[2020] KEHC 115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL CASE NO.21 OF 2017

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

VERSES

ASMAN MAINA MAKOTO.....ACCUSED

JUDGEMENT

1. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the 12th day of November 2016 at Weonia within Transnzoia county murdered Alfred Wafula.

2. The accused denied the offence and the prosecution called a total of 13 witnesses to establish its case. When the accused was placed on his defence he gave sworn evidence and called one witness. Before looking at the merits or otherwise of the charge it shall be necessary to summarise the evidence as presented by the parties.

3. PW1 JAIRO NAMUNABA SIMIYU who works for Nzoia Sugar company testified that on the 12th November 2016 he was at the farm of one farmer called Benson Wekesa at Weonia. They found employees of West Kenya sugar company at the farm who told them not to harvest the sugarcane from the said farm as they had been contracted to do so.

4. He then called Richard Kaka his boss who told them to proceed as he had notified and gotten the consent of the farmer. Immediately the said farmer arrived and told the West Kenya employees to leave and allow Nzoia to harvest the cane.

5. He went on to state that at around 1pm three tractors from West Kenya came and were driven by force through the barbed wire fence. They took off as there were people pelting them with stones from the tractors. The accused who was driving one of the tractors followed the deceased and hit him.

6. He then called his supervisor and informed him what had transpired. They went away and when he came back he found the tractors parked and there were AP officers. The police came and took away the body.

7. On cross examination he said that the farmer said that the cane was his not West Kenya. He said that they all fled to the maize field which was nearby although the maize had recently been harvested. He said that they thought the tractor had left but it charged at them. He said that the tractor hit the deceased on the shoulder side and while down the tractor tyres rolled on him.

8. PW2 PHILIP LUBOKI SIMIYU testified that he works at Nzoia Sugar and he is in charge of the cane cutters. On 12th November 2016 he went to Weonia with 67 others to cut cane at the farm of Benson Wekesa. As they inspected the farm two people from West Kenya on motorcycles arrived and objected to the harvest and after calling his superiors they were ordered to proceed.

9. Shortly thereafter the owner of the farm came and spoke with West Kenya people. At 12. 30 pm West Kenya vehicles arrived with many people and they entered the farm and three tractors also arrived at a high speed. There were people who were armed with stones and clubs. They took off towards a maize field recently harvested. He took a boda boda which took him to Kamukuywa. He later learned that one of the workers had been killed. He saw the body but did not see blood although the legs had been crashed.

10. When cross examined he said that one tractor reg. no. KTCP 929Q entered the shamba by force as the earlier attempt to have the cane taken by West Kenya was resisted. He said that those who were pelting stones were on top of the pickup track. He did not however witness the deceased being hit although he saw the body.

11. PW3 FRANCIS WAFULA WEKESA testified that he worked for Nzoia Sugar and was at the scene at around 9am harvesting the cane. He was informed that the harvesting had been stopped but after he called his boss they were told to go ahead.

12. When he arrived at the scene the owner of the farm and West Kenya officials came and he told them that the sugarcane was his. By then the tractors came through the farms and people in a pickup came pelting stones. People took off to different directions. He however saw the tractor hit the deceased who was also lame. He was about 500 meters from the scene.

13. On cross examination he said that he arrived at the farm while harvesting was ongoing and already there were people from West Kenya. He said that when the tractors arrived they went directly to the farm. He denied that the cane cutters threatened the driver. He insisted that he saw the deceased being hit.

14. PW4 GALEB WABWIRE SIBIRITI a cane cutter testified that he knew the deceased as they worked together as cane cutters. He said that at around 10. 30 am as they harvested Benson Wekesa cane he saw West Kenya supervisors arriving using motorcycles. They went and spoke with the supervisor.

