[2017] KEHC 2868 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRC NO. 45 OF 2015

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

VERSUS

CHARLES OTIENO AJINJA......................................ACCUSED

JUDGMENT

The accused is charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

The Information states that on 26th September 2013 at Kango Sub-location, Muhoroni Sub-County within Kisumu County he murdered Victor Ouma Loko, deceased.

He pleaded not guilty to the charge.

The prosecution called a total of five witnesses.

The court heard that Victor Ouma, the deceased, and the accused in this case were friends and had no differences between them. However, on 20th September 2013 the deceased is said to have gone to the home of the accused, a chang'aa brewer, to partake of the brew. The accused was allegedly away at the time. Upon his return to the house a disagreement followed by a fight arose between him and the deceased concerning payment for the chang'aa the deceased had consumed. The deceased sustained injuries. According to Richard Otieno Odie (PW1) the area village elder, he was called concerning the incident and when he went to the scene he found the deceased lying a few meters from the house of the accused. The deceased had a cut on the left hand and the left side of his body was swollen. With the help of other villagers and the deceased's step mother (PW3) they transported the deceased to the road using a wheelbarrow and from there to Ahero Health Center using a tractor. He was treated and discharged. He did not improve and so the accused is alleged to have looked for a traditional healer (herbalist) who started treating him at home. This did not help and a week later the deceased died at Chiga St. Elizabeth Hospital where he had allegedly been taken by the accused. The matter was reported to the police who went and removed the body to Jaramogi Oginga Odinga Teaching and Referral Hospital Mortuary. The accused is said to have fled the area until 20th September 2015 when he was arrested.

Postmortem on the body of the deceased was performed at the New Nyanza Hospital now Jaramogi Oginga Odinga Teaching and Referral Hospital. According to the report the deceased had suffered a six centimeter cut wound on the frontal area of his forehead, a cut wound on the back of the right shoulder, a fracture of the 11th rib with the piece found in the covering of the spleen and the spleen was grossly enlarged. The transverse colon was perforated and there was cerus fluid in the spleen. The cause of death was opined to be internal bleeding and secondary peutonitis following perforated colon, following blunt abdominal trauma.

In his testimony the accused confirmed that the deceased was his friend. He however denied having been involved in an altercation with the deceased on the material day and stated that on 20th September 2013 he was in fact at a place called Awendo where he was involved in the construction of Obama Dispensary. He stated that indeed his grandfather Joseph Okaka had called him on 9th September 2013 wanting to know his whereabouts and he told him he was in Awendo. He stated that he was shocked when his grandfather said that he, accused, had quarreled with another man. He therefore went home but when he asked where Ouma, the deceased, was the deceased's step mother said he used to sleep at a place called Kadede. He went there and found the deceased sleeping in one of the houses. He demanded to know why the deceased was ruining his reputation and the deceased allegedly told him it was Charles Kiriko he had fought with. He even requested to be taken to hospital. The accused bought him milk and bread then went to the chemist where he got someone to treat him. Three days later he noticed the deceased's health was deteriorating and took him to Chiga Hospital. After two days he run out of cash and he went back to Awendo. A few days later he heard the deceased had died. He states that he was shocked when he was charged with this offence. He implored this court to forgive him saying that his only intention was to assist the deceased. He explained that once he went to Awendo he did not go back because it is far and his wages were being paid monthly. He contended that the deceased only complained of abdominal pain and did not have injuries inflicted with a panga. He alleged that the deceased told him he had fought with another man.

The issues for determination in this case are first, whether the death of Victor Ouma, the deceased, was caused by an unlawful act of the accused and secondly if it was, whether it was of malice aforethought.

Having evaluated the evidence by both sides I am satisfied that whereas there is no direct evidence there is circumstantial evidence to show that on the material day the accused in this case inflicted upon the deceased injuries which subsequently led to his death. According to village elder Richard Otieno Odie (PW1) the information he received was that the accused fought the deceased because of payment of some chang'aa and sure enough when he went to the scene he found the deceased lying a few meters from the home of the accused. The deceased's step mother (PW2) testified that she got a similar report and when she went to the scene the deceased told her he had been assaulted by the accused. This evidence coupled with the accused's conduct immediately after the incident confirms that he indeed assaulted the deceased. He confirmed that he got a “doctor/chemist” to treat the deceased and that he left the area and did not return until he was arrested. The deceased's mother had earlier told this court that he got a traditional healer to treat the deceased when he realised his health was deteriorating. I am not convinced that he was merely acting the part of a good samaritan. To the contrary I find that he felt obliged to get the deceased help because he was his friend and was the author of his ill health. Although he alleges to have been at Awendo when this incident occurred thereby raising an alibi it came too late in his defence as to be true. Throughout his cross-examination he did not raise it. Indeed his defence did not add up because whereas he raised the issue of his grandfather calling him to support his alibi that call seems to have come much, much earlier than the date it is alleged he committed this offence. He also confirms fleeing the area. The injuries reported in the postmortem form are very consistent with the testimonies of PW1 and PW2 concerning the injuries they observed on the deceased. The accused's allegation that the deceased told him he had fought with one Charles Kiriko was not corroborated. The cause of the deceased's death is consistent with the injuries inflicted by the accused. It is said that the accused beat the deceased for not paying for the chang'aa he had consumed.

The assault was unlawful. In the premises I am satisfied beyond reasonable doubt that the accused caused the death of the deceased through an unlawful act.

As to whether there was malice aforethought this court heard that the accused and the deceased were good friends and that there were no differences between them. There is no evidence that the accused had any intention to kill the deceased or to occasion him grievous harm. Neither is there evidence that he had knowledge that the injuries he inflicted could lead to the death of the deceased. In the premises I reduce the charge to Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code and convict him accordingly.

Signed, dated and delivered at Kisumu this 5th day of October 2017

E. N. MAINA

JUDGE

In the presence of:-

Miss Kimani for the State

Mrs Onyango for the Accused

Accused Person

Court Assistant – Serah Sidera