[1999] KEHC 49 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Criminal Case 11 of 1997

REPUBLIC ....................................................... PROSECUTOR

- VERSUS -

AMBARI GANDANI KONDE..................................... ACCUSED

JUDGEMENT

The charge facing the accused person in this case is Murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya.

The particulars of the charge are that:

"On 21. 8.95 at around 9 P.M. at SomaliVillage, Kariang'ombe Sub-location RabaiLocation in Kilifi District of Coast Province,he murdered Nyakondo Gandani Konde".

The prosecution called 9 witnesses to prove that charge beyond reasonable doubt.

The easiest part is to decide the fact of death. For that we have the evidence of P.W.I KONDE MWANZAMBO, (KONDE), P.W.2, WASHE MUNG' ARO WASHE (WASHE), (P.W.3, MWANZAMBO KONDE (MWANZAMBO) (P.W.4, DZAME MWANZAMBO (DZAME), P.W.5. NDEYE MUNG'ARO MWADZAMBO (NDEYE), and P.W.6, MWADZALA JAKA AMBARI(MWADZALA) all of whom saw the body of the deceased as it layinside the house before collection by the Police. It was collectedby P.W.7 PC OMAR MWAGUMBA (P.C. OMAR) and P.W.9 REUBEN KIMANI (P.C. KIMANI) who took it to the mortuary for Post Mortem Examinationbefore it was released for burial.

What caused the death? Who caused it? Was it caused ofmalice aforethought to amount to Murder? These questions have tobe answered from the evidence on record.

There is no benefit of a Post Mortem report since Dr. Mandalyawho performed it and was expected to give evidence did not do so.He would have given his opinion on the cause of death. Lack ofsuch opinion is however not fatal to the entire case as it onlyreflects on the weight to be placed on the other prosecutionevidence on record. Such was the evidence of Konde (P.W.I) andWashe (P.W.2).

They were the first to arrive at the scene and saw thedeceased lying down bleeding. According to Washe she had beenpierced through her left side and was bleeding. Others who camelater like Mwadzala (P.W.6), saw a cut on the head of the deceased,and P.C. Kimani (P.W.9) who also saw a deep cut on the head of thedeceased. Assessor Isaac Karania was of the view despite thisevidence that the injuries were not proved but Assessor John Radullwas satisfied that there were injuries inflicted on the deceased.I have no reason to reject the observations of the three witnesses which is consistent and accept that there were injuries on thedeceased.

As to who caused them, again the star witnesses in this wereP.W.I Konde and P.W.2 Washe. Konde is the elder brother of theAccused while Washe is the Accused's uncle. They all live in onecompound and Konde's house almost adjoins that of the Accused andlies between the house of Washe and the Accused's house.

Konde spent the whole morning of 21. 8.95 at the home. He washaving discussions on family matters with the accused and they werenot disturbed except by the Accused's wife at 8 a.m. when shecalled the accused to go and have tea in the house, and lunch hourwhen she called him to go and have "sima" for lunch. Konde thenwent out for a stroll and returned home at 6 p.m. At 8 p.m. Washe,their uncle, came to his house and they also had discussions beforeretiring to go to bed.

It was Konde's recollection that at about 9 p.m. he heard screams of "Mama Yeee...... " from the Accused's house. Wa she also heard the same screams and they meant to him that someone was inpain and in distress. In court they attempted to add "Nauawa" tothe screams but admitted in cross examination that those actualwords of "Nauawa" were not pronounced. The scream was in Giriama Language "Ma Yoooo..... ". It was their own interpretation of the nature of the scream they heard. Upon hearing the scream which was emanating from the Accused's house they headed there. They found the main door bolted and would not be opened despite their knock on it. Konde broke it down and they both came face to face with the Accused holding a jembe and the deceased lying on the floor at his feet. Konde told him to drop down the jembe and the Accused did so. They held him and dragged him outside where, despite some resistance, they wrestled him down and tied him up with a rope.The accused, they testified, was looking furious and it was not possible to talk to him about the incident. He and the deceased were then collected by Mariakani Police at 11 p.m. after the two made a report at 10 p.m.

