[2020] KEHC 7579 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

(CORAM: CHERERE-J)

CRIMINAL CASE NO. 15 OF 2019

BETWEEN

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

AND

ERNEST ODUOR ONYANGO........ACCUSED

JUDGMENT

1. ERNEST ODUOR ONYANGO,the accused herein and another who was acquitted under Section 306(1) of the CPC were jointly charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information are that:

On 04. 08. 17 AT Kaila Sub-location, Seme Sub-County within Kisumu County, jointly with others not before the court murdered Richard Odongo Odiaga

PROSECUTION CASE

2. The prosecution called six (6) witnesses in support of its case. PW1 Boniface Onyango, stated that the material date at about 04. 00 am, he was at a funeral ceremony, in a tent which was lit by a lamp where a crowd was dancing to music. He stated that Richard Odongo Odiaga (deceased) went into the tent running followed by the accused who hit him on the head with a stick after which accused ran away.

3. PW2 Joshua Omondi Otieno and PW3 Fredrick Omondi Otieno stated that the deceased ran into the tent with a bleeding head and the accused followed him there and hit him on the shoulder with a stick.

4. PW4 Vincent Omondiwho was playing music in the tent stated that the deceased ran into the tent with a bleeding on forehead and the accused followed him there and hit twice on the back of head with a stick.

5. PW5 Tobias Odiala Odongodeceased’s father did not know how deceased met his death but identified his body which had a cut on the forehead, to the doctor that conducted a postmortem on 07. 08. 17.

6. PW6 Sgt Livingstoen Lihanda, upon investigating the case arrested accused and another and caused them to be charged. With the consent of the defence counsel, the witness produced deceased’s postmortem form PEXH. 2that was prepared by Dr. Ogolla. The report shows that deceased suffered a deep 10 cm frontal laceration, 3 cm occipital laceration reaching the skull, lacerations and abrasions on the waist and lacerations on the left 1st and 3rd fingers and died of raised intracranial pressure and subdural bleeding due to assault on the head.

DEFENCE CASE

7. After the close of the prosecution case, I entered a plea of not guilty against accused 3 since he had not been implicated and place accused herein on his defence.

8. Accused in his sworn defence denied going to the disco matanga where deceased suffered fatal injuries. His wife Esther Agura Oduor similarly stated that the accused did not leave home on the material night.

ANALYSIS AND FINDINGS

9. I have considered the evidence on record. The ingredients of murder were explained in the case of Roba Galma Wario vs Republic [2015] eKLRwhere the court held that;

“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

(a) The death of the deceased

10. The death of the deceased has been confirmed by a postmortem form produced as PEXH. 2which shows that deceased suffered a deep 10 cm frontal laceration, 3 cm occipital laceration reaching the skull, lacerations and abrasions on the waist and lacerations on the left 1st and 3rd fingers and died of raised intracranial pressure and subdural bleeding due to assault on the head.

(b) Proof thataccused committed the unlawful act which caused the death of the deceased

11. PW2 Joshua Omondi Otieno, PW3 Fredrick Omondi Otieno and PW4 Vincent Omondi who were in a tent at the scene of crime stated that the deceased ran into the tent with a bleeding head. PW2 Joshua Omondi Otieno and PW3 Fredrick Omondi Otieno stated that accused who appeared to have been chasing the deceased followed him into the tent and hit him on the shoulder with a stick.

12. Whereas none of the witnesses saw the person that injured the deceased on the front of the head, their evidence that accused was at the scene and that PW1 Boniface Onyango and PW4 Vincent Omondi saw the accused hit the deceased on the back of head is well corroborated.

13. There is evidence that Accused was well known to the prosecution witnesses who also stated that the scene of crime was lit with a lamp. From the foregoing, I find that the prosecution has proved that accused committed the act that resulted in deceased’s death. Accused’s defence that he was not at the scene of crime is thus rejected.

Proof that deceased had malice afterthought

14. The court must determine whether accused, with malice aforethought inflicted the injuries that resulted in the death of the deceased. There is of course no requirement in the Penal Code that one must have motive for murder which is the unlawful killing of another with malice aforethought under Section 203 of the Penal Code

15. Malice aforethought has been defined in a number of cases. In Nzuki Vs Republic [1993] KLR 171, the Court of Appeal held that an act murder is proved if it is committed with the intention to cause death, grievous bodily harm or 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.

16. In Daniel Muthee Vs Republic Criminal Appeal No. 218 Of 2005 (UR)cited in the case of Republic Vs Lawrence Mukaria & Another [2014] eKLR, Bosire, O’kubasu and Onyango Otieno JJA., while considering what constitutes malice aforethought observed as follows:

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”

17. Upon a careful evaluation of the evidence, this court finds that the when the Accused set upon the deceased and him with a stick on the head, he must have known that his act would cause death or grievous harm. I am therefore satisfied that malice aforethought has been established in terms of Section 206(b) of the Penal Code.

18. Consequently, I have come to the conclusion that the state has proven its case beyond reasonable doubt. Accused is found GUILTY of the offence of murder and he is accordingly convicted.

DATED AND DELIVERED IN KISUMU THIS 05th DAY OF March 2020

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Amondi/Okodoi

Accused - Present

For Accused -

For the State - Ms. Gathu