The learned state counsel, Mr V. O. Nyakundi, was unable to support the conviction of the appellant in this matter and thus conceded the appeal. That concession, however, does not lessen the need for us to analyse and re-evaluate the evidence on record to reach our own conclusions on the matter, which is a duty cast on this court on first appeal. What are the facts:
The appellant was convicted by the High Court (Ang’awa, J) for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Amazingly, after conviction, he was “sentenced to death and will be detained at the pleasure of the President”. It was alleged in the information filed by the Attorney General that on the 8th day of June, 2008, at Emitiot Village in Bomet District, the appellant murdered LEONARD KIPKURUI LAGAT (the deceased). The prosecution evidence came from ten prosecution witnesses one of whom retracted his statement to the police and was declared hostile.
The incident was investigated by PC Albert Juma of Bomet Police Station. He was instructed by the OCS to go to Ludia’s house where the deceased had died. He collected the body and arranged for a post mortem examination, which was carried out by Dr Cheruiyot but produced in evidence by Dr Isaac Birech Koros (PW 8) of Longisa District Hospital. Dr Cheruiyot found no fractured limbs. There were also no cut wounds externally but swelling and bruising of the left temporal region, forehead and lips. In his opinion, the cause of death was severe head injury resulting from blunt head trauma. He associated the blunt trauma with blows and not falling down. The history of the postmortem was that the deceased had traditional brew with friends and was found dead the following morning. Dr Koros (PW 8) examined the appellant and found him normal physically and mentally. He was told by the appellant that he had been provoked by the deceased.
The nature of the provocation was expounded on by the appellant himself in evidence when he stated that the deceased told him he used to make love to the appellant’s wife. They held each other and struggled but the appellant managed to free himself and ran away, only to be arrested by police on allegation of killing the deceased.
The first challenge in the appeal is, of course, the sentence which is said to be illegal, and we have no hesitation in upholding that challenge. The other frontal challenge was on the findings of fact which according to learned counsel for the appellant, Mr Maragia Ogaro, had no basis. In his submissions, the evidence on record was so contradicting, especially between the evidence of key eye witnesses, PW 3 and PW 4, that no single proper finding could be made. Mr Maragia picked out several inconsistent statements from those witnesses to illustrate his point. The only other evidence, he observed, was from PW 1 and PW 6 who did not witness any fight, and the rest of the evidence is all hearsay. Mr Maragia further submitted that the evidence of a witness declared as hostile was used to support the findings of fact when such evidence was of no probative value. He called for the acquittal of the appellant.
The appeal as stated earlier was conceded by the Attorney General, mainly, on the basis that there were serious contradictions in the evidence of key witnesses called by the prosecution. He also agreed with the appellant’s counsel that it was erroneous to make findings of fact on the basis of the evidence of a hostile witness.
“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
That is why the Evidence Act, in Section 161 and 163 (1) gives the court the discretion to allow cross examination of own witness and impeachment of credit of witnesses. The procedure laid out in those sections ought to be followed in order to ensure that apparent inconsistencies are not explicable by the witness before he is declared hostile. In SHIGUYE VS REPUBLIC (1975) EA 191, the predecessor of this Court reiterated that the effect of declaring a witness hostile was to render his entire evidence untrustworthy. The court stated at page 192, thus:
And so it was with the witness Wesley Kiplagat (PW 3) herein who was declared hostile by the prosecution. His evidence was for exclusion and we do not intend to rely on it in this judgment.
There was nevertheless, the evidence of eye witnesses, Chirchir and Kipkoech, which the appellant himself did nothing to destroy, and which confirmed that he was at the scene of the incident and that he fought with the deceased. Indeed, the evidence of the appellant reinforced that evidence. The medical evidence confirmed the injuries inflicted on the deceased and it did not matter that the deceased succumbed to a mere blow on is mouth and face. It does not matter either, that the deceased was not taken for medical treatment immediately which would have probably saved his life. The definition of “causing death” under Section 213 of the Penal Code covers those eventualities.
On our own evaluation of the evidence, we find that the appellant caused the death of the deceased. It is our view, nevertheless, that the aggressor was the deceased and that there was a fight between the two where no weapons were used. It was also in evidence that the fight was brief and in all the circumstances, there was no intention to cause death or grievous harm. It was unlawful, however, and for that matter the appellant should have been convicted for the offence of manslaughter.
Accordingly, we allow the appeal, quash the conviction for the offence of murder, and set aside the sentence imposed by the High Court. We substitute therefor a conviction for the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The appellant has been in prison detention since his arrest in June 2008. We sentence him to serve the period he has served in prison custody with the result that he shall be released forthwith unless he is otherwise lawfully held.