Mutisya v Republic [2022] KEHC 15446 (KLR)

Mutisya v Republic (Criminal Appeal E015 of 2021) [2022] KEHC 15446 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15446 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E015 of 2021

GV Odunga, J

October 6, 2022

Between

Moses Ndereva Mutisya

Appellant

and

Republic

Respondent

(An appeal against both conviction and sentence of the Mavoko Chief Magistrate’s Court Criminal Case No. 262 of 2019, Hon. E. Michieka (PM) on 3rd February, 2020)

Judgment

1. The appellant herein, Moses Ndereva Mutisya, was charged with the offence of attempted murder contrary to section 220(a) of the Penal Code. The particulars of the offence being that on the 20th day of April 2019 at Slota Area in Athi River Subcounty within Machakos County, with intent to cause unlawfully the death of Miriam Nthenya Musau by pouring petrol at her house and setting it on fire. In the second count, he was charged with the offence of arson, particulars being that on the same date at the same place he attempted to unlawfully set fire a building the property of Janet Kimuyu.

2. After hearing the evidence, the learned trial magistrate found the appellant guilty, convicted him and sentenced him to serve 10 years imprisonment.

3. From the evidence, on record, the complainant who was the appellant’s wife was in their house on April 20, 2018at around 6pm when the appellant went to the house tried to hit the complainant with a gas burner but the complainant ducked. The appellant then tried to light the gas but failed to do so. He then tried to trip the electricity meter but the same was switched off by the complainant’s son from the mains after which thecomplainant got out of the house. When the appellant pursued her outside, the complaint ran back into the house and locked herself inside. Soon thereafter the complainant heard the appellant banging the door and the window. She then smelt petrol fumes and the appellant threw an already lit container with petrol into the house and the fire started in the house burning some of the household items.

4. However, the complainant, with the assistance of the other people, managed to put off the fire. Though those who had gathered outside threatened to lynch the appellant, he was instead was arrested and taken to the police station.

5. According to the complainant, the appellant had threatened to kill her and to kill himself as well as the children. It was her evidence that though the appellant was drunk, he was not too drunk to know what he was doing.

6. At about 6pm that day, PW2, Janet Kimuyu, who was in her house saw the appellant who was quarrelling with the complainant, chasing the complainant who ran into her house and locked herself in. the appellant then went to PW2’s shop and after abusing PW2 issued threats to kill someone and went away. Later, at 7pm, PW2 heard screams and when she went outside, she saw fire inside the appellant’s house which she helped put off. According to her, the fire had burnt some household items. The appellant was then escorted to the police station by the crowd.

7. PW3, Justus Mumina, had gone to the shop at 6. 30pm on April 20, 2019 when he found a man and a woman arguing and returned to his house. Later at 9pm he heard screams and when he went out, he found a crowd and saw fire inside one of the houses near the shop. He then went and switched of the mains. By then the accused had been detained by the crowd but he managed to escape when the fire was being put off. However, on his return, the appellant was arrested and handed over to the police at about 10pm. According to PW3, he had earlier seen the appellant chasing the complainant around.

8. The caretaker of the premises occupied by the appellant and the complainant, PW4, Jonathan Kioko, testified that on August 20, 2019 while he was taking a bath he smelt petrol at around 6. 30pm. he was called by PW2 who informed him that the appellant and his wife were causing a commotion within the plot. When he went out he found the appellant on the corridor and when he inquired from him whether he could smell some petrol, the appellant denied, and he returned back into his house. Shortly thereafter, he saw a big fire both outside and inside the appellant’s house and as he was assisting to put the fire off, the appellant ran away. By then the fire had burnt some household items. Later the appellant returned and was apprehended and handed over to the police.

9. PW5, PC Wycliffe Ogechi, the investigating officer was allocated the case when the appellant was already in custody. After recording the statements from the witnesses and collecting the exhibits, he charged the appellant with the offence.

10. Upon being placed on his defence, the appellant opted to give sworn evidence in which he stated that he had differences with his wife the complainant over demands by the complainant for money. After thecomplainant locked herself inside the house PW4 together with other people alleged that he had created disturbance and he was arrested and charged with the offence. He denied having committed the offence.

