Obadia Barasa v Republic [2016] KEHC 2232 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL CASE NO. 29 OF 2016

(An appeal from judgment  in  original Kitale CMCR Case NO.  1668/2013

delivered on  21/03/2016 by C.C. Kipkorir Resident Magistrate)

OBADIA BARASA....................................................APPELLANT

VERSUS

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

J U D G M E N T

The appellant was charged with the offence of Grevious Harm contrary to Section 234 of the Penal Code.  The particulars  were that on the 15th  day of July 2013 at Chepkoilel farm in Trans Nzoia County  unlawfully did grevious harm to Antony Khamala Wanjala.  He was convicted and sentenced to 1 ½ years imprisonment hence  this appeal.

Before delving into the petition herein its worthwide summarising the facts as presented before the trial court.  The complainant testified that on 15th July 2013 at 5 pm he was walking home when he saw a man ahead of him  walking in a zigzag manner with his hands inside his pocket. As he approached he threw a stone at him which hit his mouth causing great pain and to in  the process

loosing one tooth.

The assailant then ran away.

He went to Endebess and made report at the police station. He was referred to Endebess District hospital who later referred him to Kitale District hospital. He said that the appellant was arrested at the police station.

On cross examination he denied that he was  drinking alcohol on the material day together with others and that his tooth was intact.  He said that one Biketi took him to hospital when he raised alarm.

PW2 Dr Charles Macharia produced the P3 form and notes on  behalf of Dr Gakundi.  It showed that there was one  missing canine tooth and  wound  on his upper lip which was swollen.

PW3 P.C. Simon Kirui said that he was at the station when at around 8. 30 pm the complainant  reported that he had been assaulted by the complainant.

He had fresh wound on the side of his mouth with a missing tooth on cross examination he  confirmed that the appellant  was arrested when he went to report about being beaten by the complaint.

When put on his defence the appellant gave sworn evidence . He said that they were drinking alcohol at the home of one Mama  Rael.

In the process a fight ensued over lack of payment of the alcohol they were drinking.  The appellant stated that he was assaulted by the complainant and the  following day when he went to report at the police station  he was arrested.  He maintained that the complainant had always had a missing tooth and that he was always a violent man.

Analysis and Determination

The appellant did file the Petition of Appeal which contained several grounds.  The appellant  counsel argued the same separately and jointly.

The learned  state counsel did oppose the same arguing that the decision arrived by the trial court ought not to be disturbed.

In this appeal the court is enjoined to arrive at an independent finding with full knowledge that it did not have the opportunity of seeing the witness – See Ekeno Vs Republic (19972) E.A. 32)

The first issue herein is whether the complainant sustained the injuries on the road or as the appellant puts it at the drinking den.

The complainant stated that he was walking alone when out of nowhere a passerby simply threw a stone at him.  He raised alarm and  that is when one Biketi came and  rushed him to the hospital.  He said that he only knew the assailant by face but did not know his name.  This materially contradicted what PW3 told the court. He said that the complainant reported that he had been hit  with a stone by one Obadiah Barasa.

When did he get to know the name of the assailant?

Further why did the said Biketi not called to corroborate what he saw? If its him who rescued  the complainant I would agree with the appellant counsel that in the absence of any other witness it was necessary for Biketi to corroborate what the complainant stated.

What I find intriging is how the appellant was arrested. The complainant seemed to  have gone ahead of the appellant. He said that the appellant was arrested at the police station for the reasons he could not explain.

I find it very interesting for the appellant to assault the complainant then goes again to report at the police station.

I find that the court  ought to have put weight on the defence evidence.  Though he did not call any witness I find that its most probable that the appellant as well as the other fellows mentioned by the appellant were in a drinking  joint when there  ensued a fight.  I say so because there is nothing to suggest that the tooth got removed on that particular occasion.

Further there was no X-ray report to buttress what PW2 gave.  It would have been relevant to show how old the injury on the gum was.

All in all the evidence as presented by the prosecution was to say the least shaky to warrant the conviction.  I do not find the  evidence of the complainant  foolproof.

Consequently I shall allow the appeal set the appellant free unless lawfully held.

Delivered this  6th day of October 2016.

________________

H.K. CHEMITEI

JUDGE

In the presence of

Abele for prosecution

Appellant present

Kirong – Court Assistant.