[2022] KEHC 12457 (KLR)

Republic v Elvis Otieno Mulama (Criminal Case 43 of 2018) [2022] KEHC 12457 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12457 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 43 of 2018

ACA Onginjo, J

June 16, 2022

Between

Republic

Prosecution

and

Elvis Otieno Mulama

Accused

Judgment

1. The Accused person is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the penal code.

2. The Particulars are that on 21st August 2018 at Ramzan village in Kiembeni, Kisauni Sub-county within Mombasa County he murdered Juma Ali Vugwe.

3. The prosecution called a total of ten (10) witnesses.

4. PW1 was Mohammed Somoebwana Stambul a neighbor to the deceased and Accused person. On 22nd August 2018 at 2. 00 am he was woken up at 2. am by another neighbor called Bakari. Bakari told him that they needed a vehicle to ferry the deceased to the hospital. He went and took his car keys and went to where deceased was lying. He was bleeding from his stomach though it was covered by a leso. While driving him to the hospital he passed by Kiembeni Police station and the saw his neighbor Amir who told him that they had taken Accused person to the police station. They drove to Coast General Hospital and put deceased on a stretcher but PW1 made the observation that he had already died. The doctor confirmed this.

5. PW2 was Ali Juma Vugwe, father to the deceased. He testified that the Accused person was known to him. On 21st August 2018 he received a call from a friend of the deceased informing him that that he had been stabbed with a knife and he was being taken to Cost Province General Hospital. On his way to the hospital he was informed that his son had passed away. He arrived at the hospital and confirmed this. The doctor performed the post mortem and he was given a copy of the report which he produced as MF1-1. He made the observations that the deceased body had a cut on the forehead and a cut across his stomach. He then went to kiembeni police station and recorded a statement.

6. PW3 was Amir Ali Hassan a neighbor to the deceased. On 21st August2018 he had screams at 2. 00 am in the morning. He went outside and he saw the ‘Mother of Bobo’ and the deceased’s Wife calling for help. The victim was lying on the ground, his intestines were visible. The Accused person was among those who had surrounded the victim and Accused person retorted, ‘Nishamararua.’ The mother to the Accused person and ‘Hassan’s Mother,’ were quarreling. Accused person’s mother retorted that it is Hassan’s Mother who has caused the Accused person to stab the deceased. He inquired from a young man at the scene what had happened and he was informed that he had been stabbed. He inquired whether it was Accused person who had done it but he at this point he noticed Accused person walking away from the scene. He followed him and inquired where he was heading to and Accused person said he was going to the Police station but he discouraged him as he feared that the mob justice would attack him and offered to drive him there. Accused person told him that the deceased had been having an affair with his wife and he had caught them when he returned from work unexpectedly and they exchanged folds. Deceased had left his wife’s Mama Hassan’s house and followed the Accused to where he resided. A fight ensued and it ended fatally. The Accused person also used a stone to hit the deceased persons head which was produced as MF1-P1. He took the Accused person to Kiembeni Police station where he surrendered. He recorded a statement on 24th August 2018. Accused person confessed to him that that he had been in a relationship with Mamake Hassan and he was providing for her and her children to the extent of not providing for his mother only to find out that she was cheating on him. He was angry and in a lot of pain when he stabbed the Deceased. PW3 testified that he was not aware that the two had been cohabitating.

7. PW4 was Ali Juma Bungwe brother to the victim. He was called on 20th August 2018 and informed that is brother had been stabbed. He went to the scene and his mother and deceased wife Hawa was at the scene. PW1 aided them to take the deceased to hospital but the deceased died on the way, he had a stab wound and protruding intestines He identified the body and a post mortem was done.

8. PW5 was PC Philip Njali No. 112419. On 21st August 2018 he was at the report desk at Kiembeni police station and PC Munene was Sentry personnel. At 2. 25 am four men including the Accused reported to the station. Amir Ali told him that the Accused person had stabbed a young man called Ali Juma. They put the Accused behind bars, some minutes later another car came in and they told him that they were taking victim to hospital. At that point the victim was still alive. At 5. 00 am the victims’ relatives came to report that he had died, he told them to come back the next morning to report. Pc Munene is the one who booked the statement. Accused confessed to him that he had stabbed ‘someone,’ though PC Munene is the one who recorded the statements.

9. PW6 was Juma Rajab, a neighbor to Accused person. He testified that on 21. 8 2018 at about 2. 30 am he was woken by noises from outside. He went outside found Amir who told him that Accused had stabbed deceased he was having an affair with his wife. Accused was walking towards Kisauni village, but he claimed he was heading to the police station. They persuaded him to go to the police station. He saw victim who was bleeding profusely from stomach. He did not see any weapon on Accused Person Accused person. They accompanied Accused person to the police station.

