[2022] KEHC 1050 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 30 OF 2015

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

VERSUS

CLEOPHAS WEKESA WAFULA......................................................................ACCUSED

J U D G M E N T

The accused CLEOPHAS WEKESA WAFULA is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

Particulars of the offence are that CLEOPHAS WEKESA WAFULA on the 13th day of September, 2015 at Silila village within Bungoma County murdered TOM MUKHWANA MAMILI.

The case for the prosecution is that on 13. 9.2015 PW1 Dismas Wanyonyi Isigure was at his home drinking busaa which had been prepared by his wife Elizabeth. He was with Rogers Bwinya, Dennis Kennedy, Shadrack Wamalwa and the deceased Tom Mukhwana Mamili. While there, he saw the accused come hurriedly with his wife while armed with a stick. The accused then approached the deceased and asked him. Do you know you stabbed me with a knife?” accused told the deceased to stand up. Accused and deceased started fighting. Kennedy and Dennis hit the deceased with fists. The accused, Kennedy and Dennis pulled deceased outside the homestead and continued beating him. He was then informed that accused had killed deceased.

PW2 Elizabeth Kokoi the wife of PW1 Dismas at 10 a.m. on the material date was selling busaa at her home. He then saw the accused come with a whip. The accused was with his wife and she saw the wife hit deceased with a s tone on the head. Accused, Kennedy and David carried the deceased away and later deceased was found dead in a bush. She stated it is accused Kennedy, David and accused’s wife who beat the deceased.

PW3 Wilbroda Nanjala Buyemba the 3rd wife of the deceased was in church when she was called by bodaboda riders who took her to the scene. She found the deceased lying down in a farm with stab wound injuries on the abdomen and a stone near where his head was lying. The assistant chief who was present called police officers.

PW9 John Paul Wanyonyi testified that on 13. 9.2015, he was at his home where his mother had prepared busaa. He was with Shadrack Wamalwa, Kennedy Makunya, David Wamalwa Wabwoba and Charles Simiyu while there he saw the accused Boy (accused) come with his wife while armed with a whip and stick. He then started beating the deceased on the head. Accused’s wife took a stone and hit the deceased. He went to separate them. He did not manage to do so. He saw accused, his wife, Kennedy and David still assaulting the deceased.

On being cross-examined by Were for the accused, he confirmed that the deceased was attacked by 4 people who included Boyi (accused), his wife who used stones, and Kennedy who hit the deceased with a kick on the back.

PW10 Susan Wanyonyi testified that on 13. 9.2015 she saw Boyi (accused) his wife and Kenneth at their home. She saw Kenneth hit the deceased with a kick on the ribs, Boyi (accused) hit the deceased on the head with a whip stick and accused’s wife hit the deceased on the head with a stone. They then dragged him out of the homestead to the farm of Madam Luhanya where they continued beating him. Later she received information that deceased died.

On being cross-examined by Were for accused she stated that she saw accused hit the deceased on the head with a whip on the stick part.

PW 7 NO. 63988 Copl Victor Jumamosi took over the file from Copl Njiru of Kimilili police station. He conducted further investigations and received a stone said to have been used in the murder. He kept it and produced it as exhibit 1. The accused who was a suspect had escaped from his area but later the wife of deceased saw him at Bungoma and was arrested by members of public who handed him over to police.

PW8 Dr. Haron Ombangi, produced a post moterm report prepared by Dr. Raymond Damba who performed the post-mortem. He found the deceased has massive abrasion on frontal side of the head, blunt injury that affected both lungs and injury to the head. He formed opinion hat cause of death was due to head and lung injury. He produced the post mortem report Exh. 3.

The accused upon being placed on his defence elected to give sworn defence. In his defence he stated that he did not know the deceased. He testified that on 13. 9.2015 he was at Chepkube and was not at Silisi village on that day. He stated that he was later arrested by his sister Night Morris who took him to police. In cross-examination he denied knowing any of the prosecution witnesses who testified in this case.

Mr. Were for the accused filed written submission. He submitted that from the evidence the accused only hit the deceased using the wooden side of the whip. He submitted that the whip was not produced as exhibit and it is not clear whether it is the one which caused the fatal injuries. He submitted that PW1, PW2 and PW3 were not present when the deceased was being killed because the fight started at a homestead and death occurred 100-200 meters along a path.

