[2022] KEHC 1868 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO. 33 OF 2017

REPUBLIC........................................................................PROSECUTION

VERSUS

EMILY NEKESA WEKESA......................................................ACCUSED

J U D G M E N T

The accused EMILY NEKESA WEKESA is charged with the 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 night of the 3rd day of December, 2017 at Koshok village in Mt. Elgon sub-county within Bungoma County murdered BRAMWEL WASIKE KUNDU.

The case for the prosecution is that on 3. 12. 2017 at around 9 p.m. PW2 Mercelina Kakasa Kundu the mother of the deceased was at her house when the accused who is wife to her brother in-law’s son came.

Accused reported to her that if deceased does not bring her 2 chicken and a goat he will see. The deceased who was at a well drawing water heard the conversation and denied that he took accused’s chicken. Deceased came and left with the accused. Later she was informed deceased was lying down at the farm. She went there and found the deceased lying down. They took him to the house and next day was taken to Kimilili hospital where he was referred to Kitale hospital where he died while undergoing treatment.

PW1 Eugene Juma Wasike the brother of the deceased was in his house when he heard people quarrelling at his mother’s house. He recognized the voice of accused saying “ You stole my chicken and goat today”. The deceased called him. He started going there and found deceased lying down. Deceased told him the accused had hit him and noticed he was bleeding. He called the father and mother who came and they took him to the mother’s kitchen house. The next day on 4. 12. 2017 they took him to hospital where he died while undergoing treatment.

On being cross examine d by Mr. Otsula for accused, he stated that when he arrived at the scene, he saw accused and Eliya leaving. He confirmed that the deceased was drunk. He also stated that Eliya has not been arrested.

PW3 Jacob Kundu the father of deceased testified that he was in his house when accused went there looking for her lost chicken. She left with the deceased. Later he was called by Eugene his son who told him deceased had been injured. He went there and found him lying down. He had blood stains on his head. They later took him to hospital where he died.

On being cross examined, he stated that the deceased told them it is accused and Eliya who had assaulted him.

PW4 Andrew Wangila Walubafu the village elder was at his home on 4. 12. 2017 when accused went to him and informed him that deceased had stolen her chicken. He went to the house of deceased and found him outside the parent’s house with visible injuries. He advised the parents to take him to hospital. He s poke to accused who told him that deceased had assaulted him and she pushed him and he fell down.

PW7 Dr. Okumu Moses performed the post moterm on body of deceased. He found that the body had a cut wound on left temporal area bruises on anterior chest, there was collection of blood in the chest cavity, skull fracture on left back of the head and brain injury. He formed opinion that the cause of death was due to brain injury due to assault.

PW6 NO. 52330 Copl Thomas Mangu testified that he and PC Rotich received information of death of deceased. They were informed that the accused was the suspect. They went and arrested her. She was then charged with present offence.

The accused on being put on her defence gave sworn evidence. She stated that on 3. 12. 2017 at 8 p.m. she was at her house preparing supper when deceased went to her house and demanded be given food. She advised him to go to the main house. She then went to the main house but did not find him. She started looking for him as her chicken had also disappeared. She went to his home but did not find him. She went to the mother’s house. On the way she met deceased and asked him about the missing chicken. The deceased was angered saying she was calling him a thief. Deceased then held her and hit her with fists on the chin. She then pushed the deceased who fell down. She then left. The next day she reported that matter to the village elder. Later deceased was taken to hospital.

On being cross examined by M/s Omondi for state she confirmed that she suspected deceased to have stolen the chicken as he had something in a gunny bag. She admitted that she sells alcohol. She confirmed that the deceased and her quarreled before deceased hit her.

Mr. Otsula for the accused filed written submission. He submitted that the fact of death is not disputed by the accused. He submits that from the evidence the deceased Bramwel is dead as has been p roved by the post-mortem evidence. Counsel submitted that from the evidence adduced, the accused was acting in self defence as the deceased had stolen her chicken and when she asked him, he became violent and sensing danger she pushed him.

Counsel further submitted hat the accused acted under provocation by the deceased who hit her when she asked him about the missing chicken. He submits that provocation being defence to the charge, the prosecution has not established the charge beyond reasonable doubt and accused should be acquitted.

The accused is charged with the offence of murder contrary to Section 203 of the Penal Code. The Elements of the offence which the prosecution must prove 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 Bramwel Wasike Kundu is dead is not disputed. Even the accused in her evidence confirmed this. The cause of death was given by PW7 Dr. Moses Okumu who performed the post moterm report. He testified that deceased had cut wound on left side of head and there was collection of blood in the chest cavity on the right side. The deceased had fracture of the skull and the brain had injury. He formed opinion that the cause of death was due to brain injury as a result of assault.

