Mwita v Republic (Criminal Appeal 145 of 2018) [2023] KECA 570 (KLR) (12 May 2023) (Judgment)
Neutral citation:
[2023] KECA 570 (KLR)
Republic of Kenya
Criminal Appeal 145 of 2018
PO Kiage, F Tuiyott & JM Ngugi, JJA
May 12, 2023
Between
Antony Chacha Mwita
Appellant
and
Republic
Respondent
(An appeal from the Judgment of the High Court of Kenya at Migori (Mrima, J.) dated 28th February, 2018 in Criminal Case No. 113 of 2014
Criminal Case 113 of 2014
)
Judgment
1.Antony Chacha Mwita, the appellant, was arrested and arraigned at the High Court at Migori on a charge of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the offence were that the appellant murdered Obadiah Chacha Getang’anyi, the deceased, on November 22, 2014 at Kegonga market in Kuria East, within Migori County.
2.The events leading to the offence were that in November 22, 2014, the deceased and the appellant were at the homestead of Sofia Robi Mwita (PW2) taking a local brew known as “changaa”. Unexpectedly, the deceased’s wife, Catherine Gati (Catherine) arrived at the homestead and picked a quarrel with him concerning her phone. Not to disturb the rest of the customers, PW2 with the help of other revellers, led the deceased and Catherine outside her house. As the two continued quarrelling, the appellant who is her nephew, joined them. The latter was insisting that the deceased gives Catherine back her phone as she had accused him of taking it.
3.PW2 gave two versions of events of what next transpired. The first was that the three left her homestead whilst still arguing, then the appellant and deceased went in a different direction while Catherine went in different direction. PW2 then locked her house and proceeded to attend a circumcision ceremony. Upon being reminded that her testimony did not match her statement, she changed the version of events. She stated that after the appellant insisted that the deceased gives Catherine back her phone, he took out a knife, pointed at him with it and sternly warned the deceased that if it were not for their friendship, he would have killed him.
4.Catherine then left the homestead and PW2 left the two men and proceeded back to the house. Later on, as she was leaving for the ceremony, she saw the deceased lying down in her compound, but did not bother with him. As she was leaving her homestead, she met someone who informed her that he was heading to get a motor cycle so that he could rush the deceased, who had been stabbed, to the hospital.
5.Joseph Kerario Mosama (PW1) witnessed the deceased being ferried to the hospital by other boda boda riders. He proceeded to the hospital where the deceased was treated and discharged. However, by the following day, the deceased’s condition had deteriorated and PW1 took him back to the hospital where he succumbed to his injuries. PW1 testified that prior to his death, the deceased informed him that the appellant is the one who stabbed him. The deceased’s brother, Peter Musama Getanginya (PW4) was informed that the deceased had been stabbed and rushed to hospital. He stated that while in hospital, the deceased disclosed to him also that it is the appellant who stabbed him.
6.The post mortem report produced by Dr Ruwa Sammy Mwatela (PW5) indicated that the deceased suffered a deep piercing stab wound measuring 4 cm just above the posterior iliac spine running from down medially, penetrating the peritoneum. The wound was 10 – 13 cm deep. The colon was also pierced. The cause of death was concluded to be hypovolemic shock due to internal haemorrhage as a result of the attack.
7.At the close of the prosecution’s case, Mrima, J. found a prima facie case established against the appellant, and placed him on his defence.
8.The appellant gave a sworn statement and denied the charges. He stated that on the fateful day he went to PW2’s homestead to take his motor cycle from the deceased. He acknowledged witnessing the deceased and Catherine argue but he did not get involved and proceeded to Kehancha. The following day while running his errands in Mabera, he was arrested by police officers. He was taken to Mabera Police station and subsequently arraigned before court on charges he knew nothing about.
9.Mrima, J. considered the evidence submitted by the prosecution and the sworn testimony of the appellant. He held that even though the prosecution had proved the guilt of the appellant beyond a reasonable doubt, it did not prove the appellant’s motive to stab the deceased. In the absence of malice aforethought, the appellant was therefore not guilty of murder. Consequently, the learned Judge substituted the charge to that of manslaughter contrary to section 202 of the Penal Code. He convicted him accordingly and sentenced the appellant to 20 years imprisonment.
10.Aggrieved, the appellant filed the instant appeal based on 3 grounds, that the learned Judge erred by;a.Relying on the testimony of PW2 which was marred with contradictions and inconsistencies.b.Drawing inferences and reaching conclusions not based on evidence.c.Convicting and sentencing the appellant based on uncorroborated evidence.
11.During the hearing of the appeal learned Counsel Miss Obware appeared for the appellant while the learned Prosecution Counsel Mr Okango appeared for the respondent.
12.Miss Obware contended that the appellant’s conviction was based on circumstantial evidence hinged on PW2’s testimony which consisted of mere suspicion. PW2 not only gave two conflicting accounts of what transpired that day, her account had several missing links that ought to be resolved in favour of the appellant. According to Counsel, Catherine, the wife of the deceased, was the only one in a position to testify as to whether or not the appellant murdered the deceased. Without her testimony, the inconsistencies in PW2’s testimony rendered the appellant’s conviction unsafe.
13.She urged this Court to quash the conviction of the appellant and set aside the sentence or, in the alternative, reduce the sentence to a 10-year term.
