[2022] KEHC 10741 (KLR)

Republic v ESW (Criminal Case 26 of 2019) [2022] KEHC 10741 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10741 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 26 of 2019

SN Riechi, J

May 4, 2022

Between

Republic

Prosecution

and

ESW

Accused

Judgment

1. The accused ESW is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that ESW on the 13th day of June 2019 in Bungoma North Sub-County within Bungoma County murdered FW alias F.

3. The case for the prosecution is that the deceased FW alias F was at time of death aged one year 2 months old. He was the son of the accused and EKN. On 13. 6.2019 PW4 ANN the mother of accused left the deceased with other children, R and N and went to the farm. While there R came and informed her that accused had slaughtered the deceased. She ran there and found the deceased lying on a piece of timber with injury on the neck. She saw a knife next to the child. She checked and found the was child dead. Members of public went and brought accused to the scene after about ½ hours.

4. PW1 R a minor aged 12 years testified that on the material day she was outside the kitchen house when she had a noise at the back of the kitchen. She went there and found accused cutting the deceased on the neck. She saw the deceased bleeding. She saw a knife next to the deceased. She went to call A (PW2) who went to call the accused’s mother ANN (PW4)

5. PW2 A was at her farm at 5. 30 p.m. when R PW1 came and informed her to go and see what had happened. She went behind the kitchen where she found accused who wanted to assault her. She then saw the deceased lying down and next to him was a knife. She observed the deceased and saw he was bleeding from the neck. She screamed and JW the father of the accused came and later the chief was called. At the time she arrived she only found the deceased and accused.

6. PW3 JW the father of the accused was in his house when he heard screams from behind the kitchen. He went there and found deceased had been cut on the throat and was dead. Next to the deceased he found a knife and timber which were blood stained. He did not find accused at the scene but was shortly brought by a mob. In cross examination he said accused used to say he sees people armed with pangas.

.PW5 NO. 73438 Segt Abdi Tuluga attached to DCI Bungoma received a report of murder at [Particulars Withheld] village. He visited the scene and found body had been removed to Kimilili Cottage mortuary. He also found the suspect who is accused had been arrested by OCS. At the scene he found a piece of timber and blood stained clothes of accused’s mother. He received the knife which was the murder weapon. The scene was processed and photographs taken and sketch plan drawn. Post mortem was later conducted and accused charged with the present offence.

8. PW7 Dr. Okumu Moses who performed the post mortem on body of deceased found that there was a traverse cut on the anterior aspect of the neck measuring 8 cm. There was complete cut of the trachea, the oesophagus was dissected, nerves around the neck were cut together with the cervical bone. He formed opinion that the cause of death was due to cut wounds on the neck. He issued certificate of death No. 1186287 and produced the post mortem form as Exh.8.

9. The accused upon being put on his defence testified that on 13. 6.2019 he was at Marakwet village when his wife EKN who was the mother of the deceased called him and told him she was bringing the child home for accused’s mother to see him. He went home at Tongaren on 13. 6.2019 and on reaching home saw many people at the home. The people attacked him and he became unconscious. When he regained consciousness he found he was at Kapchonge police station. He testified that the charges are a fabrication by his step-mother who does not like him.

10. The accused is charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 Penal Code provides:““Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

11. The prosecution in a charge of murder should prove the following elements of the offence beyond reasonable doubt:a)The death of the deceased.b)The unlawful act or omission causing the death.c)That in causing death the accused committed it with malice aforethought.d)That it is accused who committed the unlawful act or omission causing the death.

12. On the fact and cause of death PW7 Dr. Okumu Moses who performed the post mortem on body of deceased testified that the deceased neck had cut wound and trachea completely cut and the cervical bone was cut. He formed opinion that cause of death was due to the cut on the neck. He issued certificate of death No. 1186287. This witness therefore confirmed the fact and cause of death.

13. Did the accused commit the unlawful act of cutting the trachea of the deceased and therefore caused his death?

14. The issues revolves around the identification of the accused as the offender. Positive identification of an accused as the person who committed the offence is an important ingredient of criminal justice because then the person bears responsibility for his actions and the aim of sentencing is to punish, reform or rehabilitate an offender.

15. In this case, PW1 R testified that upon hearing noise from behind the kitchen, she went there and found deceased who was about one year old lying on a piece of timber bleeding and accused present. She saw a knife next to the deceased. PW2 A was informed by R to go and see how accused had cut the deceased. She went there and found deceased lying down dead and next to him was a knife. She found the accused present with the deceased. PW3 JW ran to the scene and found deceased placed on a timber and a cut on his throat. He did not find accused present but was brought shortly later by a mob. PW4 ANN the mother of the accused was informed of the murder and ran to the scene, where she found the deceased lying down with injuries on the neck.

16. The accused in his defence only testified on how he was attacked by people at his home and later found himself at the police station.

17. All these witnesses testified how they went to the scene and found the deceased lying down with injuries. PW1 R, PW2 A found the accused at the scene where the child was and saw a knife next to it. They only found the accused and deceased who had injuries on the neck. It is not therefore true as the accused contends that he was not at the scene. The incident occurred during day time at 5 p.m., the witnesses are all relatives, mother, father, niece who knew the accused well and it is not possible that they would make a mistaken identify.

18. Though none of the witnesses testified that they saw accused cut the deceased, on running to the scene they found deceased placed on a piece of timber, throat cut, knife at the scene and only accused was present with the deceased. These circumstances point irresistibly to the inference that it is accused and no other who laid the one year old child on a timber, cut his throat and who then died from the injuries. I am therefore satisfied that it is accused who cut the deceased trachea and caused his death.

19. The other ingredient of the offence of murder the prosecution must prove is that the accused in committing the unlawful act had the malice aforethought. Section 206 of the Penal Code defines malice aforethought 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.

20. In R v Tebere s/o Ochen [1945] EACA 63, the Court of Appeal of eastern Africa stated:In determining the existence or non existence of malice aforethought one has to look at factors showing the weapon used, the manner in which it was used and the part of the body targeted.

21. In this case there is evidence that the weapon used was a knife and the part of the body that was targeted was the trachea or neck. The deceased was about one year old; he was laid on a timber and then cut on the throat using a knife. This is proof that the act was well planned and executed by the accused with the intention of killing the deceased. I therefore do find that accused did possess the necessary mens rea to commit murder which he did in a most heinous manner to a child aged one year old.

22. I therefore find that the prosecution has proved the charge of murder against the accused. I therefore find the accused ESW guilty of the offence of murder and convict him accordingly.

DATED AT BUNGOMA THIS 4TH DAY OF MAY, 2022S.N RIECHIJUDGE