Analysis And Determination
12.This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial court in light of the submissions made before court, before reaching its own independent determination whether or not to uphold this appeal. In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified and therefore give due regard in that respect. (See Okono vs. Republic  EA 32).
13.The Prosecution called four (4) witnesses in a bid to prove the charges drawn against the Appellant. The evidence was that the complainant herein Calyphin Okenyoru Nyabuto (PW1), left Etago Trading Centre on 1st May 2021 at 7:00 p.m and as he walked, he met the Appellant’s son in company of another boy he did not know. Theft had occurred.
14.As he walked ahead, he met the Appellant carrying a panga. He knew the Appellant’s name as Samuel and also because he was their neighbour. He was able to identify his face as there were electricity lights. The Appellant suddenly confronted him accusing him of assaulting the Appellant’s children. The complainant recognized the Appellant by his voice.
15.Using the panga , the Appellant cut the complainant on the head, face and leg as he lay on the ground bleeding and pleading with the Appellant to spare his life. The Appellant then left. The complainant then crawled home and reported to his brother who in turn called their father James Okenyuru Onura (PW2) who rushed the Complainant to Nyangena Hospital where he was admitted for one week.
16.On cross -examination, he told the court that he knew one Kwamboka Oriango but she was not with the two men he had met on the road. He denied grabbing Kwamboka by the hand. He denied being taken to Kisii Level 6 Hospital. He found himself already admitted at Nyangena Hospital where he stayed for Seven 7 days.
17.James Okenyuru Onura (PW2) saw that the complainant was bleeding from the head and face. The complainant reported that it was Samwel the fundi who had attacked him. The complainant then became unconscious. PW2 rushed him to Nyangena Hospital where he admitted for eight (8) days.
18.PW3 Wilfred Nyambera , a clinical officer based at Suguta health centre prepared the P3 Form and notes was disqualified by the court for he was not the maker of the P3 Form.
19.PW4 Maureen Kwamboka Ombaba , a clinical officer at Etago saw the complainant on 2nd March, 2021 and again on 13th May 2021 when she filled the P3 Form and assessed the degree of injury as maim. . The complainant had treatment notes from at Nyangena Hospital. He was treated at Kisii Referral Hospital.
20.In cross examination, she did not know who treated the complainant at Nyangena and did not see him on 2nd May 2021 as she was not on duty. She explained that the patient came to Nyangena Hospital on referral and she just saw the notes not the complainant.
21.In re-examination, she told the court that the complaianat was only referred to them from Nyangena for removal of stitches . He was also referred to them for the filling of the P3 Form and saw him before filling the same. She clarified that they do not treat patient s at Etago.
22.PW5 No. 59016 PC Jackson Ouma of Etago Police Station investigated this case. He testified that on 2nd May 2021 at about 1930 hours , the Appellant who was armed with a panga cut the complainant severally. The complainant screamed for help and people came and took him to Etago subcounty hospital but he was referred to Nyamarambe and Nyangena Hospital .
23.Then on 3rd May 2021, the OCS received a call from a priest who informed him that the Appellat was being lynched by the mob. The OCS rushed and rescued the Appellant. The complainant remained in hospital until 13th May 2021 and later came for the P3 Form and recorded a statement .
24.On being cross examined by the defence counsel, he told the court that he rescued the accused from the mob at the scene. He did not find a lady by the name Kwamboka Oriango being fought by two men. He denied charging the Appellant to please the complainant. He did not establish if the Appellant was one of the people who had come to rescue the complainant
25.In his sworn statement in defence, the Appellant told the court that that he was a catechistic at St. Thomas Etago and was a tailor and did business at Nyamaramba. That while in company of his family at his shop at about 8.00 pm, he saw two people fighting outside the shop. He came out with a spotlight and separated them. One of them escaped and the other had fallen. He identified the man who had fallen. It was the complainant. He asked him what happened but he did not respond. He stood up and left only to later accuse him in this case. He denied assaulting the Complainant who he accused of lying to court.
26.In cross examination by the Prosecutor, the Appellant told the court that the complaisant was conscious and was able to see his assailant but the assailant ran away.
27.From that evidence, the main issues for determination are:-
28.The issue of defective charge was dealt with at length by the Court of Appeal in the case of Peter Ngure Mwangi v Republic  eKLR, where the Court stated;
29.The charge sheet presented before the trial court indicates that the Appellant was charged with “Grievous harm contrary to section 234 of the Penal Code. That section provides:
30.Further, the charge contains his name, the name of the complainant, the date and place the offence was committed and the section under which the Appellant was charged. Though, the record does not indicate whether the Appellat was represented during plea, he pleaded not guilty. The same record shows that the Appellant was represented by a counsel right from the start of the hearing of the case.
31.What is apparent from the lower court record is that the issue of defect was only raised by defence counsel during submissions at the close of the defence case thus:-
32.That is definitely a contradiction on dates. The trial court captured that issue in the judgment and held:-
33.Not all manner of discrepancies can affect a case. For a contradiction to be fatal, it must relate to the totality of evidence and must be substantial. From the evidence presented before the trial court , the Appellant clearly understood the charge he was facing before court and was able to prepare his defence. A contradiction in regard to this date is not substantial and cannot be used to invalidate the totality of the evidence herein. This Court finds no miscarriage of justice occasioned to the Appellant on the issue of dates. There is no error in the trail court’s finding .
34.On the issue as to Complainant sustained the alleged injuries, the P3 Form produced as P Exh. 2 shows that the Complainant was examined and found to have multiple cut wounds on the head and face. He also had a cut would on the right leg. The probable type of weapon used was a sharp object. The evidence was led that the attacker used a panga to cut the complainant.
35.That evidence is consistent. The degree of injury was classified as maim. The ground of appeal that there was no medical report produced does not hold water. Further, the fact that the panga was not produced as an exhibit has no effect in this case as none was said to have been recovered either.
36.On the issue of identity, there is no doubt that the incident occurred at night. The only eye witness to the attack was the Complainant in this case. Regarding such identification , the Court of Appeal in Cleophas Otieno Wamunga v RepubliceKLR had this to say:-
37.The Complainant testified that there was electricity light at the scene. He was able to see Appellant. He identified him because he was a neighbour and he also knew his name as Samwel. The Appellant spoke to him and he recognised the voice too as that of the Appellant herein. In his defence, the Appellant does not deny being at the scene on the material . His defence was that he had gone to separate two men who were fighting. That the attacker escaped leaving the other lying on the ground. He named the man lying on the ground as the Complainant.
38.The complainant reported that it was the Appellant who had attacked him. The Appellant was known as a fundi, a fact not denied by the Appellant. The evidence was that the Appellant was rescued from the mob who wanted to lynch him. The defence did not dislodge this evidence at all. This Court is satisfied that even if the attack occurred at night, the circumstances were conducive for proper identification and there was no possibility of error. There was no mistaken identity in this case.
39.In conclusion, this Court is satisfied that the Prosecution proved its case as required by law. The conviction was therefore proper. The sentence for the offence under which the Appellant was charged is imprisonment for life. The sentence of a fine of Kshs. 100,000/= in default three (3) years imprisonment passed by the trial court is reasonable. The Appeal is therefore dismissed. The conviction upheld and sentence therein affirmed.