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 any unlawful act or omission is guilty of murder.”

The ingredients of the offence which the prosecution must prove beyond reasonable doubt are:

a) The fact and cause of death

b) The unlawful act or omission that caused the death

c) That it is accused who occasion the unlawful act or omission or inflicted the injuries that caused the death

d) That the accused had the intention of causing death or malice aforethought.

That the deceased died is not contested. Indeed PW8 Dr. Haron Ombangi who produced the post mortem report prepared by Dr. Raymond Damba testified that the deceased sustained injuries on head and both lungs as a result of trauma. He issued death certificate NO. 0021274. The witness therefore confirmed the fact of death and also that the death was caused by unlawful act of blunt force trauma on the head and lungs.

On who inflicted the injuries on the deceased from which he died the prosecution called witnesses who testified that they saw accused with others not before court assaulting the deceased on the material day. The accused in his defence testified that he did not commit the offence as he was not at the place and time where the offence occurred. He testified that on the material day and time he was at Chepkube. His defence is therefore an alibi defence where he is stating that he was not at the scene but at another place and therefore it is not practicable that he can be at two places at same time. Once an accused raises an alibi defence, he does not bear any burden of prove the same. The prosecution can however displace the alibi defence by placing him at the scene where the offence occurred at the time it was alleged to have occurred.

The prosecution called PW1 Dismas Wanyonyi Isogure, who testified that on the material day he as at his home with other persons and deceased when accused came with his wife and started assaulting deceased on the allegation that deceased had stabbed the accused with a knife.

PW2 Elizabeth Kakai the wife of PW1 Dismas, in whose home the busaa was being drunk testified that while there with deceased and others, accused came with his wife and started assaulting the deceased. The others who were there joined in the fracas and accused, Kennedy and David carried the deceased away from the homestead.

PW9 John Paul Wanyonyi who was also at the home where busaa was being drunk. He was with David Wamalwa, Kennedy Makaya, Charles Simiyu and Wabobwa and the deceased. He then saw accused come with his wife and they started attacking the deceased. He saw accused hit the deceased with a stick with a whip. He tried to separate them but was unable to stop them assaulting deceased, later he was informed that deceased had died.

PW10 Susan Wanyonyi who was also at the home of PW1 who is her father saw accused come with his wife while carrying a whip with a stick edge and hit the deceased using the stick end of the whip. Accused with others then dragged him out of the compound to the farm of Madam Luhanya where they continued beating him.

These prosecution witnesses Dismas (PW1) Elizabeth (PW2) John (PW9) and Susan (PW10) all testified that they saw the accused and others assaulting the deceased. The incident occurred during the day at around 10 a.m. and the witnesses know accused well and his wife. They knew him not only by appearance but also his nick name of Boyi. They are people known to the accused. I therefore find that the accused’s contention that he does not know any of the witnesses and the deceased is not true.

The accused in his defence states that he was not at the scene as he was at Chepkube and not at Silila village where the offence occurred. These witnesses PW1, PW2, PW9 and PW10 all testified to not only being present at the scene but also indicated how he was armed and where he hit the deceased. These witness’s evidence placed the accused at the scene and effectively displaced the accused’s alibi defence. I am therefore satisfied that it is accused and others not before court who inflicted the injuries on the deceased from which he died.

In a charge of murder, the prosecution must prove that in committing the unlawful act of omission the accused had the necessary mens rea, or malice aforethought. Malice aforethought is defined in Section 206 Penal Code as:

Section 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.

From the Medical evidence the deceased was assaulted and sustained injuries on the head and chest/abdomen which led to injury on both lungs. These parts of the body targeted by accused were vulnerable parts and the injury was intended to cause grievous harm or death as it occurred in this case.

I therefore find that the prosecution has proved that accused did possess the necessary intention to cause death of deceased.

In the result, after considering all the evidence in totality, I am satisfied that the prosecution has proved a charge of murder against the accused.

I therefore find the accused Cleophas Wekesa Wafula guilty of the offence of murder contrary to Section 203 as read with Section 204 Penal Code and convict him accordingly.

DATED AT BUNGOMA THIS 28TH DAY OF MARCH 2022

S.N RIECHI

JUDGE