[2022] KEHC 1933 (KLR)

REPUBLIF OE KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

HCR NO. 32 OF 2020

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

VERSEUS

DAVID SUMBA NAMODI.....................................................ACCUSED

J U D G M E N T

The accused DAVID SUMBA NAMODI is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the offence are that on the 15th day of July, 2020 at Bituyu area, Kimilili Sub-county within Bungoma County murdered TAFROSA NAMODI.

The Prosecution case is that the accused David Sumba Namodi is the biological son of the deceased TAFROSA NAMODI. on 15. 7.2020PW1 Moses Sigana Nomadithe brother of accused and son of the deceased was at deceased’s home at 1 p.m. together with the accused and deceased. The accused was in the main house when deceased who was preparing lunch went into the main house to fetch maize flour. Moses then heard deceased screaming in the main house. He ran there and saw accused running out of the house. On going inside the house he found deceased with injuries on the right side of the head. The deceased told him the accused had injured her. He took her out and made arrangements with PW1 Simon Makasi a boda boda rider and they took her to Ndalu Health case. She was referred to Kitale Hospital and then Moi Teaching and Referral Hospital but died on the way to Eldoret.

On being cross-examined by Kundu for the accused, he testified that accused used a bottle to hit deceased. He also confirmed he was at home with accused and deceased when the incident happened and that accused usually smokes bhang.

PW3 Joseph Namodi the husband of deceased and father of accused testified that on 15. 2.2020 at 12 p.m. he left accused, deceased and Moses at his home and went away. After 15 minutes PW2 Moses called him and informed him that accused had injured the deceased. He directed them to take her to hospital. He went to Ndalu Health centre where the doctor referred them to Kitale hospital where they were referred to Moi Teaching and Referral hospital but she died on the way to Eldoret.

PW5 Caleb Aluda Minaiva, the uncle of the accused on 15. 7.2020 at 9 p.m. received information that accused had hit deceased who had died while being taken to hospital. He visited the home of accused. They met him on the way and he informed them the mother was sick and had been taken to hospital. He told them there were people looking for him. They took the accused to Ndalu police station where he as handed over to PW4 PC Raymond Chelimo. PW4 PC Raymond notice accused had injuries. He took him to Ndalu Health Centre where he was treated and then taken to Kimilili police station.

PW8 No. 70715 Segt Joseph Gatima the Investigating Officer visited the scene and recovered a broken cup which was used to hit the deceased which he produced as Ex.2 and a fanta bottle Exh.3. He testified that accused had been charged earlier in Sirisia SRM CR 221/2020 for offence of crating disturbance and convicted. The complainant that case was the father.

PW6 Dr. Alex Wanyonyi who performed the post mortem on the body of deceased found there was swelling of scalp muscle on the brain and bleeding in the brain. He formed opinion that cause of death was due to massive haemorage due to blunt head injury. The accused was then later charged with present offence.

The accused on being placed on his defence gave unsworn evidence and did not call any witness. He testified that on the material day he was at home with his mother the deceased, his father (PW3) and brother Moses (PW2). He left the home at 12 p.m. to visit a friend and he came back at 3 p.m. when he received information deceased had been taken to hospital. His father became hostile to him and he left the home and went to his uncle. The next day while on the way to his uncles home he met 2 uncles who apprehend him and took him to Ndalu police station. He denied that he assaulted the deceased.

The accused is charged with the offence of murder contrary to Section 203 as read with Section 204 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 elements of the offence of murder 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.

PW6 Dr. Alex Wanyonyi Barasa who performed the post moterm on the body of the deceased testified that on examination he found bleeding from the right ear, there was a swelling in skull muscle and bleeding into the brain on the right side. He formed opinion that the cause of death was massive bleeding due to blunt force trauma caused by a blunt object.

This witness therefore confirmed the fact of death of deceased and that the cause of death was due to injuries inflicted on deceased using a blunt object.

Who inflicted the injures form which the deceased died?

PW2 Moses Sigana Namodi the brother of the accused and son of the deceased testified:

“ Remember on 15. 7.2020 at 1 p.m. I was at home. I was with deceased and accused. Deceased was preparing lunch. She went to the main house to take flour. The accused was in the main house. I heard screams from deceased saying he has injured me. I ran there and saw accused running out with a fanta bottle. She said accused had injured her. I also saw a broken cup. I saw she had injuries on the right side of head. I assisted her to come out and made her lay down. I saw the spot she was hit swelling. She was speaking. She said accused had injured him. I called Dickson a neighbor. I called a boda boda PW1 who came. We took her to hospital at Ndalu.”

This witness testimony is clear that it is accused who hit the deceased with a bottle and cup on the head. This incident happened in the main house where the accused and deceased were. The accused then ran away and the deceased who was able to speak told him it is accused who had hit her.

The accused in his defence admits to having been present at the home but had left only to be told that deceased had become sick. From the evidence of PW2 I find that the incident occurred during the day and that the accused and deceased were the only people in the house. That the deceased screamed and accused ran away. On going into the house PW2 found deceased with injuries and she said it is accused who had hit her. I am satisfied from the evidence that it is accused who inflicted the injuries on the deceased from which she died.

I therefore find that it is accused who committed the unlawful act of hitting the deceased with a blunt object on the head the by inflicting the injuries from which she died.

The last element of the offence which the prosecution must prove is that the accused possessed the necessary intention or malice aforethought when he committed the offence. Section 306 defines malice aforethought to mean.

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.

The accused in the case inflicted the injuries on the head of the deceased, a vulnerable part of the body using a bottle and cup a blunt object which he knew could cause serious injury or death as it happened in this case. This demonstrated the possession of a necessary intention to kill. I am therefore satisfied that the prosecution has established that the accused had the necessary intention to kill or cause grievous injury. I find malice aforethought proved.

Having considered the whole evidence, I am satisfied that the prosecution has proved a charge of murder against the accused person. I therefore find accused David Sumba Namodi guilty of the offence of murder contrary to Section 203 as read with Section. 204 of the Penal Code and convict him accordingly.

DATED, SIGNED AND DELIVERED AT BUNGOMA ON THIS 1ST DAY OF FEBRUARY, 2022.

S.N RIECHI

JUDGE