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Lugo v Republic (Criminal Appeal 8 of 2022) [2023] KECA 506 (KLR) (12 May 2023) (Judgment)
Neutral citation:
[2023] KECA 506 (KLR)
Republic of Kenya
Criminal Appeal 8 of 2022
P Nyamweya, JW Lessit & GV Odunga, JJA
May 12, 2023
Between
Safari Katana Lugo
Appellant
and
Republic
Respondent
(Being an Appeal arising from the judgment of the High Court of Kenya at Malindi in respect of Criminal Case No.413 of 2020 by the Justice R. Nyakundi delivered on 22nd December, 2021 at Malindi
Criminal Case 20 of 2020
)
Judgment
1.The Appellant, Safari Katana Lugo, was charged before the High Court in Malindi in Criminal Case No 8 of 2022 with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on March 5, 2020, he murdered Kazungu Lugo Fondo alias Chifu Mwange.
2.The Prosecution’s case was that on 5th March, 2020, at about 2.30pm, while a meeting for the funeral arrangements was in progress for one Mariam Kanze Kazungu, the Appellant went to the meeting place and found the deceased, Kazungu Fondo, seated. According to PW1, Raymond Salim Masha, the Appellant kicked the deceased and the deceased fell down. After that, the accused armed himself with a stone and used it to hit the deceased on the forehead. This evidence was confirmed by PW2, Pendo Kazungu, and PW3, Bahati Chare Hare, who in their evidence stated that they saw the Appellant hit the deceased in the face with a stone. According to PW6, Kitsao Ngombe Kariuki, who was at the same meeting, the Appellant went to the place where the meeting was being held and assaulted the deceased on the chest. After, that the Appellant inflicted further injuries before finally hitting the deceased with a block of stone after disengaging himself from the grasp of those who were trying to restrain him.
3.After the incident, the deceased was ferried to the Hospital but died on arrival. PW4, Dr Ruth Nyangi, the pathologist who conducted a post mortem examination of the body of the deceased formed the opinion that the deceased died from head and chest injuries arising from linear skull fracture and left parietal haemorrhage.
4.PW7, Sgt Martin Wanjala, investigated the incident and recorded statements from the witnesses. According to his investigations, it was alleged that the deceased had bewitched Mariam. However, the post mortem examination of that child revealed that she had died of natural causes having been diagnosed with diabetes and not from witchcraft.
5.Upon being placed on his defence, the Appellant in his sworn evidence, testified that on March 5, 2020 he was in his homestead with his wife when his sister in law went to inform him that Mariam had been killed. The said death occurred when he was in Mombasa hence he did not know what killed Miriam. He went to the home where the funeral was and upon his arrival between 2pm and 2.30pm, he found two groups from his mother’s and father’s sides respectively confronting each other. In their midst were some people who were seated on the ground surrounded by a mob, one of whom was the deceased. According to what he heard, the people being surrounded were not following instructions regarding the burial of the said Miriam and a conflict ensued between the two family groups. By that time, the deceased herein was explaining to the mob the issue regarding his daughter who had mental problems. The Appellant revealed that earlier on the deceased had made a report to the police that the Appellant had threatened his life and fearing for his life, the Appellant left the scene. By the time of his leaving the scene, the deceased had not been assaulted. It was however, his evidence that from his observation the conflict was likely to escalate. In his evidence, he did not know who killed the deceased and the prosecution’s case against him was fabricated.
6.In his judgement, the Learned Trial Judge found, based on the post mortem report produced, that the deceased suffered serious injuries to the head, skull and forehead, hence it was proved that the deceased died. The Learned Judge found that from the evidence of the witnesses, the death of the deceased was as a result of an unlawful act. Regarding malice aforethought, the Learned Judge found that the act of the Appellant arming himself with a stone was evidence that his action was premeditated and deliberately meant to endanger the life of the deceased by targeting the vulnerable part of the body of the deceased, the head, resulting into death. The Learned Judge had no difficulty in finding that it was the Appellant who inflicted the fatal injuries based on the evidence of PW1, PW2 and PW6.
7.Regarding the Appellant’s defence, the Learned Judge found that it was merely a rebuttal and was not supported with cogent and specifics of evidence necessary to controvert the prosecution’s case on recognition. He therefore found that notwithstanding the alibi defence by the Appellant, the prosecution fully discharged the burden of proof beyond reasonable doubt. Consequently, he found the Appellant guilty of the offence of murder and convicted him accordingly. He proceeded to sentence the Appellant to 30 years imprisonment.