11. In this appeal, the appellant contends that the prosecution failed to prove its case beyond reasonable doubt; that the trial court relied on inconsistent and contradictory evidence and that the court failed to take into account the period he has spent in custody.

Determination. 12. In this case the prosecution’s case is that on April 20, 2019the appellant returned home and picked a quarrel with his wife, the complainant. After failing in his attempts to assault her, he got hold of some petroleum substances which he lit and threw into the house where his wife was locked in. However, with the help of the neighbours the complainant managed to put off the fire after which the appellant who had earlier on managed to escape was arrested and taken to the police station and after the investigations was charged with the offence.

13. On his part the appellant denied the and blamed PW4 and other people as the ones who instigated the whole case.

14. This court’s duty on a first appeal was restated in Okeno v Republic [1972] EA 32 as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R(1957) EA 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 v Sunday Post [1958] EA 424. ”

15. The offence of attempted murder with which the appellant was charged fall within the category of offences known as inchoate offences. These type of offences were dealt with by Mativo, J extensively in the case of Moses Kabue Karuoya v Republic[2016] eKLR where the learned Judge expressed himself as follows:“In the case of Bernard K Chege v Republic this court had the occasion to address its mind and to define in detail ingredients of incomplete offences also described as inchoate offences. Inchoate crimes are incomplete crimes which must be connected to a substantive crime to obtain a conviction. Examples of inchoate crimes are criminal conspiracy, criminal solicitation, and attempt to commit a crime, when the crime has not been completed. It refers to the act of preparing for or seeking to commit another crime. An inchoate offense requires that the accused have the specific intent to commit the underlying crime. An inchoate crime may be found when the substantive crime failed due to arrest, impossibility, or an accident preventing the crime from taking place. Strictly inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves. It can thus be appreciated that it could extend the criminal law too far to reach behind those acts and criminalize behaviour that precedes those acts. Every inchoate crime or offense must have the mens reaof intent or of recklessness, but most typically intent. Specific intent may be inferred from circumstances. It may be proven by the doctrine of "dangerous proximity", and the presence of a "substantial step in a course of conduct". The dividing line between legal and illegal conduct is whether there is a "substantial step" towards committing a specific crime. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt or to prepare to commit the offence. The essential ingredients of an attempt to commit an offence have been laid down in the following words:-“In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly to commit it. If the third, that is, attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete but the law punishes the act. An ‘attempt’ is made punishable because every attempt, although it fails of success, must create an alarm, which, of itself, is an injury, and the moral guilt of the offender is the same as if he had succeeded”Thus, for there to be an attempt to commit an offence by a person, that person must:-a.Intend to commit the offence;b.Begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve;c.Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence,But in fact he does not commit the whole offence. For the offence of or attempting to commit an offence to be proved, the prosecutor must prove each of those three elements beyond reasonable doubt.The act relied upon as constituting the attempt to commit an offence must be an act immediately, not merely remotely, connected with the contemplated offence. This was enunciated in the case of Williams, ex parte The Minister for Justice and A-G. The act must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime. But it is necessary that the accused should have done his best or taken the last steps towards the intended offence. There can be an attempt to commit an offence where the failure to complete the commission of it is due to ineptitude, inefficiency or insufficient means on the part of the accused person. In fact, the fact that a person, having done something which amounts to an attempt, then voluntarily desists from continuing the attempt, does not relief him from criminal responsibility for the attempt which he made before desisting. For the prosecution to prove the offence of preparation to commit a felony, they must establish that the accused had the intention to commit the offence. It must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The prosecution must establish that the appellant made the attempt to put into effect his intention. The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute preparation to commit an offence. Spry J (as he then was) put it more authoritatively when he stated:-“The principles of law involved are very simple but it is their application that is difficult.......................The intention will, in the majority of cases, only be capable of proof by inference and it follows in such cases that an act must be of such a character as to be incompatible with another reasonable explanation. Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence”Criminal law seeks to restore order, decency and social equilibrium in society. It is aimed at curtailing or reducing to the minimum grave incidents of anti-social conduct. Punishment of an offender lies at the root of criminal law. Where an offence is committed, the offender or wrong-doers is punished, however, the criminal law also seeks to punish those who intend to commit offences but could not successfully do so. That is, they merely attempted to commit an offence. The fact remains that they intended to commit an act which they know is unlawful and prohibited, but the completed offence was never accomplished. The offence remains inchoate because the accused could not accomplish his desires, or that the end result of his acts or omission is not what he envisaged. He has all the same, attempted to commit an offence. It is a criminal attempt and therefore an offence. Will an accused person be allowed to go scot-free because he could not finish his plans" No. He would be made to face some form of punishment even though he never completed the offence. In my view, any legal system would be defective if criminal liability only arose when substantive offences have actually been committed.”

