Patrick Macharia Alias Machaa v Republic [2014] KEHC 947 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 41 OF 2012

PATRICK MACHARIA ALIAS MACHAA…....……....………….. APPELLANT

VERSUS

REPUBLIC……………………………….....…...………………..RESPONDENT

(Appeal from the original conviction and sentence in Criminal Case Number 403 of 2011 in the Senior Resident Magistrate’s court at Baricho     HON. J.N. Mwaniki  (SRM)

JUDGMENT

PATRICK MACHARIA MAINA the appellant  herein was charged with the offence of threatening  to kill contrary to Section 223 (1) of the Penal Code before the Senior Resident Magistrate’s Court at Baricho . The  particulars were that  the appellant  herein on 20th June 2011  at Kagio  Township in Kirinyaga South District without lawful excuse caused  one Pauline Wanjiru Kirika  to receive  a threat to kill her.  The appellant after trial was found guilty  and sentenced  to serve 4 years  imprisonment  by the trial court.  The appellant felt aggrieved  and filed this appeal listing seven grounds  in his petition of appeal.   They are as follows:

That  he pleaded  not guilty.

That  the Learned magistrate  erred in law and fact by failing to consider  that the defendant notified  the court that there was a pending investigation of the same  threatening  message by someone  else who had used mobile phone to send some  threatening message.

That the Learned Magistrate erred  by failing to consider  the fact that  the complainant  and the appellant had a relationship  that had turned  sour  and even  ended up in a children’s court.

That the Learned Magistrate  erred in law and in fact by relying a statement  written at the police that was later retracted by the maker.

That the Learned Magistrate  erred in law by relying on evidence of a witness who was not called to testify.

That the Learned Magistrate erred  in law and in fact by relying on  uncorroborated  evidence.

That the Learned magistrate erred  by law and  in facts  by failing to consider  my defence and mitigation.

In his written submissions  filed in court the appellant has stated that the complainant was his ex-wife  and  that they had differences that ended  up in children’s court . The appellant has submitted  that the complainant now has another  husband who was PW2 in the trial court   and in the appellant’s view  the current husband should be taking care of her and the children. The appellant  contends that the complainant framed him up to settle  scores  with him  and this fact  was not taken into account by the trial court.

The appellant has also taken issue with the reliance of evidence  which were  later refracted .  He contends that the evidence of PW3 were made under duress at police station  and that is why he retracted them at the trial court  when called to testify.  The appellant further  states that  the prosecution failed to produce a  witness who is said to have been with PW3 during the material time the offending posters were being pinned on the gate  of the complainant.  The appellants finally says that the trial  court did not consider the defence put forward particularly  the fact that the receipt book  which formed part of the sample  taken for analysis by PW6 (document  examiner), was authored by appellant’s employee(DW2).

The state through  the office  of Director of Public Prosecution  represented by Mr Omayo did not oppose the appeal but this being an appellate  court  it shall nevertheless consider  the appeal on the merits. This being the first  appeal, this court  is obligated to re-evaluate  the evidence adduced at the trial court and determine whether  or not the evidence adduced sufficient  to support the conviction.

I have looked at the proceedings before the trial court and its clear that  the main issued at the trial was  the determination of the author of the offensive and threatening posters  that were plastered at the gate leading to the  house of complainant.   The complainant (PW1) testified at the trial court  and told the court that the posters  were placed  in her gate on two occasions (4th March 2011 and 20th June 2011) and it was  in the second occasion that she was able to apprehend a person(PW3)  with the help  of her husband(PW2).  The complainant told the trial court  that PW3 led them  to the appellant who had reportedly  tasked him  and another person (PW4) to put the offending posters on the gate of the complainant.

I have looked at the posters that were recovered at the scene (five in number) produced  as P exhibit (A1-5) and indeed they are offensive  and threatening .  The contents are as follows:

“PAULINE WANJIRU KIRIKA MALAYA HII.  UNAHARIBU NYUMBA YANGU. WACHANA NA BWANA YANGU.  SAMUEL MWAI NDAMA, NITAKUUA KABLA YA MWAKA HUU.   NI MIMI BIBI WAKE.  NATAABIKA NA WATOTO WAKE ARUNDI NYUMBANI”.

“PAULINE WANJIRU KIRIKA WACHAANA NA SAMUEL NDAMA NUTAKUUA……………….MALAYA HII. NI BIBI YAKE NAKULA TABU NA WATOTO WAKE SAMUEL NDAMA NI MGONJWA NA UKIMWI”.

“PAULINE  WANJIRU KIRIKA WEWE  NITAKUUA………WACHANA NA BWANA YANGU  SAMUEL MWAI NDAMA NITAKUUA KWA VILE NAKULA TABU NA WATOTO WAKE.  NI MIMI BIBI YAKE”.

The other posters produced  as exhibits contained similar  messages  as shown above.  The trial court correctly evaluated and concluded that the posters were recovered on the material day at the scene of crime (gate of the complainant) and that there  was no doubt that the messages  were directed at the complainant in the trial court.  That is why she took action of reporting  the incident to the police.