Who assaulted the deceased?

PW1 Eugene Juma Wasike testified that on responding to the deceased call, he went there and found him lying down. Deceased told him it is accused who had hit him. Earlier he had heard accused say “You want to beat me”

PW2 Mercelina Kundu was only informed by Eugene (PW1) that deceased had been injured. PW3 Jacob Kundu the father of deceased was also informed by Eugene (PW1) that the deceased had been attacked and saw him lying down.

The accused in explaining how the deceased sustained the injuries stated in her evidence: “ On 3. 12. 2017 in the evening at 8 p.m. I was preparing supper when Bramwel Wasike came to me. He was my brother inlaw, the brother of my husband. He asked me for food. We were not staying together. I told him to go to the main house. I told the children to prepare to sleep. I went to the main house and did not find him. I started looking for him as my hen had disappeared. I went to his home but did not find him. I went to his m other Mercelina Khakasa who told me he had not gone there and she had not seen the hen.

When I was going back I met Bramwel the deceased. I asked him about my missing hen and he told me I was calling him a thief. He then held me and hit me with fists on the chin. I pushed him and he fell down. I then ran away.”

The accused’s evidence is that the deceased upon being asked about the lost chicken became violent and started hitting the accused with fist for calling him a thief. The accused then pushed him and he fell down. This is where PW1 and PW2 found the deceased with the injuries. These are the injuries from which he later died while undergoing treatment.

Mr. Otsula counsel for the accused submitted that the accused pushed the deceased who fell down and sustained injuries as a result of provocation. Counsel submitted that the act of the deceased hitting accused with fists amounted to provocation.

Section 208 of the Penal Code defined provocation as: “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 are, 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.”

This question on provocation and provisions of Section 208 (1) of the Penal Code have been a subject of interpretation and discussion in our courts in several cases. In the earlier case of Republic –vs- 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 itis 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.”

In the case of Peter Kingori Mwangi & 2 Others – vs- Republic (2014) eKLRthe court stated that, “for provocation to exist the following two conditions must be established:

(1) The subjective condition that the accused was actually provoked so as to lose his self-control and

(2) The objective condition that a reasonable man would have been so provoked.

In deciding a similar situation on provocation the Court of Appeal in the case of Elphas Fwambatok –vs- 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 injury 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….”

In Mabanga –vs- Republic (1974) EA 176 the court further held interalia 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 any 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.”

The court of appeal in Lucy Mueni Mutava –vs- (2019) eKLR stated:

Provocation is a defence available to a person who by his/her actions causes the death of another and is faced with a charge of murder, provocation was succinctly defined in the case of Duffy (1049) 1 ALL ER 932as:

“Some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind…”

See also Section 208 of the Penal Code. The person relying on the defence simply states that at the time he committed the offence he was under a diminished capacity and acted in the heat of anger or passion. See Elphas Fwamba Toil vs. R(2009) eKLR.

It therefore follows that for such a defence to suffice two conditions must be satisfied as deduced by this court in Peter King’ori Mwangi & 2 Others Vs. R(2014) eKLR namely:

“The “subjective” condition that the accused was actually provoked so as to lose his self-control; and

The “objective” condition that a reasonable man would have been so provoked.”

Was the defence available to the appellant” whether the appellant was provoked to lose her self-control is a question of fact which is to be determined on the evidence presented. See VMK vs. R(2015)EKLR.

In this case there is evidence that the chicken and goat of the accused had been stolen. She suspected the accused as the thief. She reported her suspicion to the mother of accused. When confronted with the information the accused started hitting the accused for calling him a thief. It is after being hit with fists that she pushed the deceased who fell down and succumbed to the injuries sustained.

In the Chalol decision of Plamer –vs- 1971 AC 814 the privy counsel stated:

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but only do, what is reasonably necessary. But everything will depend upon particular facts and circumstances. Some attacks may be serious and dangerous, others may not be. If then is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. It an attack is serious so that it puts someone in immediate peril, then in a mediate defensive action may be necessary. If the moment is out of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. That may be no longer any link with necessity of disprove, in which case as a defence itis rejected. In a homicide case this circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be out of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking then the matter would be left to the jury.”

This principle has been enacted in our Section 207 of the Penal Code which provides: “when a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.”

From the evidence adduced I am satisfied that the accused acted under provocation when she pushed the deceased who fell down and sustained injuries from which he died. I am satisfied that the prosecution as per the provisions of Section 207 of the Penal Code has proved a charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and convict him accordingly.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 2ND DAY OF FEBRUARY, 2022.

S.N RIECHI

JUDGE