16. Mrima, J similarly expressed himself in Brian Kennedy Odhiambo v Republic [2019] eKLR as follows:“Section 388 of the Penal Code defines “attempt” as follows: -388 (1)When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.(2)It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.The above section brings out the two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention. In the case of R v Whybrow(1951) 35 CR APP REP, 141, Lord Goddard C J., had the following to say on mens rea when the court was albeit dealing with the offence of attempted murder: -..... But if the charge is one of attempted murder, the intent becomes the principal ingredients of the crime.Eminent learned authors in criminal law, J C Smith and Brian Hogan in their book Criminal Law, Butterworths, 1998 (6th Edition) at page 288 while discussing the aspect of mens rea in an attempted murder had this to say: -.... Nothing less than an intention to kill will do.And in Cheruiyot v Republic(1976 - 1985) EA 47 Madan, JA, as he then was, while approving the holding inR v Gwempazi s/o Mukhonzo (1943) 10 EACA 101, R v Luseru Wandera (1948) EACA 105 and Mustafa Daga s/o Andu v R (1950) EACA 140, stated as follows on mens rea in an attempted murder charge: -In order to constitute an offence contrary to section 220, it must be shown that the accused had a positive intention unlawfully to cause death.... The essence of the offence is the intention to murder as it is presented by the prosecution.Recently the Court of Appeal had yet another occasion to look at the aspect of the actus reusin attempted offences. In the case of Abdi Ali Bare v Republic(2015) eKLR learned Honourable Justices Githinji, Mwilu and M'Inoti had the following to say as they considered the offence of attempted murder: -..... The more challenging question in a charge of attempted murder is the actus reus of the offence. Although a casual reading of section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence. In the work quoted above by Smith & Hogan, the authors give the following scenario at page 291 to illustrate the distinction:D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position. loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder....In the present appeal, to prove attempted murder on the part of the appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with commission of the murder. Whether there has been an attempt to commit an offence is a question of fact. The act alleged to constitute attempted murder, for example, must be sufficiently proximate to murder to be properly described as attempt to commit murder. In Cross & Joines' Introduction to Criminal Law, Butterworths, 8th Edition (1976), P Asterley Jones and R I E Card state as follows at page 354:..[A]n act is sufficiently proximate when the accused has done the last act which it is necessary for him to do in order to commit the specific offence attempted....The learned authors add that the court must answer the question whether the acts by the accused person were immediately or merely remotely connected with the commission of the specific offence attempted on the basis of common sense. Ultimately therefore, the real question is whether the acts by the accused person amounted to mere preparation to commit murder or whether the accused had done more than mere preparatory acts.”

17. From the foregone, it is easily deducible that when a court is faced with any charge on an attempted nature, care must be taken to ensure that the attempt as opposed to mere acts of preparation, is proved. However strong the evidence is, if it only relates to actions in preparation to commit a certain crime, that evidence cannot justify a conviction on an attempted charge.

18. For clarity purposes, evidence must be led which goes beyond the preparatory stages and right to the doorstep of possible commission of the offence. It ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted. Likewise, the intention to commit the crime must also be proved.

19. In this case, section 220 of the Penal Code provides as hereunder:Any person who -(a)attempts unlawfully to cause the death of another; or(b)with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life,is guilty of a felony and is liable to imprisonment for life.

20. The appellant was however charged under section 220(a) of the said section. There is no doubt at all that the complainant was attacked by the appellant.