14.Mr. Okango in opposing the appeal argued that the prosecution intended to call Catherine as a witness, as evidenced by her statement on record. However, she fled to Tanzania hence they were unable to trace her. Be that as it may, the circumstantial evidence adduced by the prosecution was sufficient to prove that the appellant is the one who stabbed the deceased. He urged us not to disturb the sentence as it was appropriate under the circumstances.
15.We have considered the record and the submissions made by learned Counsel. Our mandate as a first appellate Court was fittingly pronounced by this Court in the often cited case of Okeno v Republic [1972] EA 32 as follows;
16.The twin issues for consideration are whether the appellant’s conviction was safe and whether his sentence ought to be reduced under the prevailing circumstances.
17.It is not in dispute that the appellant’s conviction was based on circumstantial evidence as there was no eye witness account on how the deceased was murdered. It is trite that the guilt of an accused can be proved by circumstantial evidence which enables the court to deduce a particular fact from circumstances as proved by the prosecution. Such evidence can form a strong basis for proving the guilt of an accused person just like direct evidence. See Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR.
18.As we embark on our re-evaluation of the evidence to arrive at our own conclusion, we recall the pronouncement of this Court Joan Chebichii Sawe v Republic [2003] eKLR that;
19.The star witness was PW2, who testified of the argument that ensued between the deceased and Catherine. This is what led to the appellant’s threats to the deceased, while wielding a knife, that he would have killed him were it not for their friendship. PW2 then went back to her house and later as she was heading to a circumcision ceremony, saw the deceased sprawled on the ground. However, she did not bother to find out if anything was wrong with him. As was raised by the appellant’s counsel, we are aware of the conflicting versions given by PW2. The learned judge also noted the same when he observed in his judgment;
20.We defer to the learned judge’s observation as he had the privilege of seeing and analysing the demeanour of PW2. He noted that she was not forthright, appeared worried and for some reason withheld some crucial information from the court. These observations cause us to believe that PW2 was not a credible witness and therefore a conviction based solely on her testimony cannot stand. We concur with the holding of this Court in Joseph Ndungu Kimanyi v Republic [1979] eKLR as follows;
21.However, as each case has its unique set of circumstances, each court must analyse the corroborating evidence if any, to ensure that a conviction is safe. We acknowledge that the learned judge did not expressly denote his reliance on the evidence of PW1 and PW4. However, in our capacity as a first appellate court we do find that that their evidence was critical in the establishment of the guilt of the appellant.
22.During cross-examination, PW1, who took the deceased back to hospital once his condition deteriorated, stated;
23.Similarly, PW4, who visited the deceased in hospital before he passed on, upon examination by the court stated:-
24.The foregoing evidence is admissible under the provision of section 33(a) of the Evidence Act as relating to the cause of death thus:-
25.The testimonies of PW1 and PW4 are the dying declarations of the deceased and they point to the guilt of the appellant. Both witnesses were firm on the identity of the appellant, which removes any chance of mistaken identity. This Court has been clear that under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Statements made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death. See Philip Nzaka Watu v Republic [2016] eKLR.
26.Correspondingly, in Peter Kimathi Kanga v Republic [2015] eKLR, the Court gave guidance on how to handle dying declarations as follows:-
27.Whereas we believe in the credibility of the deceased’s dying declaration as evidenced by PW1 and PW4’s testimony, we have taken into consideration the cautionary rule of practice which, though not a legal requirement, is critical is ensuring the safe conviction of an accused person.
28.On the corroboration, we have already rehashed PW2’s testimony. Even with its credibility questions, at the very least it placed the appellant at the scene of the crime right in the middle of an argument between the deceased and Catherine. Additionally, the appellant’s own admission in his defence placed him at the scene of the crime when he stated;
29.We find that the appellant’s own testimony lends credence to that of PW2, in that on the day of the deceased’s death, the appellant was at the scene of the crime and was present while the deceased and Catherine had a bitter argument about her phone. We accept that PW2 left the deceased and appellant outside her house as she and Catherine left the scene. This, as the learned judge stated, raised the logical conclusion that the appellant was the last person seen with the deceased prior to his death. The learned judge drew the appropriate inference that the appellant made good his threat to kill the accused and therefore was the perpetrator of the stabbing of the deceased. The doctrine of “last seen” has been well-captured in the Nigerian case in Stephen Haruna v The Attorney General of the Federation (2010) 1 iLAW/CA/A/86/C/2009 as follows;
30.In light of the foregoing, and in consideration of the evidence of PW1, PW2, PW4 and the appellant’s own admission in his defence, we find that the inculpatory facts are incompatible with the innocence of the appellant and incapable of any other hypothesis other than that of the appellant’s guilt. There were no other co-existing circumstances capable of destroying the inference of guilt on the appellants’ part. Therefore, from our analysis, the circumstantial evidence adduced by the prosecution satisfied the principles set out in a long line of authorities including Musili Tulo v Republic [2014] eKLR;
31.The appeal on conviction therefore fails.
32.The appellant’s Counsel implored us to reduce the appellant’s sentence to a 10-year term. Sentencing is an integral part of justice and this Court has a duty to dispense justice not only to the deceased but also to the accused person. To this end, we find that a 10-year sentence is a just, proportionate and commensurate sentence to the crime committed by the appellant.
33.In the end, this appeal succeeds on sentence and we set aside the 20-year sentence and substitute it with a 10-year sentence to run from the time the appellant was first sentenced.Order accordingly.
DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF MAY, 2023.P.O. KIAGE........................................JUDGE OF APPEALF. TUIYOTT........................................JUDGE OF APPEALJOEL NGUGI........................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR