[1990] KECA 34 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL AT MOMBASA

CRIMINAL APPEAL NO. 30 OF 1988

ABDI………………….APPELLANT

V

REPUBLIC……………RESPONDENT

JUDGMENT

Mohamed Halane Abdi (hereinafter called “the appellant”) was convicted of the murder of Dr Vasantral Nathalal Mehta ( the deceased) and sentenced to death. It was alleged that on 20th August, 1985, between 10. 00 and 11. 00 a.m he of malice aforethought caused the death of the deceased in his medical clinic on Kenyatta Avenue Mombasa by shooting him.

As the actual shooting occurred in a room in which there was no one else except the appellant and the deceased, there is very little direct evidence as to what actually happened. The witness who was closest, was the deceased’s attendant, one Karisa Yaa, but he too was sitting in the next room from where he could not see either the participants or observe the events. His evidence was that on the fateful day, the appellant arrived at the clinic at about 9. 00 a.m. but as the deceased was then busy with his consultations, he left and returned about an hour later. Upon his return he was admitted into the deceased’s Consulting room apparently without being subjected to the normal procedure applicable to patients visiting a medical practitioner. There is no evidence that a patient card in respect of this appellant was available. This is important because from the appellant’s own version of the events, his visit to the clinic was not for medical reasons for he was not the deceased’s patient. According to him, he was calling on the deceased to finalise a business matter of a somewhat sensitive nature involving illegal sale of firearms. According to Karisa Yaa, no sooner had the appellant entered the deceased’s room than he heard the deceased screaming and when he peeped into the room, he saw the appellant aiming a gun at the deceased and then fired one or two shots at the deceased. He was obviously frightened and all he did was to decamp and raise an alarm. After shooting the deceased, the appellant collected his weapons and ran away from the scene. He was eventually captured after shooting his way around the town in a bid to escape and placed into police custody.

Dr Mandalia, the Provincial Pathologist, who conducted the postmortem examination on the deceased’s body determined the cause of death as massive pulmonary and pericardial haemarrhage due to shot wounds. He said that at least four shots were fired at the deceased and at least one or two hit him on the chest probably causing his death. He found six gun shot wounds. He estimated that at least 5 bullets were fired at the deceased.

The appellant made a sworn statement in his defence and his account as to what happened was as follows. He said he had called on the deceased on a business matter. He had known the deceased since 1981 and had bought drugs from him which he sold in Somalia. In 1984, the appellant said, the deceased expressed an interest in guns which the appellant admitted were available in Somalia and agreed to acquire some for sale to the deceased. When he returned to Mombasa in August, 1985, he brought with him 4 pistols. The deceased inspected the guns on 18th August, 1985 and agreed to buy 3 out of the four at Kshs.4,000 each. The 3 pistols were to be handed over to the deceased b the appellant on the 20th August, 1985 upon payment of the agreed consideration. However, when he called on the deceased, the latter took the pistols but asked him to return the following day for payment. The appellant refused and an argument ensued in the course of which the deceased threatened to teach the appellant a lesson and made as if to call the police on the telephone. The appellant tried to stop the deceased making the call as he obviously did not wish to get involved with the police. The appellant’s intervention apparently annoyed the deceased who got up, punched the appellant which sent him staggering towards the door. The deceased then picked up a pistol and shot the appellant on the left shoulder. The bullet went through the clavicle and exited on the back of the shoulder. Overcome with fear and apprehensive for his life, the appellant took the fourth pistol and shot the deceased fatally wounding him.

That the appellant sustained personal injuries was not challenged by the prosecution but their case, which was accepted by the trial judge hook, line and sinker, was that the appellant sustained these injuries when he was stoned by a member of the public who took part in chasing the appellant before he was subdued and arrested. That may well be so, but is reasonably possible on the basis of the appellant’s account of events, that those injuries could have been caused by a shot fired by the deceased as stated by the appellant. Once that probability exists, the benefit of it must go to the appellant.

Once we explained to Mr Metho, learned Principal State Counsel, who appeared for the Republic, that had the learned judge taken into account that fact that there had been a fight between the appellant and the deceased inside the consulting room, he would have found that there was an element of provocation, Mr Metho, quite properly in our view, conceded that in the circumstances, he could not seek to uphold the appellant’s conviction for murder. He at once agreed that on the evidence the appellant ought to have been convicted of manslaughter only. Had the learned judge accepted the appellant’s account which was not contradicted, he would have immediately appreciated that provocation was available to the appellant in terms of section 207 and 208 of the Penal Code.

Mr Kimani, learned counsel for the appellant, initially thought that the appellant could rely on self defence but when we drew his attention to the injuries inflicted on the deceased by the appellant which were brutal and of utmost severity plus the fact that as he beat the retreat the appellant took all the 4 pistols with him, Mr Kimani conceded that the appellant had overreacted and had applied far greater force than could have been justified to meet any possible offensive from the deceased.

Looking at the evidence as a whole, the learned judge’s finding that the appellant called at the deceased’s clinic with intent to commit a felony is not sustainable.

So, at the end of the day, it is agreed by both sides that the appellant was provoked and that this therefore is a case of manslaughter and not murder.

As regards sentence, Mr Kimani was content to leave this to the court. Mr Metho urged us to take serious view of the offence, not only because a precious life was lost through violence, but also because the appellant was involved in a dangerous and illegal enterprise – gun running. This is the sort of activity which can seriously undermine the security of the state and which in our view must be taken into account in arriving at an appropriate sentence.

In the upshot, we allow this appeal, quash the conviction, set aside the sentence and substitute therefore a conviction for manslaughter and sentence the appellant to ten (10) years’ imprisonment from 3rd December, 1987.

We also order that upon completion of the sentence and discharge from prison the appellant be deported to Somalia.