[2022] KEHC 13464 (KLR)

Bango v Republic (Criminal Case 26 of 2018) [2022] KEHC 13464 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13464 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case 26 of 2018

RPV Wendoh, J

October 6, 2022

Between

Odhiambo Calvince Bango

Accused

and

Republic

State

Judgment

1. Odhiambo Calvince Bango faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the charge are that on October 6, 2018 at about 11:00pm at Capricorn Lounge Bar in Sori Market Nyatike Sub – County, in Migori County, murdered Weaver Ochieng Ngaji.

3. The accused denied the charge. The case proceeded to full trial. The first five prosecution witnesses were heard by J Mrima. Upon transfer, this court took over the matter, heard the last two prosecution witnesses and the defence case.

4. The prosecution counsel were Mr Kimanthi and later, Mr Omooria. The accused was represented by Mr Singei Advocate.

5. PW1 Hezron Omondi Otulu testified that on October 6,2018, about 11:00pm while at Capricorn Club in Sori, where he worked as DJ, he saw his friend Chief run into the Club and that Accused whom he also knew, entered the club through another door; that accused followed Chief and that Chief raised his voice and stated that accused had stabbed him with a knife; PW1 saw when the accused pulled the knife from Chief’s stomach and ran out towards his house which was nearby; that accused also ran out of the bar. PW1 picked two bottles and followed accused but found he had boarded a motor cycle and left. PW1 stated that he was able to witness the incident because of the lights in the bar. He said that Dickens (PW4) is one of the people who took the deceased to hospital.

6. PW2 Michael Oure Odeka, recalled that he was woken up by the mother of the deceased on October 6, 2016. She asked him to accompany her to go and see the deceased in hospital as the deceased had been injured. He obliged. He later helped to take the deceased to Homa Bay Hospital and reported the matter at Luanda Police Station. Two days later when he went to the Hospital, deceased died in his presence.

7. PW3 Nancy Anyango Miguna, the deceased’s mother recalled October 7, 2018, she was informed that the deceased had been injured and taken to Sori Lakeside Hospital. She found him at the Hospital and he had been stabbed on the stomach. He was transferred to HomaBay Hospital where he died and she identified the body on November 11, 2018 for purposes of post mortem.

8. PW4 Dickens Otieno Owuor a motor cycle rider, recalled that on November 6, 2018 about 11:00pm, he was at Alendo Bar taking alcohol with friends when the deceased called him and informed him that he was at Platonic Bar and somebody was threatening his life and asked him to go where he was which he did on his motor cycle. He found about ten (10) people quarreling outside the bar near the main gate. They included Accused and the deceased. He took deceased into the bar and came out to talk to the accused who was claiming that the deceased had an affair with his wife who worked as a bar Counter lady. Since the accused could not agree to resolve the matter, PW4 took deceased to his house as he was drunk.; that by then the deceased did not have any injuries. He managed to take the deceased to his place of residence and left accused outside the bar. He rode back to Platonic Bar where he had left his motor cycle and found accused still quarreling threatening to kill the deceased because his wife had left with his property and money; that accused then took a knife from one of the people he was with, took a motor cycle and rode towards the direction of the deceased’s house and he followed on foot. He found accused and two people at the gate and proceeded where deceased was but when on the corridor, he saw accused holding a knife and deceased was holding his stomach with both hands bending crying that accused had killed him; that accused passed by him. He found deceased outside his house though he had left him in the room and instructed him to lock from inside. He rushed deceased to hospital called deceased’s mother and informed her of the occurrence. He reported at Riat Police Post and Luanda Police Station. He said that the scene where deceased was stabbed was on the corridor outside the room where deceased lived.

9. PW5 Calvince Otieno Ngaji a brother to the deceased witnessed the post mortem that was performed on October 11, 2018 after identifying the body.

10. PW6 PC Abdi Sataa was the investigating officer in this case. He recorded witnesses statements and proceeded to the scene at Capricorn Lounge Bar where he was shown the deceased’s house which was a rented room in the same premises. He also visited HomaBay Hospital where he found the deceased’s body where he noted a stab wound on the stomach and post mortem was conducted; that accused surrendered to Migori Police Station and was detained and he presented accused before court for plea. PW6 also drew a sketch plan of the deceased’s house.

11. PW7, Dr Kevin Osuri, performed a post mortem on the deceased on October 11, 2018 after it was identified by PW2 and PW3. PW7 also sutured an incision from the midline to the sternum. On opening the body, he found that the liver was raptured, the stomach, diaphragm was perforated. He formed the opinion that the cause of death was traumatic up near or that breathing was arrested due to trauma to raptured diaphragm.

