[2023] KEHC 24728 (KLR)

Republic v Barasa (Criminal Case E024 of 2021) [2023] KEHC 24728 (KLR) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24728 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E024 of 2021

DK Kemei, J

November 1, 2023

Between

Republic

Prosecutor

and

Dickson Masika Barasa

Accused

Ruling

1. The accused Dickson Masika Barasa was charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code. The particulars were that on the 14th day of June, 2021 at Sinoko ‘A’ village in Bumula Sub-county within Bungoma County, he murdered Martin Sifuna Shikuku.

2. The accused denied the charges and a trial commenced in which the prosecution called a total of nine witnesses in support of its case. The witnesses testified as follows;

3. Pw-1 Pauline Nafina Mbita testified that the deceased was her husband and that on 16/6/2021, her husband left home in the morning for construction site where he worked. That later in the evening at 8 pm, a neighbor alerted her that she had seen her husband lying by the wayside in a bad state. That she rushed to the scene with her father-in law. That the police later came and collected the body. That the deceased was bleeding from the upper part of the stomach.

4. On cross examination, she stated that she did not find any weapon at the scene, there were no blood stains.

5. PW-2 David Wafula Sisenda stated the deceased was the foreman at their place of work. That he was the first to arrive at the site then followed by others. That at about 9 am, the accused arrived and in an angry mood uttering words against the deceased. That since the number of workers had been cut, the accused was not happy that he had been left out. At some point, the accused pelted the deceased with a stone injuring him on the lower side of the eye but they managed to calm down the situation.

6. That at 5 pm, at the close of work, the deceased left with Geoffrey in search of local brew . that he later found them at Beatrice’s house together with the accused. That they drank up to about 6 pm when the accused left followed by the deceased about 30 minutes later. Later he hard some screams and on checking, he found the deceased had been stabbed.

7. On cross examination, he stated that the deceased and the appellant were not quarrelling when he met them taking brew. That he had not seen the accused armed with any weapon. That the accused was angry with the deceased over the reduction of workers at the site.

8. PW-3, Judith Nafula Wafula stated that there were workers constructing her son’s house, including the deceased. That the accused arrived and headed to where the others were. Later she saw the accused being escorted out of the compound on allegations he had assaulted the deceased. Later, the deceased went for treatment and in the evening, she gave the deceased money to pay his colleagues. Later he received a call that the deceased had been killed.

9. On cross examination, she stated that the accused was not working on that day as he had been laid off by the deceased the foreman on her son’s instructions.

10. PW-4 Abdalla Wanjala Mihanga stated that he heard screams while sleeping in his house. He checked and found the deceased’s body lying on the ground. The body was ferried by police and he went back to sleep. The following day, the accused’s father asked him to help search for the accused whereupon he traced him to the accused’s sister from where he found him.

11. On cross examination, he stated that he saw the deceased’s body but there were no blood stains.

12. PW-5 Vincent Wanga Makokha stated that he was working with both the accused and deceased in constructing barasa’s house. That on the fateful day, the accused arrived at 9 am and confronted the deceased asking him about what the deceased had told the accused’s wife. That the accused hit the deceased with a brick.

13. On cross examination, he stated that he did not accompany the deceased after work.

14. PW-6 Geoffrey Okumu stated that that the deceased was fellow mason and the accused was also a co-worker in the construction site. That on 13/6/2021, the deceased scaled down the workers. That on 14/6/2021, the accused arrived at work and confronted the deceased for leaving him out of work. The confrontation saw the deceased injured. Later that day after being paid, the parted ways and came to know of the deceased’s death later.

15. On cross examination, he stated that after work, he passed by a local drink den alongside David wafula sisenda.

16. PW-7 Beatrice Naliaka Remu stated that the deceased passed by her place early on the date of 14/6/2021 and his head was swollen. On inquiry, the deceased informed her that the deceased had assaulted him. Later that day, the accused came to the witness’ house and upon inquiry, the accused informed her that he would still assault him. When the deceased arrived, he bought a drink for the accused and they continued drinking until the accused left. The deceased followed him shortly thereafter. She later heard screams and upon checking, the deceased had been killed by the roadside.

17. On cross examination, she stated that the deceased was her first customer that day. That the deceased bought the accused a drink and didn’t know more about the differences between the accused and the deceased.

18. PW-8 Dr. Kosgey Eliud from Bungoma county referral hospital conducted a post mortem on the deceased body which was produced into evidence. According to him, the deceased died of cardio respiratory arrest due to massive hemothorax.

19. PW-9 No. 232704 CP Evans mwangi stated that he was part of the investigations into the incident which led to the arrest and arraignment of the deceased. That the accused was apprehended by members of the public.

20. Upon the close of the prosecution’s case, the court found the accused had a case to answer and put him on his defence. The accused elected to give a sworn statement.

21. The accused testified as DW-1 and his testimony was that he came to the construction site where he met other masons. That the deceased who was the foreman advised him to go home and when he sought to confirm the safety of his tools, the deceased resisted and a struggle ensued. That their colleagues separated them and he went home to attend to other chores. That later in the evening, he went for a drink at a local brew den and was joined by the deceased and other colleagues and the deceased even bought him drinks worth Kshs 50/-.