21. The next question is whether the said attack was intended to cause death to thecomplainant. The person who inflicted the injuries on the complainant must have intended to cause her serious injuries death. As was held inJane Koitee Jackson v Republic(2014) eKLR and Cheruiyot v Republic (1976-1985) EA 47:-“An essential ingredient of an attempt to commit an offence is a specific intention to commit that offence. If the charge is one of the attempted murder, the principal ingredient and the essence of the crime is the deliberate intent to murder. It must be shown that the accused person had a positive intention to unlawfully cause death and that intention must be manifested by an overt act.”

22. It is therefore clear that the intention to cause death need not necessarily be expressed by the attacker. It can be inferred from the overt act where for example the amount of force applied, the type of the weapon used and whether the offender repeatedly assaulted or attacked the victim that the attacks clearly evinced an intention to cause the victim death. Where the same is accompanied by words to that effect, that intention is strengthened.

23. In this case the weapon used was highly inflammable substance. It was thrown into a locked house while the appellant knew very well that the complainant was inside. Even without the words uttered, it was clear that the attacker did set out to either cause death to the complainant or did not care whether the complainant died or not. In Rex v Gwempazi s/o Mukonzho (1943) 10 EACA 101, it was properly held thatactus reusfor the offense is an act or omission which endangers the life of another. The duty of this court in such circumstances, is, as was held in Ahmed Mohamed Saeed v Reginam (1956) EACA 396, to determine whether, on the facts adduced, it could reasonably infer either that the Appellant intended to kill or that he at least knew that what he was doing was so eminently dangerous that he must in all probability cause death or such bodily injury as was likely to cause death. Therefore, as correctly stated in John Ngare Kwema v Republic (2016) eKLR and Indian Penal Code(Act XLV of 1860).

24. The next question is whether the same was committed by the appellant. It is not in doubt that the only eye witness to the commission of the offence was the complainant. The position in law in this issue is well illustrated in the case of Charles O. Maitanyi vs. Republic [1986] KLR 198 where the court held:“Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lesser the need for testing with greatest care the evidence of a single witness respecting identification…The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made.”

25. That was the position in Ogeto v Republic [2004] KLR 19 where it was noted as follows:-“It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identification evidence of such a witness especially when it is shown that conditions favouring identification were difficult. Further, the court has to bear in mind that it is possible for a witness to be honest but to be mistaken.”

26. The Court of Appeal for East Africa discussed the danger of relying on such evidence without warning in Roria v Republic [1967] EA 583 at page 584. It stated:“A conviction resting entirely on identity invariably causes a degree of uneasiness…That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.”

27. The court also cited its own decision inAbdala bin Wendo & another v Republic(1953), 20 EACA 166 where it held:“Subject to certain well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to the guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

28. In this case the evidence against the appellant was solely based on his recognition that night by the complainant. Though the principles relating to identification are somewhat similar to those relating to recognition, there are however distinctions between the two since as was held in Anjononi & others v The Republic[1980] KLR 59:-“…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

29. In Stephen Karanja v Republic[2011] eKLR, the Court of Appeal held that:“The evidence of the complainant was that the robbery took place at about 8:00 a.m. hence in broad daylight. The appellant was known to the complainant prior to that day. This makes the evidence of identification, although by a single witness, free from any possibility of error as it was, indeed, evidence of recognition.”

30. It was however cautioned in Ali Mlako Mwero v Republic[2011] eKLR by the Court of Appeal that despite there being some measure of reassurance when the case rests on recognition:“…in either case, the evidence ought to be tested with utmost care because it is not unknown for a witness to be honest but mistaken.”

31. That was the position in the well-known case of R v Turnbull (1976) 3 ALL ER 549 where the court held that:“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

32. In order, therefore to avoid possibility of mistaken identity, the Court of Appeal in Peter Musau Mwanzia v Republic[2008] eKLR, expressed itself as follows:“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for sometime, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident.”

33. In this case, it is clear that the complainant and the appellant knew each other very well as husband and wife. Shortly before the substance was thrown into the house the couple had had a disagreement and the neighbours had witnessed the same.

34. In this case, the appellant admitted that there was a disagreement between him and the Complainant. Both the Complainant and PW4 testified that they smelt petroleum fume before the fire started. In my view there was sufficient evidence that the appellant intended to cause harm to the Complainant and having failed in his attempts to do so armed himself with petroleum substance which he set out to accomplish of causing death to the Complainant and the children as he had threatened to do. These threats were uttered in the hearing of PW2 as well.