10. PW7 was CPL Reuben Mwinga attached to Mbale Police post. On 21st August 2018 at about 0100 hrs Accused person was escorted to station by members of the Public on claims that he had stabbed victim who was undergoing treatment at cost general hospital. The victim eventually succumbed at 0700 hours. Relatives of the deceased reported the death. Together with P.C Antony Mbithi they got the post mortem filled. They went to the mortuary and observed that the body had two stab wounds and injury on right side of the face. They took photographs of the body using a phone camera. The photographs were produced as MF1-P.

11. PW8 was Aziz Mohmmed Abdul a medical officer at Coast General Hospital. He testified on behalf of Dr. Twajleh who prepared the postmortem report. He testified that the deceased was 28 years old, well built, good nutrition and 160cm in height. He had a cut at the frontal part of his head, blood was oozing from the mouth, protruding intestines from sides of the abdomen which had cut wounds 7 cm each. There were massive clots in bladder. He testified that the cause of death was hemorrhage shock secondary to stab wound, penetrating the abdomen bilaterally with a perforated gut secondary to assault. He produced post mortem report.

12. PW9 CPL Antony Mbithi. On 21st August 2018 he accompanied relatives of deceased to Coast General Hospital and they identified the body and post mortem was done.

13. PW10 WAS no. 2363541 IP Abdi Korasuma the investigating officer in the matter. From his investigations he established that accused found deceased with visiting his girlfriend and as a result stabbed the deceased. That as per the witnesses who recorded statements it is the Accused who stabbed the deceased. PW3 told him that he saw Accused stab several times and had apprehended him when he tried to run away. He further testified that the Accused threw the murder weapon and it was never found. During cross examination he said that the alleged girlfriend to Accused called Mamake Hassan was never traced as she had moved out after the incident.

14. On 3rd February 2022 the Court ruled that Accused had a case to answer and he was put on his defense.

15. Accused gave sworn evidence. He testified that on 20th August 2018 he was went to work and the person supposed to take over from him delayed causing him to go home little bit late. He went home late as a result. When he went home he found the deceased and his wife Akoth Odhiambo alais Mamake Hassan. A fight ensued between the him and the deceased who ran out of the bedroom and escaped through the kitchen door. He pursued him but deceased had armed himself with a kitchen knife from his kitchen. They started fighting and in the course of defending himself the deceased got injured. He did not establish the extent of the injury as it was dark. PW3 and PW6 accompanied him to the police station and at that juncture the deceased was still alive. On cross examination Accused denied assertions that he had first confessed that he had found the two kissing and not in a sexual liaison. He further testified that deceased was known to him as he used to see him in the estate.

16. Accused person tendered submissions dated 20th May 2022. In a nutshell it was submitted that prosecution did not prove the offence to the required standard. Particularly, it was not established that it was the Accused person who committed the unlawful act that caused death of deceased. It was submitted that PW3 and PW6 testimonies of Accused confessing to stabbing the Deceased were never substantiated and no evidence was given to directly establish that Accused person who stabbed the Accused person. It was submitted that the key witness who could Mama Hassani was never brought before court to prove these assertions and lack of her evidence was averse to the prosecution’s case. Reliance is placed on Kerugoya Criminal Matter 4 of 2014 RvStanely Muthike Tiire (2018)eKLR.

17. It is further submitted that the Accused only stabbed the deceased after finding him in a sexual liaison and there was no premeditation on the Accused part hence ingredient of malice aforethought was not established. Accused reacted out of passion and provocation which negates malice aforethought and offence ought to be reduced to manslaughter. Reliance is placed on Kerugoya Criminal Matter No 4 of 2014 R v Stanely Muthie Tiire, R v Andrew Mueche Omwenga (2009)eKLR.

Analysis And Determination 18. From the evidence on record submitted by both parties I find that the core issue for determination is; Did the Prosecution prove its case beyond reasonable doubt?

19. Murder is defined under Section 203 of the Penal Code as Follows: - “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder” It is a cardinal Principle of law that in criminal cases the legal onus is always on the prosecution to prove the guilt of an accused person to the required standard which is beyond reasonable doubt.

20. In the case of Republic v Andrew Omwenga[2009[eKLR the court held: “It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) The death of the deceased and the cause of the death, (b)That the accused committed the unlawful act which caused the death of the deceased and (c)That the accused had the malice aforethought”.

Death of the deceased and cause of death 21. Death of the deceased is not a disputed matter in the present case. It was attested to by prosecutions witnesses PW1, PW2, PW4, PW7, pw8 and pw9. The Accused person also confirmed that the deceased died.PW8 the medical doctor Dr Abdul Aziz Mohammed produced the post mortem report exhibit 1 prepared by Doctor Twajleh in which it was established that deceased died as a result of hemorrhagic shock secondary to stab wound penetrating the abdomen bilaterally with perforated gut secondary to assault.