8.Aggrieved by that decision, the Appellant has preferred this appeal in which he has relied on the following grounds:i.That the learned judge erred in law by failing to consider that in charging the appellant under Sections 203 as read with section 204 of the Penal code, the prosecution case did not lead (sic) evidential burden of proof or evidence to the required standard of the law to identify the appellant as the perpetrator of the crime.ii.That the learned judge erred in law by failing to consider that the documentary evidence by professional post-mortem report produced by the prosecution as per the exhibit did not meet the threshold of the law required,iii.That the learned judge erred in law by failing to consider that the investigation officer did not reflect anything to link the appellant to the alleged offence of murder.
9.At the hearing of this appeal, which was conducted on the Court virtual platform, the Appellant, who was represented by Learned Counsel, Mr Joseph Kihara, appeared from Malindi prison while the Respondent was represented by Mr Mwangi Kamamu who held brief for Mr Nyoro.
10.It was submitted on behalf of the Appellant that, on the authority of Republic v James Njenga Njoroge [2019] eKLR, the Appellant did not harbour any vengeance against the deceased hence the component of malice aforethought which makes up the mens reus was not established. It was further submitted that the Appellant raised an alibi defence which the High Court ought to have carefully analysed, since, according to the decisions of this Court in Republic v Peter Keremoni Itukan [2017] eKLR, Kiarie vs Republic (1984) KLR 73 and Wangombe vs Republic (1976— 8O) 1 KLR 1683, the accused does not have to establish that his alibi is reasonably true. All he has to do is create doubt as to the strength of the case for the prosecution. According to the Appellant, where the prosecution case is thin, an alibi which is not particularly strong may very well raise doubt.
11.It was further submitted that it was an error on the part of the prosecution to rely on the stone as the murder weapon when the same was not subjected to forensic examination and the witnesses who identified the stone at the scene were never called as witnesses. While the Appellant appreciated that a conviction may be arrived at even when the murder weapon was not recovered or produced in the murder trial, it was submitted that the said case was distinguishable from the instant case for the reason that since the stone was produced into evidence as being the murder weapon, there was need by the prosecution to tie all the knots in its evidence by carrying out a forensic review of the blood stained-stone.
12.We were therefore urged to allow the appeal, set aside the conviction and quash the sentence.
13.On behalf of the Respondent, it was submitted, based on the evidence, that the prosecution proved that the appellant was the sole perpetrator in the murder of the deceased. According to the Respondent, since the post mortem was produced without any objection from the defence, it is now too late to raise an issue regarding its admissibility. It was submitted that the investigation officer was in the end able to connect the appellant to the offence and that the appellant’s defence constituted nothing more than mere denial since the purported alibi was unsupported and no notice was ever given to the court or the prosecution.
14.We were therefore urged to uphold both the conviction and the sentence.
Analysis and Determination
15.We have considered the issues raised in this appeal.
16.This being a first appeal, it is our duty to analyse and re-assess the evidence on record and reach our own conclusions. In Okeno vs Republic [1972] EA 32 the Court of Appeal set out the duties of a first appellate court as follows:
17.In this case, the prosecution evidence was that the deceased amongst his fellow villagers had assembled to make arrangements for the burial of a young girl, Mariam Kanze Kazungu, who apparently died from diabetes. While doing so, the Appellant arrived and assaulted the deceased. Though attempts were made to apprehend him, he however, overpowered those who were doing so, picked a stone and hurled it at the deceased’s head. As a result, the deceased, who sustained serious injuries was rushed to the medical facility for treatment but unfortunately died before getting medical assistance. From the post mortem examination report, it was clear that the deceased had sustained serious injuries particularly to the head.
18.On his part, the Appellant testified that on the material day, he attended the said meeting but upon realising that a confrontation was about to occur, he decided to go away from the scene. By the time he was doing so, the deceased had not been assaulted. According to him, the deceased had earlier on made allegations against him to the police.
19.Before is it was argued that there was no evidence that there was malice aforethought on the part of the Appellant in order to sustain a charge of murder. Section 203 of the Penal Code under which the accused is charged provides that: -
20.Section 206 of the Penal Code sets out the circumstances which constitute malice aforethought as follows:
21.This Court stated in the case of Nzuki v Republic [1973] KLR 171 that the offence of murder must be committed with the following intentions: -
22.The element of intention in committing the offence was examined in the English case of Hyam vs DPP [1974] 2 ALL ER 41 where Lord Diplock observed as follows:
23.It is therefore clear that in order to return a verdict of guilt it is not mandatory that the prosecution proves that the accused intended to cause the death of the deceased. Even if the accused did not set out to cause death to the deceased but was aware that his action might well lead to the death of the deceased, he will still be liable if death does result. Therefore, it does not matter whether he intended to cause grievous harm to the deceased, if he was aware that his action might possibly cause such harm to the deceased.