12. At the close of the prosecution case, the accused was called upon to defend himself. He gave unsworn evidence (DW1) and called one witness, Wilson Okoth Bor. The accused stated that on October 6, 2018 he was at work at CDF Office, Ong’era till 5:00pm. He works as a mason. At 5:30 p,m he took a vehicle back to Karungu. He had given his moto cycle for hire to Collins. They met at Sori stage while he was with Okoth. He requested for the motor cycle and both rode home arriving there at 7:20pm he slept. Next day he went to work at Onge’ra. After a week, he heard that he had been charged and went to report at Migori Police Station and was arrested for this offence which he has no knowledge about.

13. DW2 Wilson Okoth knows the accused since childhood. He testified that they were at work at Ong’era CDF Office. They were three and left for Sori whereby the accused asked for Mzee who had his motor cycle to give him. They met at Platonic stage and rode home, him and accused.Both the prosecution and defence filed closing submissions.

14. In his submissions Mr Singei framed three issues for determination. The first is whether the accused person inflicted the injuries on the deceased and caused death. He observed that the evidence of PW1 and PW4, the eye witness and PW6 the investigating officer was inconsistent as to the scene of crime and that it is not even whose testimony the court should accept as being correct and that the court should therefore accept the accused’s alibi defence that he was not at the scene. Counsel relied on the decision of Ricky Ganda v The State(2012) ZAFSH 59, Free State High Court, Bloemfontein which was considered in Philip Muiruri Ndaruga v Republic (2016) eKLR when dealing with contradictory evidence. Counsel also cited the case ofDonald Atemia Sipendi vs Republic(2019)eKLR , where the court caution based on single identifying witness and that the court has to exercise great care in relying on such evidence.

15. The second issue is whether the said possessed malice afterthought. Counsel urged that the accused has not been identified as the culprit hence no proof of malice afterthought.

16. The third issue is whether the prosecution has proved its case beyond reasonable doubt as defined in Woolmington vs DPP (1935) EACA 462 and Bakare v State(1985) 2NWLR page 465. Counsel urged that the case had not been proved to the required standard.

17. Of discrepancies in the prosecution case Counsel relied on the decision ofDavid Ojeabuo v Federal Republic of Nigeria 2014 LPELR22555 CA; Philip Nzaka Watu v Republic(2016)EKLR and Twehangane Alfred v Uganda Criminal Appeal No 139 of 2001(2003) UGCA6. He confirmed that though each case must be considered on its own peculiar facts, in the instant case, the prosecution never made an attempt to reevaluate the inconsistencies.

18. Lastly, counsel urged that PW1 and PW4 claimed that there were other witnesses present at the scene yet they were not called and the court should find that their evidence may have been adverse to the prosecution case as held in Bukenya and Others v Uganda (1972)EA 549. He urged the court to give the accused the benefit of doubt and acquit him.

19. In his submission Mr. Omooria, the prosecution counsel considered the crucial elements that constitute an offence of murder, the first one being proof of the fact of death of the deceased. He submitted that there is ample evidence on the deceased’s death through the testimonies of PW1, PW4 and corroborated by the findings of the Doctor, PW7.

20. As to who committed the unlawful act that caused the death, counsel submitted that PW1 and PW4 are witnesses to the offence and that though there were some discrepancies in the evidence of PW1 and PW4 they did not affect the main substance of the charge. He relied on some of the authorities cited by the defence counsel i.e. Philip Nzaka Watu; Erick Onayngo Odeny v Republic Criminal Appeal 73 of 1993; Joseph Maina Mwangi v Republic Criminal Appeal 73 of 1882 and Twehangane Alfred vs Uganda (supra). He urged the court to ignore the accused’s’ unsworn defence which lacks any evidential value and urged the court to convict the accused.

21. The responsibility to prove a criminal charge lies with the prosecution. The standard of proof is proof beyond reasonable doubt. The same was espoused in the case of Woolmington v DPP (1935) ac 462. In Miller v Minister for Pensions(1942)AC Lord Denning in regard to the doctrine of beyond reasonable doubt.“It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted forceful possibilities to deflect the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

22. See alsoBakare v State (1985) 2NWLR the Supreme Court of Nigeria considered the standard of proof. To prove a charge of a murder under Section 203 Penal Code, it is the duty of the prosecution to prove beyond reasonable doubt the following:-1. Proof of the deceased’s death;2. proof that the accused caused the act or omission that resulted in the death;3. That the accused possessed malice afterthought.