Other members of the Accused's family also testified about hispresence at home in the course of that day. His mother Dzame(P.W.4) testified that she had seen the Accused before she went for"Matanga" ceremony in the neighbourhood earlier that evening.During the day, she said, she also saw the Accused and greeted him.She told him she would be going for "Matanga" or funeral ceremony.He was with his wife when she saw him.

The Accused's Aunt NDEYE (P.W.5) who is the wife of Washe(P.W.2) also confirmed that the Accused was at home during the day.She saw and spoke to him at the homestead. He was conversing withother members of the family. She was also with the Accused's wifeduring the day. She went to bed in the evening only to be awakenedby screams from the Accused's house which is about 15 metres awayfrom hers.

There is also on record the evidence contained in the Chargeand Caution Statement recorded from the Accused by S.P. SOLOMON ONGORO OLIECH (S.P. OLIECH). It was recorded on 27. 8.95 and wasproduced without objection that it was taken without compliancewith the law. The evidence of SP Oliech was not challenged thatthe statement was given by the Accused voluntarily and withoutthreats or promises. In it the Accused admitted that he killed hiswife but he did so after he found her in bed with another manmaking love. He got mad and wanted to beat up the man but heescaped. He then turned to his wife and cut her with a jembe.

In court however, the Accused gave evidence on oath. Hedenied that he was at home during the day on 21. 8.95. On thecontrary he had been on duty at his place of work at Dal-Ur-Um-Mosque at Likoni Mombasa where he is a watchman.

He left work at 6,30 p.m. and took a bus home. He arrived at9 p.m. carrying some provisions he had bought. He found, the maindoor of his house was open. He went inside and found his wife witha man on his bed. He was shocked but did not talk. It was theother man who rose up and picked up a jembe which was nearby. Heswung the jembe intending to hit the Accused. His wife was at thatvery moment trying to run out and when the Accused ducked to avoidthe jembe which was swung at him, it hit his wife instead. Hescreamed "Jamani Mtu eeeh" and the man escaped. Other people - hisbrother and his uncle, then came to the scene but did not find theother person. He never recognised the stranger although there wasa small tin - lamp alight in the house. His brother and uncle caught and tied him up alleging that he had hit his wife althoughhe had not.

That line of defence was alluded to during cross examinationof the prosecution witnesses Konde and Washe, that the son of Kondewas having a sexual affair with the Accused's wife who is his Aunt.That son was called as P.W.3 MWADZAMBO. He has a serious stammerand his evidence in chief was not completed but he was offered tothe defence for cross examination. He denied having had a sexualaffair with his Aunt, the Accused's wife or having been in theAccused's house on the evening of 21. 8.95.

In considering the totality of that evidence Assessor IsaacKaranja was of the view that there was a reasonable doubt as towhether the Accused found a man in bed with his wife when in theprocess of the paramour escaping the deceased sustained injuries.He gave the doubt as to whether the injuries were caused by theAccused or the paramour, to the Accused and was of the opinion thatthe offence was not proved beyond doubt. The only other assessorremaining in the trial, John Radull, accepted as proved beyonddoubt, that the deceased died and that she was injured. He alsoaccepted that it was the Accused who caused the injuries that ledto the death. In this he believed the evidence of Konde (P.W.I)and Washe (P.W.2). He also believed Dzame (P.W.4) and Ndeye(P.W.5) that the accused was at home that day despite the accused'sassertion that he was elsewhere. As for intent, the Assessor wasof the view that it was not proved. The Accused's confession was not unconditional. It could well be the case that his wife wasfound in bed with someone else in which case there was sufficientprovocation. He would acquit the accused of the charge of Murderbut find him guilty of Manslaughter.

Learned Defence Counsel Mr. Magolo submitted that the absenceof a post mortem report or a Pathologist's report would mean thatthe deceased never died and was buried alive or asleep orunconscious or in a coma. That the cause of death was not provedsince the deceased who was in bed with another person could havebeen strangled, or died of a sickness. Counsel urged the court toaccept the Accused's evidence that the deceased was hit by herlover and not the Accused. There was no direct evidence on thedeath except the statement given to the Police by the accused. Inthat statement he gave a reason for the killing and the admissioncannot therefore amount to Murder.