15. About half an hour later vehicles which were branded Kabras arrived ferrying about 15 people and surrounded the farm. The tractor of West Kenya arrived and they began loading cane and when they inquired they pelted them with stones. They defended themselves using pieces of cut cane. They were overpowered and the tractor charged at them at a high speed and they dispersed to different directions. The deceased who was lame could not run fast and he was hit from behind. Their bicycles which they left behind were run over by the pickup track belonging to West Kenya.

16. On cross examination he said that he knew the accused whom he had seen previously. He said that the West Kenya began the fracas as they were going on with their work. He said that the tractor came through the fence and not the road. He insisted that he saw the deceased being knocked by the tractor.

17. PW5 RICHARD KAKA BUKANANE testified that he was a field superintendent at Nzoia sugar. He said that he was called by his staff who were cutting cane at Benson Wekesa farm concerning some situation. He arrived at the scene at 12. 15 pm and met the owner as well as the staff from West Kenya. The said owner told them that he did not have any contract with them.

18. A fracas then ensued and a pickup with many people arrived. The sugarcane was loaded to the tractor and there was resistance. When he later came he found that one of the tractors had knocked someone down.

19. He told the Nzoia staff to go to their homes. Their bicycles had been run over by a vehicle. He said that his cane cutters were not prepared for the incident and they attempted to stop West Kenya from taking the cane. He said that the accused was targeting the deceased as he had the opportunity of going to where he came from.

20. On cross examination he said that there were people in the pick up as well as canter vehicles. He did not see the sugarcane cutters pelt stones on the accused. The deceased died on the spot.

21. PW6 MARK WAFULA who was the brother to the deceased identified the body for post mortem purposes. He said that he did not witness the incident.

22. PW7 DR OKUMU MOSES from the Kitale county referral hospital carried out post mortem on the deceased body and concluded the cause of death as haemorrhage shock secondary to multiple fractures due to traffic accident.

23. PW8 BENSON WEKESA NANGESO the owner of the farm said that he entered into contract with Nzoia sugar to harvest his cane. Earlier own he had approached them to harvest the cane but they did not.

24. On 12th November 2016 he was told that the West Kenya people were at the farm disturbing the cane cutters from Nzoia. He arrived and he clarified the position and they left but after some minutes they arrived and began attacking the harvesters with stones but his attempt to stop them were fruitless as he was also attacked. He sent for the chief who came with police officers who were able to quell the situation. He later learned that the tractor had crushed someone.

25. When cross examined he said that he had signed the contract with West Kenya in July 2015 and he also signed another with Nzoia. He however called the West Kenya staff to cancel the contract.

26. He went on to state that by the time he arrived at the farm Nzoia people were going on with the harvest and the land cruiser from West Kenya had arrived but not the tractors. He said that he identified Evans who had brought him the papers and one David was commanding the tractors. He said that the people who came using the tractor began the trouble. Although he did not see the deceased being knocked he was however knocked outside the sugarcane farm.

27. PW10 JUSTUS MULATI testified that he was the chief Weonia location. He said that on 12 /11/2016 he was at home at 1pm when he was called by a village elder concerning the incident. He went to the scene and found the tractor and the deceased body. He called the police from Sikhendu who came and took photos of the scene.

28. PW11 INSPECTOR PETER WERE produced the photographs of the scene the deceased body and the contents in a bag including a panga.

29. PW12 PC EVANS ODHIAMBO OTIENO from Sikhendu police post went to the scene after the incident and saw the deceased body as well as the three tractors which had been damaged. The accused was not at the scene when they arrived.

30. PW13 C I PHILIP KOSGEI carried out the investigation in the matter herein. He recorded witness statements and preferred charges against the accused. He said that the deceased was knocked at the neighbouring farm of Philip Mwangale. There were clear tyre marks crossing the sugar farm towards the maize field which crossed the road.

31. On cross examination he said that the farmer had contracted both West Kenya and Nzoia companies and that it was Nzoia workers who were carrying out the harvesting. He denied that the accused was being attacked.

32. In his sworn defence the accused testified that he works for West Kenya Sugar Company and as at 12th November 2016 he was its driver. He said that they went to Weonia to load sugarcane on the same day with other two tractors. The cane cutters decided to load sugarcane on his tractor within the farm and he saw cane cutters coming while armed with pangas, rungus and stones. He did not know what was going on but as they arrived to where he was he was ordered to remove the tractor or they will kill him.

33. He said that as he removed the tractor he was pelted with stones and rungus and hit on the leg. Although the tractor was already heavy he decided to get out. The other two tractors as well managed to get out. He stayed for about 5 minutes and the police arrived and asked for the keys. He handed over the same and walked away and did not know what happened thereafter as he left for the factory.

34. He went to Sikhendu police post after three days and saw the damaged tractors. He was interrogated by the police and he told them what had happened. He was however arrested in 2017 and charged and he denied that he hit someone with the tractor.

35. When cross examined he said that the sugarcane belonged to West Kenya and that the tractor was heavy as it was already loaded and could not drive at high speed. He further said that there was a road separating the farms and he did not chase the deceased with the tractor.

36. DW2 DAVID MUKOYA MBALIWA testified on behalf of the accused and he said that he was deputy security officer at West Kenya. He said that on 12th November 2016 he was told about the cane poaching at Weonia and he reported the matter at the police post at Sikhendu. He was advised to involve the farmer.

37. He went to the farm and he found Nzoia harvesting the cane and the farmer agreed that West Kenya should come and carry the cane. Three tractors came and the cane cutters chased them away and were violent. They attacked the tractors using pangas, stones and pangas. He informed the police who came to the scene but were overpowered. They took off and police officers from Kitale came and calm the situation.

38. The tractors were damaged and the police asked for the keys as information came that one of the cutters had been killed. They saw the body which was later taken by the police.

39. He went on to state that the last tractor was being driven by the accused who had been surrounded by the cane cutters and was being pelted with stones. The scene was chaotic as the tractors crushed through the barbed wires and the tractors tyres were deflated. After 4 days the drivers went to collect the tractors from the police station. They were still attacked and there is an ongoing criminal case at Kimilili court no.1163 of 2016.

40. When cross examined he said that the tractor that caused the accident was driven by the accused. He said that the situation was very tense and anything would have happened while the driver was fleeing.

ANALYSIS AND DETERMINATION

41. After the close of the matter the parties were ordered to file their written submissions which they have complied. The learned state counsel submitted that the state had proved the charges against the accused and that all the ingredients of malice aforethought had been met.

42. He said that the accused caused the death of the deceased by hitting him with the tractor and he cannot be heard to say that he had been attacked. He said that the minor contradictions were not so material as the major elements were proved. He relied on the case of WOOLNGTON V.DPP (1935) AC 462.

43. The defence counsel on the other hand submitted strongly that the charges against the accused had not been met. He said that it was incumbent upon the prosecution to prove the case against the accused. He said that the photographic evidence did not indicate any blood at the scene nor on the tractor reg. no. KTCD 929Q.

44. He submitted that there was no malice aforethought proved against the accused. In the situation at hand it was possible that the deceased may have been hit by another tractor. He said that there was bad motive on the part of the state as exemplified by the fact that it took one year to charge the accused.

45. He relied on the case of REPUBLIC VERSES ANDREW MUECHE OMWENGA (2009) eKLR and REPUBLIC VERSES ISMAEL HUSSEIN IBRAHIM (2018) eKLR.

46. The cause of deceased death was well concluded by the post-mortem report produced by Dr. Okumu Moses. The nature of the injuries was as a result of the traffic cause and in this case the tractor and the trailer which has featured through all these proceedings.

47. Secondly it is not in dispute that the incident occurred in the farm belonging to pw8 who had contracted both West Kenya sugar as well as Nzoia sugar companies. Although it was evident that there was rivalry between the two companies the issue pitted their employees who apparently took up the matter on behalf of their masters or employers.