24.In this case, the evidence was that the Appellant assaulted the deceased and was restrained from causing further injury. However, he managed to free himself from the grip of those restraining him, picked a stone and hurled it at the head of the deceased. In our view, by doing so, he must have been aware that such action, aimed at the head of the deceased, an old man, might cause grievous harm to the deceased. It matters not that that was not his intention. That he was restrained but still persisted in causing more harm to the deceased, is a further indication that the harm or injury caused to the deceased was not just accidental or in the heat of the moment but was deliberate. In the premises, we have no reason to disagree with the Learned Judge that malice aforethought was established.
25.It was further submitted before us that the court failed to give due regard to the defence of alibi. According to the Appellant, he left the scene before the deceased was assaulted. In other words, his defence was that at the time of the commission of the offence he was not present. He however admitted that he was present at the scene shortly before the deceased was assaulted. He was seen by PW1, PW2, PW3 and PW6. He did not deny that these witnesses were at the scene. It is true that there were many people present at the scene. However, these witnesses who knew the Appellant very well were categorical that it was the Appellant who assaulted the deceased and no one else. To their credit they did not attempt to concoct a reason why the Appellant would kill the deceased. That should clear any doubt as regards the suggestion that their evidence was fabricated to nail the Appellant. They only stated what they saw and nothing else.
26.These witnesses were related to the Appellant and whereas the Appellant alleged that there was a misunderstanding between him and the deceased, there was no allegation that these witnesses similarly had grudges with the Appellant. Whereas they may not have stated exactly the same thing, as was held by this Court in Philip Nzaka Watu vs Republic[2016] eKLR:
27.In this case, there was unanimity in the evidence of PW1, PW2, PW3 and PW6 that the Appellant threw a stone at the deceased which hit the deceased’s head. Some of the witnesses stated that they were not present when the Appellant first assaulted the deceased but they did see the last assault. In our view it is not necessary that all the witnesses must say the same thing in exactly the same way and manner in order for the Court to believe them. There must be room for disparity arising from human recollection which is not infallible. In this case, the inconsistencies, if any, were very minor, trifling and immaterial.
28.The Learned Trial Judge was faulted for not giving due regard to the defence of alibi. That defence was to the effect that the Appellant left scene shortly before the assault on the deceased. However, the evidence of PW1, PW2, PW3 and PW6 not only placed the Appellant at the scene, but was clear that it was the Appellant who committed the acts that led to the death of the deceased. In our view, in light of that evidence, we are not satisfied that the Appellant’s alibi defence was such that a doubt was created as to the strength of the case for the prosecution which we find was very cogent.
29.As regards the failure to subject the weapon, the stone to forensic examination, as appreciated by Learned Counsel for the Appellant, the offence as charged could have been proved even if the dangerous weapon was not produced as exhibit as indeed happens in several cases where the weapon is not recovered. So long as the court believes, on evidence before it, that such a weapon existed at the time of the offence, the court may still enter and has been entering conviction without the weapon being produced as exhibit. Where the weapon is produced, as happened in this case, it makes the prosecution’s case even stronger though it was not subjected to forensic examination. See Karani vs Republic (2010)1 KLR 73 and Ekai v Republic (1981) KLR 569. In this case apart from the said stone there was evidence that the Appellant was seen physically assaulting the deceased before he hit him with a stone.
30.On the admissibility of the post mortem report, as rightly submitted by the Respondent, that issue was not raised before the trial Judge and as no decision was made as regards its admissibility, the same cannot be raised for the first time on appeal, particularly since the law permits the admissibility of such documents in such circumstances. In an appeal against a decision of the Court, the appellant is expected to point out the manner in which he believes the trial Court erred. It is not a forum where the iniquities of the prosecution are challenged. Therefore, where the prosecution proposes to proceed in a certain manner and the defence does not object, the Court, on appeal would not interfere if what was sought was an exercise of discretion, unless in the exercise of the same, it is shown that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.
31.We have subjected the evidence to fresh scrutiny and we find no reason to fault the Learned Judge’s finding on conviction. As regards the sentence, we were not addressed on the reason why we should interfere and we find no justification for doing so. This Court in Shadrack Kipkoech Kogo vs R Eldoret Criminal Appeal No 253 of 2003 addressed itself on the issue thus:-
32.The circumstances under which this Court, and any appellate court for that matter, interferes with the exercise of the discretion by the trial court in imposing a sentence were restated by this Court in Bernard Kimani Gacheru vs R [2002] eKLR as follows:
33.In this case, the Appellant was liable to be sentenced to death but the Learned Trial Judge imposed 30 years imprisonment. We have no reason to interfere with that sentence since we have not been persuaded that the said sentence was manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.
34.In the result, this appeal fails and is dismissed in its entirety.
35.It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 12TH DAY OF MAY, 2023.P. NYAMWEYA…………………………JUDGE OF APPEALJ. LESIIT…………………………JUDGE OF APPEALG. V. ODUNGA…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR
