[2022] KEHC 10800 (KLR)

Republic v Barasa (Criminal Case 34 of 2020) [2022] KEHC 10800 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10800 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 34 of 2020

SN Riechi, J

May 6, 2022

Between

Republic

Prosecutor

and

David Chacha Barasa

Accused

Judgment

1. The accused David Chacha Barasa is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that David Chacha Barasa on the 22nd day of July, 2020 at Kaprok village in Cheptais location, Cheptais Sub-location in Bungoma county murdered Johnstone Wekesa Kituyi.

3. The case for the prosecution is that on 22. 7.2020 PW1 Dennis Kibet Kirui was at his home when David Barasa the accused came and called him together with Dennis Barasa and informed them there was a person stealing the accused’s maize in his farm. He instructed the witness to pass on one side of the farm while accused passed the other side. Dennis then heard screams from the other side of the farm. He ran there and found the deceased having been cut severally and was bleeding. He screamed and many people came. On checking they found the person who had been cut is the deceased who was their neighbour. Besides him they saw a bag and a gunnybag which contained maize. He also noticed that the accused had been cut on the arm. They took the deceased to Cheptais Health Centre where he was treated and referred to Bungoma County Referral Hospital where he died the next day while undergoing treatment.

4. On being cross examined by Onkangi for accused he stated that while he did not see who cut the deceased, he found accused also had injuries on the arm. He stated that deceased had stolen the maize in the gunny bag.

5. PW3 DW, a minor aged 14 years old and a pupil [Particulars withheld] Primary school in std 3 testified that on the material day he was at home with his mother E and brother M when they heard noise from the maize farm. He heard accused saying there was a thief. They ran there and found deceased had been cut severally. They found the thief was the deceased who was a neighbour. Deceased still alive and speaking. He said it is accused who had cut him. He noticed accused had a panga and had sustained injuries on right hand.

6. PW4 Isaac Chebet Changei who is a nyumba kumi official was in his house when he was informed by the village elder Bramwel Chemaket that accused had assaulted the deceased. He went to the scene and found deceased being taken to hospital. He observed the deceased and saw he had 3 cut wounds on the arm and 2 cut wounds on the head. He found David Wangila with a panaga which was blood stained which as handed over to the village elder.

7. On being cross-examined by Mr. Onkangi for accused, he stated that he saw the alleged stolen maize with DW. He confirmed deceased had a medical booklet showing he was treated on 26. 7.2020.

8. PW7 Bramwel Chemaket the village elder when he heard screams he asked PW4 Isaac Kibet to go and check. He then went to the scene where he found a person had been arrested in a maize farm. He found the deceased who was still alive and was sting he was cut by accused. He saw a panga which was blood stained and the next day they brought the maize which was allegedly being stolen. He later handed the panga and maize to police.

9. PW6 Ayub Katoo Ngeiywa a village elder received a telephone call from accused who informed him that he had arrested a thief in his maize farm. He went there and found accused and deceased who was still alive. He arranged for a motor cycle and deceased was taken to a dispensary and advised him to take deceased to Cheptais District Hospital together with accused. They were referred to Bungoma Referral where deceased died while undergoing treatment. He noticed that accused had injury on his left hand.

10. PW8 No. 77098 Copl Geofrey Too the Investigating Officer received information of a murder. He went to Kanganga police post where he found accused and his father who made a report that he had found deceased stealing maize and cut him. He recorded witness statement and visited the scene. He received the maize alleged to have been stolen which he produced as Exh.2.

11. PW2 Dr. Haron Ombongi who performed the post mortem on the body of the deceased found that he had a deep cut wound base of skull, right shoulder with fracture on left clavicle. He formed the opinion that the cause of death was due to head injury as a result of assault. He filled the post mortem form which he produced as Exh.1. He stated that the probable weapon causing injury as a sharp object.

12. The accused gave sworn evidence upon being put on his defence. He testified that on 22. 7.2020 at 9 p.m. he was at his home reading when DW came and informed him there was a person in their maize farm. He went there and found a person in their farm with several cut wounds. Her raised an alarm and people came and they took the person to Paradise Medical Centre where they were advised to take him to Cheptais district hospital and was referred to Bungoma hospital, where he was admitted. All this time the accused was with the deceased. Deceased died while undergoing treatment. Accused reported the matter to police where he was later arrested and charged with present offence.

13. Upon cross examination by M/s Mukhangu for state, he stated he as 16 years old then and confirmed that on the material day he was with Dennis Kibet (PW1) and that accused reached where deceased was before Kibet.