48. Beside that the employees of Nzoia were already on the farm harvesting the cane. The officers from West Kenya later came and it is apparent that they did not come for peace. If they were peaceful there would not have been any fight.

49. The tractors that came to the farm belonged to West Kenya not Nzoia. All the prosecution witnesses generally agree that the staff of West Kenya arrived aboard the tractors, land cruiser as well as Canter vehicles. They were armed and they began pelting them with stones as they carried on with the harvesting.

50. The tractor that caused deceased death belonged to west Kenya sugar. All the witness agree that they began chasing them from the farm and they parted ways some including the deceased rushed towards the already harvested maize field. Pw1 in particular was close to the deceased who was lame and could not escape the tractor which hit and crushed him underneath.

51. Pw3 as well was with the deceased and he witnessed the incident. He said that it hit him from behind meaning that he was being chased.

52. Although there were three tractors and a land cruiser vehicle the only tractor which has been zeroed in was that driven by the accused reg. no. KTCP 939Q. In his defence the accused did not deny that he was the driver of the said tractor. There was no evidence that the other tractors caused the incident despite being at the farm.

53. The court does not agree with the submission by the defence counsel that the incident was so chaotic that anything would have happened as the accused was fleeing and saving his life. In other words, the incident in my view was not accidental but premeditated.

54. There was evidence adduced by the prosecution indicating that first of all the tractors did not follow the road but were driven through the barbed wire fence and not through a known gate. Secondly that there was a road measuring about 8 meters which was between the sugar farm and the maize farm. The accused chose not to use the road but instead crossed the maize field in hot pursued of Nzoia employees who unfortunately included the deceased who by virtue of being physically challenged could not run fast like the rest.

55. It is also not true that the accused tractor was already heavy with loaded cane as it is evident that the fracas ensued as soon as the tractors arrived and were being escorted by the land cruiser which had people as well pelting stones and other projectiles to the cane cutters. In essence he was not escaping from the scene.

56. The evidence by Dw2 was an attempt to exonerate the accused and by extension West Kenya management from liability. Had they not chose to attack the Nzoia cutters seeing that the owner had already given the cane to Nzoia the unfortunate incident would not have occurred.

57. Contrary to the perspective of the defence counsel this court does not see any provocation on the part of the Nzoia company employees and for that matter the deceased. It is clear that the whole issue was premeditated and by extension the management of West Kenya should take up the responsibility for the violence. Nothing was difficult from taking the civil route and have them compensated by Mr Wekesa.

58. The accused unfortunately felt into the trap of sugar wars. He had control of the tractor. There was no iota of evidence that he was injured or at all. Dw2 said that the accused was pelted with stones and rungus, but there was no evidence at all. The accused said that he went to the factory using a boda boda to inform the management what had occurred. He did not produce any medical document.

59. The three now accepted ingredients of murder which ought to be proved are the death of the deceased and the cause of death, that the accused committed the unlawful act which caused the death of the deceased and that the accused had malice aforethought.

60. Clearly there was malice on the part of the accused. The malice was actuated by him chasing the Nzoia workers using the tractor he was driving not necessarily defend himself but to harm them. Unfortunately, in the rage he was in on behalf of his employer he knocked down and killed the deceased who could not run faster because of his physical inability.

61. He was therefore conscious that his action was dangerous and would cause injury and or death. The action he undertook of chasing the deceased was unlawful in the first place.

62. For the foregoing reasons this court is satisfied that the prosecution has proved its case beyond any shadow of doubt. It was shameful and tragic for the accused to fight on behalf of his employer.

63. The accused is therefore found guilty of killing the accused herein under the provisions of Section 203 of the Penal Code.

64. Orders accordingly.

Delivered, Signed and Dated at Kitale this 11th day of December 2020.

H K CHEMITEI

JUDGE