[2020] KEHC 1375 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL CASE NO. 17 OF 2017

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

VERSUS

BARNABA ETYANG JEREMIAH ......ACCUSED

JUDGMENT

1. Barnaba Etyang Jeremiah 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 25th day of June 2013, at Akibui village, Chemasiri sub location in Teso North sub County of Busia County, murdered Ishmael Idoyo Opilo.

3. Mushrooms are considered a delicacy by many communities. Some grow naturally while others are cultivated commercially. The prosecution contended that the mushrooms in this case were growing naturally on an anthill. The accused alleged that the deceased had picked them from his garden. He beat him and inflicted fatal injuries.

4. The accused contended that he saw the deceased and his two brothers picking his mushrooms that he was going to water. On seeing him, they ran away. He gave chase and caught up with the deceased. When he took him to his father, the deceased’s father advised him to chastise him alleging that he was tired of receiving similar reports against the deceased. He therefore caned him once on the buttocks and set him free. He later learnt that the deceased had died.

5. The issues for determination are:

a. Whether the accused caned the deceased on the buttocks or elsewhere as contended by the prosecution;

b. Whether the fatal injuries the deceased sustained were caused by the accused ; and

c. Whether the offence of murder was established.

6. There are two competing versions of how the accused dealt with the deceased after he had apprehended him on allegations of stealing his mushrooms. It does not matter whether the mushrooms were growing naturally or whether the accused had cultivated them as he implied in his defence. There is no doubt that the mushrooms were growing on the land of the accused.

7. Rose Idoyo Nekesa (PW1) is the mother of the deceased. Her evidence was that while the deceased and Masage were erecting a house, the accused went and enquired from them who had picked his mushrooms. When the deceased told him that probably it was the children who had gone to school, he asked the deceased to follow him. The deceased complied. While going towards the anthill where the mushrooms were growing, she saw the accused beat the deceased on the head and on the neck with a stick.

8. Mercy Idoyo Opilo (PW3) is another eye witness. Her evidence is that she saw the accused walking with the deceased and Masage and on reaching at the gate of Alfred Oteba, the accused hit the deceased on the head and then tied him with a rope. After the deceased was tied he fell down and the accused beat him all over his body. He was ordered by the accused to stand up and when he managed to, the accused pulled him to the shamba where he fell down and did not stand up.

9. The evidence by these two eye witnesses certainly cannot be true for these are two different versions. Had the prosecution called Masage the brother of the deceased, the court could have established the correct version of the events. Both the prosecution and the defence agree that he (Masage) was present. The evidence of Mercy Idoyo Opilo (PW3) was that Masage who was 17 years old at the time of hearing, was at home. No explanation was given as to why he was not called yet he was a key witness. The Court of Appeal in the case of Bukenya vs. 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.

Failure to call Masage can only lead to the inference that the prosecution failed to call him deliberately.

10. According to the accused, he found the deceased, Masage Idoyo and Opilo picking his mushrooms. His version is therefore believable.

11. Dr. Kahindi Charo (PW2) testified that the cause of death of the deceased herein was intra-cranial haemorrhage secondary to severe head injury. He said the injury may have been caused by either a sharp or blunt object. This therefore contradicts the contention of the accused that he only caned him once on the buttocks.

12. I therefore find that the deceased died from the injuries that were inflicted on him by the accused.

13. In order to found conviction on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law dictionary, 10th Edition malice aforethought is defined as:

The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievousbodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).

14. Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:

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.

15. In the instant case, the deceased was found in the act of stealing. I therefore, find that the prosecution has not proved the offence of murder against the accused. However, the prosecution has proved beyond any reasonable doubt the lesser offence of manslaughter. I accordingly reduce the charge of murder to that of manslaughter. I acquit the accused of the charge of murder. I find him guilty and convict him of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

DELIVEREDandSIGNEDatBUSIAthis1st dayof December, 2020

KIARIE WAWERU KIARIE

JUDGE