Proof of death 23. The deceased did not die at the scene where he was stabbed. PW1 and PW4 saw the deceased soon after he was injured on the stomach. PW2 stated that he visited the deceased at the hospital two days later and he died in his presence. PW2, PW3 and PW6 attended the deceased’s post mortem which was conducted by PW7 (Doctor) The Doctor found that the deceased’s diaphragm was perforated, liver and stomach were raptured, and an attempt to repair them. He opined that the cause of death was traumatic apnea which means that the breathing was arrested due to trauma to the raptured diaphragm. The death of the deceased is not in doubt.

Whether accused caused the injury that led to the death: 24. The two key witnesses in this matter who testified to have witnessed the attack on the deceased are PW1 and PW4. PW1 a disc jockery (DJ) at Capricorn Club was winding up work at about 11:00pm when he saw the deceased whom he knew as Chief enter into the Club running. He then saw accused coming into the bar from the upper door; that the deceased stood at the main entrance where accused followed him. He heard the deceased shout that accused had stabbed him with a knife and he saw the accused remove the knife from the deceased’s stomach. PW1 knew both accused and deceased and that the bar was well lit; that accused then ran out of the bar towards his house whereas deceased was taken to hospital. On his part, PW4 stated that he was at Alendo bar when the deceased called him from Platonic Bar and asked him for assistance as people were threatening him . PW4 went where the deceased was, outside a bar and found people quarrelling. Accused was with two other men and other people all totaling about ten (10) people. He took deceased into the bar, came back to talk to accused and accused was adamant that the deceased had an affair with his wife who worked as a Bar Counter Lady. He escorted the deceased to his house when he was fine. He told the deceased to lock his door. On going back where accused was, he found him still upset and stated that he must kill the deceased for taking his wife who had also taken his property; that accused took a knife from one of those with him and took a motor cycle and headed towards the deceased’s house. PW4 followed on foot. He left accused with others at the gate and when on the corridor, he saw accused with a knife and deceased was holding his stomach with both hands, was bending crying saying accused had killed him. Accused walked away as PW4 took deceased to hospital.

25. It is the defence case that the evidence of the two key witnesses as to the scene where the deceased was injured is so contradictory as to vitiate the charge. The courts have discussed the issue of contradictions in evidence and when contradictions can be held to discredit the prosecution case. In the Nigerian case of David Ojeabuosupra, the court said:“Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradicts one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains.”

26. As to when the discrepancies in the evidence of witnesses will discredit the witnesses evidence, it has been held to depend on the nature of the discrepancies as was held inJohn Cancio SA v V N Amin, HCC 27 OF 1933 (1934)1EACA 13, where the court said:-“Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people allege that they made a journey together from Kampala to Nairobi and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never undertaken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory.”In Philip Nzaka’s case, the court held :-“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people can perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

27. Guided by the principle that in human recollection, no two witnesses can recall exactly the same thing to the minutest detail, I will consider the evidence tendered before this court.

28. The Key question to be answered is where was the scene of crime. According to PW1, the deceased was injured at his place of work Capricorn Club. From PW1’S narration, this incident was inside the bar. However, PW4’s narration that the incident was on the corridor of the place where deceased resided was corroborated by PW6’s testimony. PW6 visted the scene and drew a sketch map. Although the sketch map left out many details, it is clear that the incident was at Capricorn Bar or Club. PW1 did not go into details to tell the court that there were any residential rooms at the club. However, PW4 told the court that he had even taken the deceased to the room earlier on and told him to stay there but since he was injured while outside on the corridor it means that he had gone out of his house again.

29. What is not in dispute is the fact that PW1 and PW4 witnessed the incident at different stages or times. Although PW1 saw accused chase the deceased, he only managed to see when the accused pulled the knife from the deceased’s stomach. On the other hand, PW4 who had followed the accused to the deceased’s residence, said before reaching, and as he was along the corridor, he saw accused person holding a knife in his left hand and the deceased was holding his stomach with two hands. Deceased was bent crying and shouting the name of the accused persons as the one who had killed him. It means that PW1 witnessed the incident before PW4 did. PW1 confirmed in his testimony that PW4 Dickens is one of the people who took deceased to hospital thus placing PW1 at the scene.

30. From a review of the testimonies of PW1, PW4 an PW6, I am satisfied that the incident occurred at Capricorn bar Club. In my view, the contradictions as to the scene of crime were not grave as to discredit the prosecution case. As was held in Philip Nzaka case (supra) no two witnessed can recall exactly the same thing to the minute detail and some witnesses are given to more detail than others. I am satisfied that the prosecution proved beyond doubt that the deceased was injured outside his residence at Capricorn Bar where he had rented a room and PW1 and PW4 who knew accused identified him as the perpetrator. PW4 had tried to intervene between accused and deceased before accused followed deceased to his residence. The accused is the perpetrator.