Learned State Counsel Mr. Ngeno on the other hand urged thecourt to accept the confessionary statement recorded from theAccused and disregard his evidence in court which was merelytailored to exonerate the Accused from the killing and to confusethe court, There was evidence that the Accused was at homethroughout that day despite his denial. There was no basis formaking the submission that the deceased was buried alive or was notkilled. In his view, on the evidence, the offence of Murder andnot Manslaughter was proved beyond doubt.

I have carefully considered all the evidence on record, thesubmissions of Counsel and the opinions of the assessors. Theopinions of the Assessors are not binding on this court but I thankthem for assisting in this trial.

As I stated earlier the lack of an opinion on the cause ofdeath is not fatal to the prosecution case as it affects the weightof evidence and not the root of the charge laid. I am satisfiedbeyond doubt from the evidence related above that the deceased diedand there is evidence from the same prosecution witnesses which isbuttressed by the statement of the Accused himself that before theaccused was found dead she, was violently attacked and injured. Asto who attacked her I accept and believe the evidence of Konde(P.W.I) and Washe (P.W.3) who were the first to arrive at the sceneand found the accused behind a locked door which they broke andfound him standing over the dead body. The two were the brother and uncle of the accused and they impressed me as witnesses oftruth. The accused himself did not deny having killed the deceasedand made such admission in his own charge and caution statementproduced as Exhibit 2,without objection, by SP Oliech (P.W.8).

I do not accept the accused's evidence that he never was athome on the day in issue or that he was at his place of work thewhole day. That story cannot stand against the overwhelmingevidence of the accused's brother (P.W.I), Uncle (P.W.2), Mother(P.W.4) and Auntie (P.W.5) all of whom testified that he was athome, I believe those witnesses.

It may well be true however, although it only remains a merepossibility, that the accused may have found another man in bedwith his wife when he entered his bedroom. The allegation was thatit was P.W.3 Mwadzambo whose evidence could not be clearlyextracted because of his serious stammering condition. Henevertheless denied the allegation. But the possibility was notwholly displaced by the prosecution. Whoever it was that was inbed with the accused's wife, it would afford the accused themitigation of provocation, thus reducing the offence of Murder to that of Manslaughter. I agree with assessor John Radull in thatview.

Accordingly I give the Accused person the benefit of doubtthat he was not actuated by malice aforethought in the commissionof the offence. I reduce the charge to one of unlawful killing andconvict the accused for Manslaughter. I acquit him of the charge of murder. \

Dated at Mombasa this 8th day of october 1999 .

P.N. Waki

JUDGE

Magolo for Applicant

Court clerk - LewaJudgement brought forward to 8. 10. 99 and read over, signed anddated.

P.N. Waki

JUDGE

Sentence

Gumo - Accused is a first offender.Magolo

I am instructed to confirm accused is a first offender. He isan old man. He is very sorry and remorseful to have allowed histemper to involve him in such offence.

He has been in custody for 4 years. He has been affected bythe death. I request that the accused be treated leniently.Accused has a family of 5 children. That is a case of anxiety.The accused has decided to start a new life and provide for them Hehas decided never to be involved in crime again. He wants to start a new life.

His brothers will help him to start life again. Purpose ofsentence should help him to start life again. Justice will beserved if accused is not sent to prison.Sentence

I have considered the mitigating circumstances that have been ably put forth by defence Counsel Mr, Magolo, The purpose ofsentencing however is not only to assist an accused to reform assubmitted by Mr. Magolo although it is a central consideration insentencing. It is equally crucial to consider matters ofrestitution for the crime committed and deterrence if there is athreat of repetition of the crime by other members of society.

In this case the deceased was the Accused wife. Shedeserved love and not death. It may well be true that the accusedwas provoked when he found her with another man. But his tempergot the better of him and he killed her instead of dealing withsuch provocation in a more civilized manner to rid himself of anunfaithful wife. It is the kind of reaction that deserves adeterrent sentence to keep like-minded people from killingunfaithful spouses. There is always Divorce as an option.

I appreciate that the accused has decided to start a new lifeand is now reformed as his Counsel believes he has. I hope hemarries again and cares for other peoples lives when he leavesprison, I sentence him to serve 5 years imprisonment.

Dated this 8th day of October, 1999.

P. N Waki

JUDGE

Further Orders

Assessors who participated in this trial are discharged for aperiod of 12 months.

P.N WAKI

JUDGE