14. The accused is charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides.“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

15. The ingredients of the offence of murder as per the provisions of Section 203 of the Penal Code which the prosecution must prove beyond reasonable doubt are:a)The fact and cause of death of the deceased.b)The unlawful act or omission causing death.c)That in causing death the accused committed it with malice aforethought.d)That it is the accused who committed the unlawful act or inflicted injuries on deceased.

16. PW2 Dr. Haron Ombongi who performed the post mortem on body of the deceased testified that the deceased had a deep cut on base of skull; on the right shoulder extending to right shoulder, with fracture of left clavicle. He also sustained a linear skull fracture. He formed opinion that cause of death was due to head injury as a result of assault. He therefore confirmed the fact of death and the unlawful act casing death as assault, using a sharp object.

17. Who inflicted the several cut wounds on deceased from which he died?

18. PW1 Dennis Kibet Kirui testified that upon receipt of information that there was a person stealing maize in the farm, accused went ahead of them to check. They then heard screams. They went there and found deceased bleeding from cut wound injuries. He found the accused also present having been cut on the hand too. They found maize in a sack next to the deceased which the deceased had stolen. He and accused took the deceased to hospital.

19. PW3 DW testified that he heard the deceased say there was a thief at the farm. He went there and found the alleged thief had been cut severely. They alleged thief was saying he had not stolen anything and said it was accused who had cut him. He saw the accused was present at the scene and was armed with a panga. He noticed accused had injuries on his hand too.

20. PW5 Bramwel Chemaket a village elder heard screams and went to the scene. On arrival he found a thief had been apprehended and had injuries on the head, and was bleeding. The alleged thief who is now the deceased said it is accused who was present that had cut him.

21. Accused informed Bramwel that they had apprehended deceased while stealing maize. He saw a panga which was blood stained and next day the maize was brought to him and he handed this to police.

22. PW6 Ayub Katoo Ngeiywa was called by accused who told him that he had apprehended a thief at their maize farm. He went to the scene and found accused and deceased who had injuries. He arranged and together with accused took deceased to hospital. He also noticed that accused had an injury on his hand.

23. The accused in his defence stated that upon going to check on who was stealing the maize, he found the deceased having been cut severely. He denied that he cut the deceased. He however stated that it was true he was with Dennis (PW1) on that night. He also denied the he was injured on the arm in the process. The prosecution witnesses PW1 Dennis Kibet, PW3 DW, PW4 Isaac Kibet all testified that the accused went to where a person was allegedly stealing maize. When they arrive they found the deceased with injuries on the head and accused present at the scene with a panga which was blood stained. They all noticed accused too had injuries on the arm and deceased who as still able to speak stated that it was accused who had cut him. The accused upon realizing that the person he had cut was the deceased who was their neighbour took him to hospital.

24. From the evidence tendered and the accused’s defence who admits to having been at the scene and him calling PW6 Ayub Katoo informing him that he had apprehended a thief stealing maize and seeking facilitation to take deceased to hospital all establish that it is accused and no one else who assaulted the deceased, which fact is confirmed by what the deceased told the witness before he died.

25. I am therefore satisfied that it is accused who inflicted the injuries on the deceased from which he died.

26. From the evidence it is not in disputed that the deceased was in the farm of the accused’s parents and had embarked on stealing maize some which were found at the scene. The accused who was tracking the thief found deceased and inflicted injuries on him from which he died. The circumstance of the offence and under which the accused inflicted injuries on deceased point irresistibly to being committed under provocation. Section 208 Penal Code defines provocation as:Section 208.

“1)The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.2)When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.3)A lawful act is not provocation to any person for an assault.4)An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.5)An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality. 27In a charge of murder extreme provocation is a partial defence and the accused will be found guilty of manslaughter instead of murder.Section 207 of the Penal Code provides:“207. When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only."

28. Under Section 207 a person charged of murder will be found guilty of manslaughter if:(a)The act causing death was done in extreme provocation.(b)The act was done in response to conduct toward the accused.(c)The deceased’s conduct was a serious indictable offence.(d)The conduct caused accused to lose self-control.(e)Objective test that the conduct of the deceased would have caused on ordinary person to lose self control to the extend of intending to kill or inflict grievous bodily harm to the deceased.

29. The rationale behind the defence of provocation is that a person moral culpability is reduced when they have lost self control in response to provocative conduct. A conviction for manslaughter rather than murder is more reflective of the level of blameworthiness in this situation.

30. After considering all the evidence I find that the accused committed the offence under provocation. I therefore by virtue of Section 207 Penal Code find accused David Chacha Barasa guilty of the offence of manslaughter contrary to section 202 as read with Section 205 of the Penal Code and convict him accordingly.

DATED AT BUNGOMA THIS 6TH DAY OF MAY, 2022S.N RIECHIJUDGE