31. In his sworn defence, the accused denied committing the offence and told the court how he came from work and proceeded home in the company of PW2 about 6:30pm to 7:00pm Both admitted to the accused owning a motor cycle. PW1 and PW4’s evidence placed him at Platonic and Capricorn Bar at about 11:00pm DW2’s testimony was therefore not helpful to accused because he could not tell where accused was at 11:00 pm of the same night. This court is aware that when one raises an alibi defence, the accused does not assume any duty to prove its truth or falsity but the duty always remains with the prosecution. In Ssentalle v Uganda(1968) EA 36, the court held that the prosecution always bears the burden of disproving an alibi and proving the appellants guilt. InSukha Singh s/o Wazir (1939) 6 EACA 145, the East African Court of Appeal stated as follows:-“"If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped".

32. In Festo Androa Asenua v UgandaCriminal Appeal 1 of 1998, the court observed that if a person raises an alibi defence belatedly, it goes to the credibility of the defence. In this case, the alibi defence was raised belatedly and in any case, it has totally been dislodged by the testimonies of PW1 and PW4 who placed accused at the scene of crime.Whether malice afterthought was proved:

33. Section 206 of Penal Code defines what constitutes malice aforethought. Section 206 Penal Code provides as follows:“206 malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances:-a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b)Knowledge that the act or omission causing death will probably cause the death of or grievous harm to same person, whether the person is the person actually killed or not although such knowledge is accompanied by indifference. Whether death or grievously bodily harm is caused.c)an intent to commit a felony;d)an intention by the act or omission facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”

34. There are a host of authorities which have discussed what constitutes malice afterthought. In Rex v. Tubere s/o Ochen (1945)12EACA 63, the Eastern Court of Appeal stated thus:“In determining existence or non existence of malice one has to look at the facts proving the weapon used, the manner in which it is used, the part of the body injured, the conduct of the accused before, during and after the attack.”InHyam vs DDP (1974) AC the court held:-“Malice afterthought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.”

35. PW4 told the court that he had intervened between accused and deceased while they were at Platonic Bar. However, even after the deceased was taken to his house, the accused followed him threatening to kill him all because of a dispute over a woman. The accused was armed with a knife and stabbed deceased at a delicate part of the body. It was not a superficial stab but a deep one that raptured the diaphragm, the liver and stomach. I am satisfied that the accused intended to inflict grievous injury on the deceased or cause him death. Even after inflicting that one serious wound, the accused casually walked away and rode away on a waiting motor cycle. The accused’s actions all point to him having possessed malice afterthought.

36. It was Mr. Singei’s submission that some witnesses who were mentioned as being preset at the scene were not called as witnesses.

37. It is trite that it is the duty of the prosecution to call all the witnesses who are relevant to their case even if the evidence may tend to be adverse to their case. What is required is that the truth of the case be laid before the court so that the court can arrive at a fair decision.

38. Section 143 of the Evidence Act, provides that no particular number of witnesses is required to prove any fact unless a statute provides so. It is not for the defence to determine which witnesses the prosecution should call. However, the prosecution should not fail to call relevant witness for ulterior motives such as, if they know that the evidence will be adverse to their case.InKeter v Republic (2007) 1EA 135, the court held inter alia:-“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.

39. In Bukenya & Others v Republic (1972) EA 549(PAGE 551) The East African Court of Appeal held:-“While the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate, and it appears that there were other witnesses available who were not called, the court is entitled under general law of evidence to draw an inference that the evidence of those witnesses, if called, would have tended to be adverse to the prosecution”.

40. In this case, though indeed PW1 and PW4 indicated that there were other people present at the scene, the said people were not named or called as witnesses. It would only be necessary to call them if the court found the evidence of PW1 and is to be inadequate. The court has found that the evidence of the two witnesses is reliable and safe to rely upon to found a conviction

41. In the end, I come to the conclusion that the prosecution has proved beyond any reasonable doubt that the accused, while armed with a knife, attacked the deceased inflicting on him a fatal stab wound. I find him guilty of the offence of murder as charged and convict him accordingly under Section 322(1) of the Criminal Procedure Code.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 6TH DAY OF OCTOBER, 2022R. WENDOHJUDGEDelivered in the presence of:Mr. Mulama for StateMr. Singei for AccusedAccused PresentMs. Nyauke Court Assistant