken to Isiolo and upon seeing PW2 he tried to attack him.  PW2 raised alarm and members of the public arrested the appellant and took him to Shambani AP Post.  PW3 Paulina Akunoit Lekitareresides at Shambani village.  On 3rd November 2014 she went to the appellant's house.  She saw the appellant hitting a goat with a rungu.  She screamed and people went to the scene.  The appellant ran away.  The goat died.  There was another woman at the compound.

PW4 Losike Akwei is the appellant's mother.  She testified that sometimes in 2014 the appellant cut down twenty one (21) trees.  She informed the police and the appellant ran away.  The appellant returned home later and chased her away.  He chased her away and she went to live with her friend.  She reported the matter at the Shambani AP Post.  On the 3rd November 2014, she heard screams and saw PW3 who told her that the appellant had killed her goat and ran away.  She saw the carcass.  PW5 David Ekidor was informed about the incident.  On 8th November 2014, together with other people managed to arrest the appellant and took him to the AP Post.  PW6 Corporal Adrian Kinoti was stationed at the Isiolo Police Station.  He investigated the case and caused the appellant to be charged with the offences.  It is his evidence that the dead goat was worth kshs.15,000/= as it was a grade she-goat.  The appellant was applauded by villagers and taken to the police station.

In his sworn defence, the appellant testified that on 28th September 2014 he was at Archers Post where he had gone to sell cabbages.  He stayed there for four days.  When he returned home he found that his mother and his brother PW2 had sold part of the land.  He had objected to the sale of the land.  He went to talk to PW2 but PW2 attacked him with a rungu.  He reported the matter to the area assistant chief.  He was later arrested on the allegations that he had killed a goat and taken to the police station.  He denied committing the offence.

The issues for determination is whether the appellant killed the goat and whether he created disturbance.  According to PW3, she saw the appellant hitting the goat with a rungu.  PW1 went to the appellant's house and saw the carcass.  It is the evidence of PW4, the appellant's mother, that she heard PW3's screams and went to the scene.  PW3 informed her that the appellant had killed the goat and ran away.  The defence evidence is to the effect that the appellant's mother and brother sold land.  That has nothing to do with the killing of the goat.  A photograph of the dead goat was taken and produced in court.  PW1 was the complainant and there is no evidence that she is related to the appellant.  I do find that the main count of injuring an animal was proved beyond reasonable doubt.  The appellant's contention that there was a grudge between himself and the complainant does not disprove the fact that PW1's goat was killed.  I do find that the prosecution proved its case beyond reasonable doubt on that count.

With the regard to the charge of creating disturbance, count two indicate that on the 1st November 2014, the appellant chased away Losige Akweiwith a knife.  Count three indicate that the appellant chased Joseph Ikiruwith a rungu on the 8th November 2014.  Joseph is PW2 and a brother to the appellant.  He testified that when the appellant saw him he tried to attack him.  He raised alarm and members of the public went to arrest the appellant.  The other complainant for count two is the appellant's mother.  She testified that the appellant chased her from the home.  That incident was also reported to the police.  I do find that the other two counts were also proved.

From the evidence on record I do find that the prosecution proved its case beyond reasonable doubt.  Section 338 of the Penal Codeprovides that for a term of imprisonment of fourteen (14) years.  The appellant was sentenced to seven (7) years imprisonment.   Before sentencing  the appellant the trial court called for a probation officer's report.  The report was done on the 6th July 2015.  According to the report, the appellant is violent, aggressive and irresponsible person.  He has disturbed his family and even threatened to rape his mother and kill her.  The trial court correctly observed that it was not bound by the report and sentenced the appellant to serve seven (7) years imprisonment.  This was on 14th July 2015.  The appellant has served two (2) years imprisonment.  He has served the six (6) months sentence for count two and three.  It is clear that appellant was a first offender as per the record.  However, it is established that a custodial sentence was ideal in the circumstances.  Mr. Odhiambo is of the view that the period already served is sufficient punishment.  I will agree with that submission and set aside the seven (7) years imprisonment sentence imposed by the trial court.

In the end, the appeal on conviction is disallowed.  The sentence of seven years imprisonment is set aside and replaced with the period already served.  The appellant shall be set at liberty unless otherwise lawfully held.

Dated signed and delivered at Meru this 21st  day of July  2017.

SAID CHITEMBWE

JUDGE