The appellant  has contended that the trial court erred  by relying on the  evidence of a single witness .  The appellant did not point out  who that single witness  was in his opinion but from the proceedings it is obvious that the position is incorrect .  The court evaluated  the evidence of  PW1 and PW2  who apprehended  PW3 putting up  the posters and frog marched  him to police station where they all recorded statements  and the police  commenced investigations  that led to the arrest and prosecution of  the appellant.  The investigating officer (PW7)  gave a detailed account of the actions  he took after receiving the report.  He interrogated suspects PW3 and PW4  and took their statements .  He also involved  the handwriting expert (PW6) who also testified  and gave evidence in support of prosecution case. The trial  court therefore took evidence of seven witnesses called by the prosecution and from the judgment  the Learned Magistrate  weighed  evidence adduced by all the seven witnesses  in totality.  I do find that conviction  was not founded or based on the evidence of a single witness as pointed out  by the appellant.

The other ground of appeal that the appellant gave weight  was that  the trial court relied  on evidence of a refractory  witnesses the said witnesses being PW3 and PW4 .  The record shows that PW3 was not only declared a hostile witness but had to be locked in  for 14 days to agree to testify and even after agreeing  to testify he gave evidence that was not tandem with the statement  he had earlier recorded at the police station .  He told  the court after being first locked  in for eight days  that

“ I still maintain I will not give evidence I do not believe in”.  There is  no doubt therefore that PW3 stubbornly maintained his position of being refractory witness and the trial court had no choice  but to declare  him a hostile witness.  The weight  of evidence  of such witnesses  in law are usually of little value  and a court should not rely on them either  for the prosecution or for an accused person because such witnesses and their evidence are unreliable . In the case of DANIEL ODHIAMBO KOYO –VS- REPUBLIC (2011) e KLR , the court  of appeal sitting  in Kisumu stated that the probative value of such evidence is  neglible and may only be relied  upon in clear cases   to support  the prosecution or the defence case.  The court in quoting the case of MAGHENDA –VS- REPUBLIC (1986) KLR 255  observed

“ the evidence of a hostile witness  must be evaluated  in particular  if he intends to favour the accused  though it may not necessarily be acted  upon by the court”.  The court went on to state that  a court would normally take a perverse view of the credibility of the hostile  or refractory witness in view of shift in position regarding his statement  to the police regarding  the case against  the accused or  is reluctance  to testify.  The trial court in this case however seems to  have placed  great value on  the statement  made by PW3  in the trial case.  This is deduced  from the judgment  when he made the following observations;

“ first  statements made to persons in the authority are of paramount importance  as they provide a test by which  the truth  is subsequently told……………”

It is my view that the evidence of a refractory witness  must be treated  with caution and only be used where there is sufficient  corroboration.  A court  cannot place weight on evidence that is neglible  in law.   In  the case of  ABELMONARI NYANAMBA & 4 OTHERS –VS- REPUBLIC (1996) e KLR the court  made the following observation in regard to evidence of a hostile witness;

“ the evidence of a hostile witness is indeed  evidence though generally of little value obviously, no court found a conviction solely on the evidence of a hostile witness because his unreliability  must itself  introduce  an element of reasonable doubt “(emphasis added)

Furthermore in the case of BATALA –VS- UGANDA (1974) E.A. 402  the court stated in relation to evidence of a hostile witness;

“ The giving of leave  to treat a witness  as hostile  is equivalent  to a finding  that the witness  is unreliable it enables the party  calling the witness to cross-examine  him and destroy his evidence.  If a witness is unreliable, none of  his evidence can be relied on, whether given  before or after he was treated as hostile and it can  be given little, if any, weight”.

The trial court  in regard  to evidence of PW3 and PW4 appear to have misdirected  himself  on a point of law when he viewed  the statements made  by them as “ very comprehensive and very relevant”  in his judgment  and appears to have placed  undue weight on the same against  the position in law as expounded in the above cited authorities.

The issue for determination  therefore is if  the correct weight was  placed on the evidence  of PW3 and PW4  both of who were treated as refractory  witnesses ( though the former was not treated  as hostile  by the trial court) could the court have still find  a conviction?  I have  evaluated  the evidence tendered before the trial court and I find  that the evidence  of the expert witness (PW6)  was key  to the prosecution case.  PW6 told the court that he  was an expert in handwriting  having trained  in National Rehab University in Sudan.  His evidence was that having received  two sets of exhibits  that is to say;

Exhibits marked A1-A5 –exhibits found at the crime scene and the suspect

Exhibits B1-B5-samples  of appellant’s handwriting  he subjected  the documents to examination  to see if they were made by the same   person.  The tests carried out involved

“Image  enhancement and magnification  procedures on stereo microscope, video  spectro and compass  for the  projecting using infra red filters  for better visibility  and inspection  of minute individual characteristics for absolute identification”.On  the basis of this test, he formed an opinion that the two samples were made by the same author.  When cross  examined  by counsel for the appellant, the expert witness  added that the examinations carried out  included  per lifts, pen pressure  and that is why he opined  that his opinion was conclusive.