Whether death was caused by an unlawful act and or omission and whether it’s the Accused who committed the unlawful Act. 22. PW3 testified that he saw the deceased lying on the ground with his intestines protruding from outside and the Accused was shouting, “Nishmrarua.” It was also the further evidence of PW3, PW6 and PW10 that the Accused person confessed to stabbing the deceased on allegations that he found the deceased with his wife when he returned from work unexpectedly and they exchanged words and thereafter got into a brawl that ended up in a fatality. PW5 also gave evidence that the Accused confessed of stabbing ‘someone.’ It is my finding that the evidence given by PW3, PW6, PW5 and PW10 is corroborative of the fact that the Accused committed the unlawful act that led to death of the deceased.

Whether Actions of Accused was actuated by malice aforethought 23. Malice aforethought is defined in Section 206 of the Penal Codein the following terms:(a). An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not. (b). Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person 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 be caused. (c). An intent to commit a felony. (d). An intention to facilitate the escape from custody of a person who has committed a felony.

24. The Appellate Court in NzukivsRepublic[1993] KLR 171 Court of Appeal held that before an act can be termed as murder it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused; intention to cause death; Intention to cause grievous bodily harm; Where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse. It doesn’t matter whether the accused desires those to ensue or not. The mere fact that the accused conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder.

25. It is the evidence of Accused person that a brawl occurred between him and the deceased as a result of finding him in a sexual liaison with his wife. However, the investigating officer testified that the alleged woman was not his wife but his girlfriend. PW3 further gave evidence that he overheard a quarrel between the alleged girlfriend alias Mamake Hassan and the mother of the Accused who claimed that it was her fault that the young men were killing each other in the Estate, Accused person also confessed to PW3, PW5, PW6 AND PW10 that he had stabbed the deceased after finding him in sexual liaison with his girlfriend. However, it is not clear how the brawl ensued as the person who could have testified to this, Mamake Hassan moved out of the Estate after the incident and she did not record a statement.

26. It is apparent that the Accused pleads the defense of provocation. Section 208 (1) of the Penal Code defines the term provocation as follows: “The term provocation means and includes, except as hereinafter stated any wrongful act or insult of such a nature as to be likely when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in conjugal, parental filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.”

27. In the case of Republic v Hussein S/O Mohamed [1942] EACA at pg 66 the Eastern Court of Appeal held as follows: “When once legal provocation as defined in our court has been established and death is caused in the heat of passion whilst the accused is deprived of self-control by that provocation the offence is manslaughter and not murder, and that irrespective of whether a lethal weapon is used or whether it is used several times or whether the retaliation is disproportionate to the provocation. The presence of one or more of these factors is of course a matter to be taken most carefully into account when considering the question of sentence but will not of itself necessarily rule out the defence of provocation.”

28. In deciding a similar situation on provocation the Court of Appeal in the case of Elphas Fwambatok v Republic [2009] eKLR held thus: “In our view once a person is provoked and starts to act in anger he will do so until he cools down and starts seeing reason. This is because he will be suffering under diminished responsibility and the duration of that state may very well depend on individuals. In any case several injuries can be inflicted within a very short time particularly if one has a panga – we cannot agree that whether a person is acting on provocation or not would depend on the number of injuries inflicted on the victims.......”

29. In Mabanga v Republic[1974] EA 176 the court further held inter alia on this subject as follows: “The judge should have considered the defence of provocation and sought the opinion of his assessors as to whether this forcible seizure of the court was in the particular circumstances of this case provocation sufficient to have rendered the offence of murder to manslaughter........We have on our own revisited the content of section 208 of the Penal Code and construed it. To us content of provocation means any wrongful act of insult of such a nature as to be likely when done to an ordinary person......To deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.”

30. Having considered evidence of Accused Person and prosecution witnesses I find that the Accused persons defence is valid being that it is supported by evidence of prosecutions witnesses and the investigating officer did not controvert the same. In the circumstances of this case the provocation must have been irresistible so as to deprive him of the power of self-control and to induce him to commit an assault. I therefore find that the ingredient of malice afore thought was not established and Accused person is found guilty of the offence of manslaughter and he is convicted under section 322(1) of the Criminal Procedure Code Cap 75 of the Laws of Kenya.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 16TH JUNE 2022. HON. LADY JUSTICE A. ONG’INJOJUDGEIN THE PRESENCE OF: -Mikiti Advocate for the AccusedAccused present in personMr. Ngiri for StateOgwel, Court AssistantMr. Ngiri; We don’t have person’s recordsMr.Mikiti; May file be placed asideMention laterHON. LADY JUSTICE A. ONG’INJOJUDGELater at 11. 32 amCoram as beforeMr MikitiAccused is 25 years old, 1st time offender who is remorseful. I urge the Court to give him a lenient sentence. The Accused has been in custody for 4 years. I pray for a probation report to be prepared to aid court in arriving at an appropriate sentence.ORDERMention on 6th July 2022Victim impact statement and pre-sentence report to be prepared.Accused to remain in custody.HON. LADY JUSTICE A. ONG’INJOJUDGE16thJune 2022