[2022] KEHC 15776 (KLR)

Republic v Abdi (Criminal Case E002 of 2021) [2022] KEHC 15776 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15776 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case E002 of 2021

KW Kiarie, J

December 1, 2022

Between

Republic

Prosecution

and

Hassan Victor Abdi

Accused

Judgment

1. Hassan Victor Abdi is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the December 25, 2020 at Aolo village, Kamagak North location, Rachuonyo South sub county of Homa Bay county, murdered James Mbori Odero.

3. The family of the deceased and that of the accused were involved in a melee. Two versions emerged as to the cause of the two families’ fight. According to the family of the deceased, the family of the accused went near their (deceased’s) home and announced that they were going to kill the Odero’s family. The mother of the accused ordered him to stab the “dog”. This is when the accused stabbed the deceased.

4. According to the accused, the two families engaged each other after Albert Omondi, his brother, was beaten by the family of the deceased. The mother of the deceased was armed with a knife and a machete and wanted to stab his mother. He intervened and the process heard the deceased had been stabbed.

5. The accused contended that he only participated in separating those who were fighting and in rescuing his mother.

6. The issues for determination are:a.Which of the two versions is credible:b.Whether it was the accused who fatally stabbed the deceased; andc.Whether the prosecution proved its case to the required standards against the accused.

7. Samson Nyambune Odera (PW1) is the father of the deceased. He testified that he went to his gate after he had heard some people saying that they were going to kill his family. He found the mother of the accused and his sisters at the gate. The accused was at their common gate. It was at this juncture that the mother of the accused handed to him a knife and asked him to stab the “dog”. The accused stabbed the deceased who had arrived at the scene ahead of him. He testified that the mother of the accused and his sisters were still at large.

8. During cross examination, he conceded that his statement to the police indicated that he arrived at the scene with the deceased. He also conceded that he did not record in his statement that the mother of the accused asked him to stab the “dog”. He denied that his family was fighting with that of the accused. He testified that he did not know who Albert Omondi was. This was clearly not true. His son Jackton Obel Odero (PW3) testified that the whole incident was started by Albert who beat Peter with a slasher before running away. He said Albert is the brother of the accused. Since this are neighbours, his father was not truthful when he testified that he did not know him.

9. John Peter Ouma (PW4) testified that they were being beaten by the family of the accused but did not know why. When he heard his father cry that James Mbori had been stabbed, he turned and saw the accused holding a knife. Though he testified that Jane Osewe was carrying the knife, he conceded that his statement to the police did not indicate that Jane Osewe or the accused were carrying a knife.

10. Hassan Victor Abdi, the accused, testified that when he went to the road after being attracted by noises, he found his family and that of the deceased fighting. Albert Omondi, his brother was bleeding from the head. His mother had a stick while his sisters were not armed. He went to separate Truphine and his sister Sophy. When he was pushed into a bush, he saw Julia, the mother of the deceased, approach his mother while armed with a machete. John Peter hit his (accused’s) mother with a stick on the head and she fell down. It was at this juncture that he kicked Julia on the hand as she approached his mother. The deceased came from a neighbour’s home and held his (deceased’s) mother. She however overcame the deceased and went to attack his mother with a knife. The deceased held his mother briefly before releasing her and he ran away. His evidence tends to infer that the deceased was stabbed by his own mother.

11. The witnesses from the family of the deceased have given contradictory evidence in some material aspects and raises doubts about their credibility. It is incredible that they contended that they did not know why they were being attacked by their neighbours with whom they have never had any differences. The Court of Appeal in the case ofNdungu Kimanyi v Republic [1979] KLR 283(Madan, Miller and Potter JJA) held:The witness in a criminal case 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.

12. The defence of the accused explains the background of the melee. He called his mother Jane Atieno Osewe (DW2) and Sophie Rubby (DW3) as witnesses. Their testimony corroborated his evidence. Incidentally, these are the people Samson Nyambune Odera (PW1) claimed were at large. The accused produced P3 forms in respect of Albert Omondi, Jane Atieno Osewe (DW2) and Sophie Rubby (DW3) which confirmed that the trio were injured as contended by the accused.

13. According to the investigating officer, CPL Mark Lipale (PW2), the incident happened when the accused was arbitrating between the two families. He also testified that it was the mother of the deceased who had the knife. However Julia who had the knife did not record a statement and was not called to testify. This was a very material witness. She ought to have been called to testify as to how the knife she had stabbed her son and by whom. The Court of Appeal in the case of Bukenya v Uganda [1972] EA 549, (Lutta Ag Vice President) held:The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.

14. Due to the many contradictions, inconsistencies and denials of the obvious by the family of the deceased, I am persuaded to believe the version of the accused which was to a greater extent supported by the evidence of the investigating officer.

15. From the foregoing analysis of the evidence on record, I find that the prosecution has failed to prove its case against the accused person. I accordingly acquit him of the offence of murder and set him free unless if otherwise lawfully held.

Delivered and signed at Homa Bay this 1stday of December, 2022KIARIE WAWERU KIARIEJUDGE