The trial court has not  been faulted by the appellant  in the manner  in which he  treated the evidence of the expert.   The trial court  in my view correctly  applied  the law as indicated in his  judgment.  The trial court in  the judgment referred  to Section 48  of the Evidence Act and relied on the authority  of NGUKU –VS- REPUBLIC (2004) 2 KLR 5 in relying on the expertise  of the PW6.   Apart from the evidence  of PW6 the trial court also on its own perused the exhibits produced in court by PW5 as P exhibit 3 a(1)-a5  and compared them with sample taken from appellant by PW5 and produced  as P. exhibit 3 b1-b5 and found them in his opinion to be much alike.  Again on this score  the trial magistrate was right since the evidence  of expert  is an opinion and  not binding   to trial court.   The court  in such instances  has to make its own independent evaluation  and finding .  This view is in line  with s similar holding  as seen in the case of SAMSON TELA AKUTE –VS- REPUBLIC (2006).   The court made  the following observation which I consider relevant here

“ The court has to examine  the documents itself  and come  up to the conclusion to the same conclusion  with such assistance  as can be furnished  by the experts  in the field………….”.

This court has also had the occasion of observing very closely the said exhibits  marked A1-A5and produced  at the trial as P exhibit 3a  and I have compared them with exhibits marked B1-B5 and produced at the trial as P. exhibit 3b .  The two sets of exhibits are so similar  that it would have been quite a task to distinguish  them had the same  pen been used by PW5 when taking the sample handwriting  from the appellant.  I therefore find that the Learned Magistrate  was right in drawing the conclusion which he did in his judgment  upon evaluating the evidence adduced by the prosecution.  The trial court’s inference on the guilt of the appellant in regard to authoring  the offensive  posters was sound in my view  given the above reasons and in particular  the case quoted by the trial magistrate in regard to the approach he gave to the evidence of the handwriting  expert (NGUKU –VS- REPUBLIC (2004) 2KLR.

The appellant  has stated  that his defence  was not taken into account.  I have considered the evidence  adduced by the appellant.  He told the trial court  that they had  a history of alterations with the complainant  and that  could have made  the complainant  to frame up the charges against him to settle scores .  I however  find the defence to be a double  edged  sword since  it may have provided the complainant an avenue to avenge for the past differences  they may have had  with the complainant , the same could also explain the motive behind the appellant authoring the offensive posters  to revenge as well owing to a love gone sour.  I find the defence put forward  by the appellant  was in a way trying to paint  the PW2’s  other wife  as the culprit  a bit telling given the message  contained in the poster  that appear  to implicate, at least on the face value  the wife  if PW2, one RUTH MUKAMI.  It is obvious that the appellant in an attempt to conceal his identity attempted  to deflect the attention to an easy and  “obvious” target.  This court notes the great lengths  that the appellant went in trying to sell this idea which was diversionary in my opinion that  ended up betraying  him.  His case for me is a classic example of the infamous proverbial  thief who upon being cornered  shouts “thief” thief” pointing to the wrong target  to divert attention.  The witness  DW2 called by the appellant   was his employee  and the trial court never gave  any weight to his evidence in support of appellant’s case for obvious  reasons.  He was an employee  of the appellant and contrasting  his evidence with that of  PW6 the expert witness an independent witness by all means and balancing them on the scales of justice, the trial was  correct to agree with the version given by the expert  witness.  I do find that the evidence  of the expert  witness easily outweighed  the evidence tendered by the defence and the trial court properly directed itself in that regard.

The appellant submitted that  the trial court  never considered  the past relationship and the history they had with the complainant  prior to the incident that led to his prosecution.    I have considered  the same and does appear that  there was  a love  triangle gone bad  at some stage leading to threatening messages sent via sms  to the phone of the complainant which was reported to  at the police.  There is also no doubt  that there  exist a children’s cause  between the appellant and the complainant in the trial court  which perhaps  explains  the action or the motive behind  the appellant’s action. Though  I find the same ill-advised and unwarranted, I consider  it a relevant  mitigating factor given the  circumstances and this which should have been considered  by the trial court upon conviction  of the appellant.

In conclusion and for the reasons  advanced  above I find that the conviction  of the appellant was well founded on the basis  of the evidence adduced  by the prosecution at the trial court.  I find  no basis to interfered with the finding  of conviction by the trial.  It is upheld. On the sentence as I have observed, taking into consideration  the mitigating circumstances  under with the appellant committed the offence I  hereby do exercise of powers under Section 354 3(b)  Criminal Procedure Code, and  alter the  sentence meted out  against the appellant from custodial sentence of 4 years imprisonment  to a fine of kshs 20,000/- or 1 year imprisonment in default  and in addition  order the appellant to keep peace for a period  of 2 years.  The upshot of this is that the appellant’s conviction is upheld but the sentence is set aside  in its place  a fine  of kshs 20,000/- is imposed or 1 year imprisonment  in default  and in addition the appellant is ordered to keep  peace for 2 years.

R.K. LIMO

JUDGE

DATED, SIGNED  AND DELIVERED AT KERUGOYA THIS 9TH DAY OF DECEMBER, 2014  in the presence of

The appellant

Mr Omayo for state

Mbogo Court Clerk