22. The accused denied any quarrel between him and the deceased at the local brew den. He stated that he left the den at 5. 45 pm and later while asleep at his home, he heard somebody calling his father’s name and on checking, the caller informed them that the deceased had been killed and found his body lying on the road. He killing the deceased.

23. On cross examination, he stated that he struggled with the deceased on 14/6/2021. He stated that he arrived at the brew den earlier than the deceased and also left early as he was drunk. That his home is about 300 metres from where they were drinking and about 400 metres from where the deceased was killed. That the deceased was a neighbor and they used the same route while going home.

24. DW-2Charles Mangura namangala stated that he was alerted around 9 pm by a neighbor. Upon answering, he went to the scene and found the deceased’s body at the roadside. That thereafter, he rushed to alert the clan chairman.

25. In cross examination, he stated that he was not with the accused during the day.

26. The parties also filed their written submissions. The same is on record.

Analysis and Determination. 27. The offence of murder is created by Section 203 of the penal code which provides that;Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

28. The Section establishes that the ingredients of the offence of murder are; that death occurred; that the accused was possessed of the malice aforethought and finally; that the accused caused such death.

29. From the evidence on record, there cannot be any doubt that death occurred. The evidence of virtually all the witnesses, was to the effect that the deceased’s body was found by the roadside lying dead. This set of evidence was confirmed by PW-8 who conducted the post mortem on the body.

30. The next element is that the perpetrator was possessed of malice aforethought. On this limb, section 206 of the Penal Code comes handy and defines malice aforethought as;“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

31. These provisions were further discussed in Joseph Kimani Njau v R (2014) eKLR, where the Court of Appeal held as follows:“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;i)The intention to cause death;ii)The intention to cause grievous bodily harm;iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”

32. The witness narrative particularly PW-8, Dr. Kosgey Eliud testified that the cause of death was a stab wound on the right haemothorax measuring approximately 2X 4 centimeters and he formed the opinion that the cause of death was cardiorespiratory arrest due to massive haemothorax.

33. By no means, the perpetrator must have known or ought to have known that deploying such a weapon that can cause such extensive damage was likely to cause death. Even though the weapon used in the murder was not recovered, the perpetrator’s intention can be seen from the injuries sustained and the fact the injury led to death.

34. The last issue for determination is the question whether it is the accused who caused the deceased’s death. It is common that from the testimony tendered in the trial court, none of the witnesses testified of seeing the accused stab and or fatally wound the deceased. The available evidence is from the deceased’s co-workers and those who saw the deceased and the accused drinking at Beatrice’s house.

35. In the circumstances, the evidence available is circumstantial evidence. The test of circumstantial evidence is the truthfulness and or the evidence taken as whole which shouldn’t give room for any possibility that may exonerate the accused from liability. The general test has been stated in Several cases but in Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, where the Court of Appeal stated as follows on reliance on circumstantial evidence:“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

36. In the case, the court proceeded and held as follows;“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Subject;iii)the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

37. The evidence adduced shows that the accused and the deceased had a physical confrontation during the day leading to the deceased seeking medical attention. The dispute as I find from the evidence relates to the fact that the deceased had terminated his services at the site. This limb off evidence is supported by the evidence of PW-2, PW-5 and PW-6 who testified that they all worked with both the deceased and the deceased at the site and the main reason for the confrontation was the issue of the accused being left out of work. PW-9, the investigating officer adduced evidence showing that deceased had made a formal report over the accused who had caused him injuries after visiting the health centre.

38. The above taken together with the evidence of PW-7, Beatrice Naliaka Remu goes to buttress the fact that it is indeed the accused who caused the deceased’s death as she had been with them shortly before the deceased was murdered. Her evidence was that the accused confided in her that despite the fact that he had earlier attacked the deceased, he would do so again to teach him a lesson for denying him work at the construction site.

39. The witnesses who were with both the accused and the deceased at PW-7’s home testified that the deceased first left the home and shortly followed by the accused. If the evidence of PW-7 is to be believed, more so the fact that the accused had not healed from the effects of being denied work and being attacked earlier that morning, there cannot be doubt that the accused still harboured revenge and or pain from the attack and the denial of work.

40. The accused’s defence has also been considered which is to the effect that the attack earlier in the day had to do with his tolls which had been used by the deceased. He stated that after the fight, he went back home and only got to know of the deceased’s death. He however admitted meeting his colleagues and the deceased at the drinking joint and that the deceased actually bought him a drink. He stated that he left for his home at 5. 45 pm and was woken up at night around 9. 30 pm with the news that the deceased had died.

41. DW-2 on his part did not testify about the events earlier that day, his was that he saw the accused heading home at 9. 00 pm. He did not testify that he had been with the accused through the day or that the accused was in another place other than PW-7’s home.

42. The totality of the above is that I find the accused to be responsible for the deceased’s death as the vents leading up to the deceased’s death puts the accused at the centre of controversy which was not well explained in his defence and is fit for rejection.

43. In the end, I find the accused guilty of the offence of murder contrary to section 203 and 204 of the Penal Code and proceed to convict accordingly.Orders accordingly.

DATED AND DELIVERED AT BUNGOMA THIS 1ST DAY OF NOVEMBER, 2023. D.KEMEIJUDGEIn the presence of :Dickson Masika Barasa AccusedLunani for AccusedOmondi for Prosecution