[2023] KEHC 26641 (KLR)

Director of Public Prosecutions v Decosta (Criminal Case 32 of 2018) [2023] KEHC 26641 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26641 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 32 of 2018

TW Cherere, J

December 14, 2023

Between

Director of Public Prosecutions

Prosecutor

and

Abdi Abdalla Decosta

Accused

Judgment

1. Abdi Abdalla Decosta (Accused) is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code in that on 18th April, 2016 at about 06. 30 hrs at Wabera Estate in Isiolo Township within Isiolo County murdered Halima Omar Godana

2. The prosecution case as narrated by EE1 was that on the material date between 06. 00 and 06. 30 hrs, she was in her house with Halima Omar Godana (Halima) when she heard a knock on the door. That Halima went to open the door and it was then that Accused whom she knew as he had previously visited her house in company of Halima opened fire on Halima shooting her three times after which he collected the spent cartilages and drove off in M/V KBP leaving Halima for dead.

3. EE2 upon receiving information that his daughter Halima had been shot dead, he rushed to the scene and finding and confirmed that Halima had indeed been murdered and was informed that the offence was committed by Godana who he said had been cohabiting with Halima for about 6 months. Nuria Dabaso was attracted to the scene of crime by screams from one Zainabu and she arrived to find Halima lying dead in a pool of blood.

4. IP Kithinji visited the scene of murder and removed Halima’s body to the mortuary. He also witnessed the autopsy and received a bullet PEXH. 7 that was found lodged on Halima’s chest wall subsequent to which he forwarded it for ballistic examination. The scene was visited by Crime Scene personnel and three photographs marked PEXH. 9 were taken.

5. An autopsy on Halima’s body was conducted 18th April, 2016 by Dr. Mohamed Abdikadir. The postmortem form tendered as PEXH. 1 reveals that Halima suffered three gunshots with entry points on the anterior chest wall, the second below the left clavicle and the third on the left lateral chest wall. Also noted were two exit points on the left forearm and below the left armpit while the third bullet was lodged on the posterior chest wall. The gunshots damaged the lungs and the heart including the big blood vessels as a result of which Halima died of cardiopulmonary arrest due to severe blood loss. A blood-stained dress PEXH. 8 recovered from Halima was subjected to DNA analysis which revealed that it was stained with her blood as shown on the report marked PEXH. 4.

6. That Accused was a police officer at Isiolo AP HQs and had on 18th April, 2018 been issued with a revolver serial number 69060 with 5 rounds of ammunition of .38 mm caliber was demonstrated by a firearms movement register PEXH. 6 tendered by the amourer PC Benjamin Mwendwa Paul.

7. The Ballistic examiner examined a revolver serial number TK69060, 2 spent cartilages and three rounds of ammunitions of caliber 0. 38 mm. After test firing the three rounds of ammunitions using revolver serial number TK69060, he formed an opinion that the two spent cartilages were fired from revolver serial number TK69060 as shown on the report marked PEXH. 5.

8. Subsequently on 19th April, 2016, Accused M/V KBP 896E which was suspected to have been the get-away car after the murder was impounded in a yard at Sagana. Accused finally surrendered to his colleagues in Voi on 27th March, 2018 and was escorted to Isiolo Police Station and charged.

9. In his sworn defence, Accused conceded that he had been issued with a revolver serial number TK69060 and five rounds of ammunitions of caliber 0. 38 mm. He also conceded that he was in a relationship with Halima and had on 18th April, 2016 visited the house of Zainabu where Halima was staying while armed with the said gun. It was his evidence that he left the gun in his M/V KBP 896E and went to the bathroom only to be startled by shouts of Halima threatening to kill herself and others. That in attempt to disarm Halima, the gun fired twice hitting her on the chest. He conceded that he left the scene and subsequently surrender about 2 years thereafter.

Analysis and determination 10. Section 203 and 204 of the Penal Codeunder which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought.

11. I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the Halima; that Accused person caused the said death and that he was actuated by malice.

a. The death of the deceased 12. The postmortem form tendered in evidence PEXH. 1 reveals that that Halima died of cardiopulmonary arrest due to severe blood loss occasioned by a gunshot on the anterior chest wall, another below the left clavicle and the third on the left lateral chest wall that damaged the lungs and the heart including the big blood vessels.

b. Proof that accused person committed the unlawful act which caused the death of the deceased 13. The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on Article 50(2) (a) of the Constitution which guarantees individual freedoms under the Bill of Rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the State and does not shift to the Accused.

14. Lord Denning in the case of Miller vs. Minister of Pensions (1942) A.C. stated as follows: -“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 his favour which can be dismissed with the sentence, of course it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

15. The degree of proof in criminal cases was properly established in the classicus English case of Woolmington vs. DPP 1935 A C 462. Similarly, in Bakare vs. State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: -“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”.

16. Accused does not deny that he was at the scene Halima was shot dead nor he deny that it was the gun issued to him that committed the heinous crime. Witness referred to as EE1 stated that the incident happened in her house and in her presence. It was her evidence that Halima had gone to answer to a knock on the door when Accused without any provocation shot her three times killing her instantly. Whereas Accused in his defence claimed that the firing of the gun occurred as he was trying to take the gun from Halima, this line of evidence was not put to the witness that implicated Accused during cross-examination to give her a chance to answer to the allegation that there was a struggle between Halima and Accused and that the shots were accidental.

17. Additionally, the points of entry of the gunshots on the front of chest, side of chest and on the clavicle do not appear accidental but give the impression that they were aimed purposely at Halima as was described by the first witness that Halima was facing Accused when he first shot her on the frontal chest and was shot twice after she was felled by the first shot.

18. In the circumstances, Accused’s defence can only be treated as an afterthought. The Accused’s defence in its entirety amounts to mere denial and does not upset the cogent evidence adduced against him by the prosecution. Consequently, I find that the prosecution case that Accused without any provocation attacked PW1 and in the process committed the unlawful act in which Princess was fatally injured proved

Malice aforethought 19. In Morris Aluoch v Republic Cr. Appeal No. 47 of 1996 [1997] eKLR), the Court of Appeal cited the case of Rex Vs Tubere S/o Ochen (1945) 12 EACA 63 with approval where it was stated as follows:“If repeated blows inflicted the injury then malice aforethought could well be presumed…….” .

20. In this case, there is evidence of repeated blows in that even after Halima was felled by the first bullet, Accused shot her twice as she lay helpless on the ground. The repeated shots damaged Halima’s lungs and the heart including the big blood vessels as a result of which she bled to a painful death.

21. The injuries inflicted on Halima were aimed at the most delicate parts of the boy i.e the chest and Accused ought to have known that such grave injuries could possibly cause grievous harm or the death of Halima.

22. Right to life is protected by Article 26 of the Constitution and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63). The death of Halima was intentional and unlawful.

23. Having considered all the evidence in this case, I reject the defence and find that the prosecution has proved the charge of murder against Accused and he is found GUILTY and is convicted accordingly.

DATED THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneAccused 1 & 2 - PresentFor Accused - Ms. Oteko AdvocateFor DPP - Ms. Rita (PC 1)