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|Case Number:||Criminal Appeal 13 of 1983|
|Parties:||Mugo v Republic|
|Date Delivered:||21 Feb 1984|
|Court:||Court of Appeal at Nairobi|
|Judge(s):||Zakayo Richard Chesoni, James Onyiego Nyarangi, Alan Robin Winston Hancox|
|Citation:||Mugo v Republic  eKLR|
|Case History:||(Appeal from the High Court at Nairobi, O’Kubasu J)|
|History Judges:||Emmanuel Okello O'Kubasu|
Mugo v Republic
Court of Appeal, at Nairobi February 21, 1984
Hancox JA, Chesoni & Nyarangi Ag JJA
Criminal Appeal No 13 of 1983
(Appeal from the High Court at Nairobi, O’Kubasu J)
Assessors - opinion of - how such opinion should be given to court - whether representative opinion proper - failure of trial judge to ask other assessors to confirm opinion given by one assessor - whether such failure a curable irregularity - Criminal Procedure Code sections 322(1), 382.
Sentence - severity of - charge of murder - accused repeatedly stabbing deceased to death - accused provoked by trespass by deceased on his land - deceased a man aged 70 years - charge reduced to manslaughter - accused sentenced to 7 years’ imprisonment - whether sentence excessive.
The appellant was charged with murder and was after trial convicted of manslaughter and sentenced to 7 years’ imprisonment. The evidence given was that the appellant, a man of about 30 years of age, had repeatedly stabbed the deceased, who was aged 70 years, who died of the injuries. The appellant admitted assaulting the deceased in his cautionary statement to the police but said nothing at his trial. The three assessors were of the opinion that the appellant had killed the deceased but had been provoked by the trespass that the deceased had committed over his land. One of the assessors, through whom the other two had said they would convey their opinion, had asked the court to reduce the original charge to a charge of manslaughter. The judge, however, did not ask the other two assessors to confirm this opinion. The appellant appealed against his conviction and sentence.
1. In a trial involving assessors, the law requires a trial judge to record the opinion of each assessor separately.
2. The failure by the trial judge to ask the other two assessors to confirm the representative opinion given by one of them was not fatal and was curable under the Criminal Procedure Code (cap 75) section 382, more so as the irregularity had occasioned the appellant no failure of justice.
3. In the facts and circumstances of the case, the sentence of 7 years’ imprisonment for manslaughter was not so unreasonable or manifestly excessive as to justify interference by the appellate court.
Francis Juma s/o Musungu v R  EA 192
Criminal Procedure Code (cap 75) sections 322(1), 382
|Case Outcome:||Appeal Dismissed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
( Coram:Hancox JA, Chesoni & Nyarangi Ag JJA )
CRIMINAL APPEAL NO. 13 OF 1983
(Appeal from the High Court at Nairobi, O’Kubasu J)
The appellant who was originally charged with the murder on May 21, 1981 of a man called Isaac Kibiru Githiongo, was after trial convicted of manslaughter and sentenced to 7 years’ imprisonment. He has appealed against both the conviction and sentence.
The appellant stabbed the deceased with a knife many times. Joyce Wagaitheri Gitonga (PW 3), and Dinah Wanjiku Maina (PW 4) who both knew the appellant and the deceased, saw him do it from a distance of about 30 paces. Kabiru died at the scene of attack. Joyce and Dinah screamed and the appellant ran to and locked himself in his house. Many people responded, broke into the appellant’s house and arrested him and he showed them a blood-stained knife behind his house. He himself was wearing a blood-stained jacket when re-arrested by Chief Inspector Gideon Muli.
The post-mortem examination of the deceased’s body revealed that the cause of death was cardio-respiratory failure due to hemorrhage into brain due to penetrating injuries. In his cautionary statement to the police, the appellant admitted assaulting the deceased. He said:
“I fought with that man called Kibiru after having warned him five times to stop cutting plant materials from my garden. On that day, the 21st May 1981, at about 4.45 pm, I found Isaac Kibiru in my garden cutting plant materials. I told him to move from my garden and he refused. After refusal, we started quarrelling and after a quarrel, we started fighting. It is Isaac who started beating me with an object I did not know. After he hit me, I also hit him on the head with a small metal that I had in my possession. After hitting him with that small metal, he fell down and after that I stabbed him once on the head with a knife.”
The appellant said nothing at his trial.
The three assessors were of the opinion that the appellant killed the deceased but he was provoked by the deceased trespassing over his land. On the day prior to his death, the deceased had cut grass from Obadiah’s land, and in order to get to Obadiah’s land, the deceased had to pass through the appellant’s land.
Two of the assessors told the learned judge that they would express their opinion through Mr Ndei, the third assessor, with whom they had consulted. Mr Ndei acted as the assessor’s spokesman. He explained the basis for arriving at their decision and then said :
“We ask the court to reduce the charge from murder to manslaughter”,
and the learned judge did so.
Section 322(1) of the Criminal Procedure Code provides that the judge :
“... shall then require each of the assessors to state his opinion orally, and shall record that opinion.”
In our opinion, the law requires the trial judge to record the opinion of each assessor separately. In Francis Juma s/o Musungu v R  EA 192, the assessors retired and when they returned after conferring together, the first assessor told the court:
“We all agree that the accused is guilty”;
the other assessors were not asked to confirm this statement and they did not speak individually. The former Court of Appeal for Eastern Africa said, at p193 :
“The wording of s318 (the wording is the same as that of the present section 322(2) of the Criminal Procedure Code), ……………clearly contemplates and, we think, requires that each assessor shall separately state his own opinion.”
In this case, the learned judge did not ask the other two assessors to confirm Ndei’s opinion. Nevertheless, our view is as that of the court in Francis Juma Musungu’s Case that this irregularity is not fatal and is curable under section 382 of the Criminal Procedure Code; more so, in a case like the present one, since it has occasioned the appellant no injustice. We are satisfied that the appellant was properly convicted.
The appellant, a young man aged about 30 years, brutally and fatally assaulted an old man of 70 years. The appellant alleged the deceased beat him first but the medical examination showed that the appellant had no injuries. In the circumstances and on the facts of this case, we do not find the sentence of 7 years’ imprisonment unreasonable or manifestly excessive as to justify interference.
For the reasons stated the appeal is dismissed.
Dated and Delivered at Nairobi this 21st day of February 1984.
JUDGE OF APPEAL
AG. JUDGE OF APPEAL
AG. JUDGE OF APPEAL
I certify that this is a true copy
of the original