35. In this case, I have re-evaluated the evidence before this court and whereas I appreciate that the prosecution evidence had some inconsistencies. However, whether or not discrepancies in the evidence of witnesses have the effect of discrediting that evidence would depend upon the nature of the discrepancies, that is to say, whether or not the discrepancies are trifling. See Law of Evidence (10th Ed) Vol 1 at 46.

36. As was stated in John Cancio De SA v V N Amin Civil Appeal No 27 of 1933 [1934] 1 EACA 13:“Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people allege that they made a journey together from Kampala to Nairobi and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never undertaken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory.”

37. This was the position in Willis Ochieng Odero v Republic [2006] eKLR, where the Court of Appeal held:“As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different. But that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.”

38. In the case of Njuki v Rep [2002] 1 KLR 77, the court said the following in respect of discrepancies in the evidence of witnesses:“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. About what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused… however, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused.”

39. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal held that:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

40. In Dickson Elia Nsamba Shapwata & another v The Republic, Cr App No 92 of 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”

41. In Erick Onyango Ondeng’ v Republic[2014] eKLR, the Court of Appeal held that:“The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See Okeno v Republic (1972) EA 32). It is in the above context that this court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.”

42. As was noted in Twehangane Alfred v Uganda, Crim App No 139 of 2001, [2003] UGCA, 6:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

43. In Joseph Maina Mwangi v Republic CA No 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held: -“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”

44. Each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that clearly it will be of little effect and certainly does not necessarily mean that the witness is lying or that his testimony cannot be relied on. The judge must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part of his testimony. (Nyakisia v R E A C ACrim App 35-D-71; -/5/71; Duffus P., Spry v P. & Lutta J. A., in the East African Court of Appeal).

45. In this case, I have myself subjected the evidence adduced to fresh scrutiny and though it is true that there were inconsistencies in the evidence of the said witnesses, I am unable to find that the same were material enough to warrant interference with the decision.

46. In the foregoing premises, I have no reason to interfere with the conviction.

47. As regards the sentence, the charge facing the appellant carried a maximum of life sentence. The trial court however, sentenced him to 10 years. In fact, he should count himself lucky that he was not sentenced on Count II.

48. The last issue concerns the period spent in custody. The proviso to section 333(2) of the Criminal Procedure Code provides as hereunder:(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(2)Subject to the provisions of section 38 of the Penal Code 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.

49. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. While the court may in its discretion decide that the sentence shall run from the date of sentencing or conviction, it is my view that in departing from the above provisions, the court is obliged to give reasons for doing so. However, where no reasons are given as to why that benefit ought not to inure to an accused person, the presumption must be in favour of the accused that the same will be computed inclusive of the period spent in custody.

50. I associate myself with the decision in Ahamad Abolfathi Mohammed &another v Republic [2018] eKLR where the Court of Appeal held that:“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. 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. ”

51. The same court in Bethwel Wilson Kibor v Republic[2009] eKLR expressed itself as follows:“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at September 22, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

52. According to The Judiciary Sentencing Policy Guidelines:The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period ofdetention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender,the court must take into account the period in which the offender was held in custody during the trial.

53. In my view, this court in the exercise of its powers under article 23 of the Constitution may correct a patently unjust decision such as where the failure to do so would amount to subjecting an accused to serve a sentence which is clearly unlawful or legally excessive.

54. From the charge sheet, the appellant was arrested on April 20, 2019. Though he was admitted to bail, there was no evidence that he was in fact released on bail. He was sentenced on February 3, 2020. In sentencing the appellant, there was no mention of the period the appellant was in custody. By omitting to do so the learned trial magistrate failed to take into account statutory provisions guiding the imposition of sentences and that is a legal justification warranting interference with the exercise of the discretion on sentencing.

55. Consequently, while I dismiss the appeal on conviction, I allow the appeal in part as regards the sentence and direct that the appellant’s sentence shall run April 20, 2019.

56. It is so ordered.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6TH DAY OF OCTOBER, 2022. M W MUIGAIJUDGEDelivered the presence of: