[2017] KEHC 1424 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NUMBER 75 OF 2013

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

VERSUS

FRANCIS MAKORI OMBATI.........................ACCUSED

JUDGMENT

1. The accused FRANCIS MAKORI OMBATI was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code, the particulars of which were that on the 3rd day of July, 2013 at Kayaba Slum, Industrial Area within Nairobi County murdered VINCENT AMBUYA.

2. He pleaded not guilty and to prove its case against him the prosecution called a total of seven (7) witness and when put on his defence the accused gave sworn evidence and called no witness.

PROSECUTION CASE

3. PW 3 DUKE NYAMBUTI ORINA one of the eye witnesses to the incidence herein testified on oath and stated that on 3rd July, 2013 at about 10. 00 a.m. while on his way to work saw people fighting and upon reaching the scene he heard the deceased telling the accused that he will kill him. He intervened and separated them. The accused left and sat on a chair and shortly thereafter he saw the deceased throwing stones at the accused who took the chair he was sitting on and hit the accused on the head. The accused tried to remove the said chair but noticed that it was stuck in the head of the deceased. He then decided to run away from the scene but was arrested by “REMI” PW 6. In cross-examination he testified that it was the deceased who was beating the accused before he separated them.

4. PW 6 RAMMY ISHMAEL KANGAI confirmed having arrested the accused who was running away from the scene and took him back to the scene where he saw the body of the deceased with a chair stuck on his head. PW 1 NICHOLAS MAVINDU MNYANGA the Village Elder went to the scene and found members of the public with the accused whom they waited to beat up and he arrested the same and took him to the AP Camp where he was re-arrested and taken to Industrial Area Police Station. PW 7 Corp STEPHEN OTIENOupon receiving report went to the scene and confirmed that the deceased had picked up a quarrel with the accused and in the cause of the fight the accused hit him with a metal chair on the head occasioning false injuries to the same.

5. It was his further evidence that he interviewed the accused who informed him that the deceased had accused him of stealing his money and cellphone which he denied and the deceased started to pelt him with stones. In the process he became angry and hit him with the metal chair he was sitting on. PW 2 LAWRENCE KINYUA MUTHURI a Government Analyst received items which included blood sample from the deceased and a black metal chair frame and upon examination confirmed that the DNA profile generated from the metal chair frame was of unknown male while the blood sample from the deceased did not generate any DNA profile.

6. PW 4 CORPORAL JENIPHER SIRANA a Scene of Crime officer confirmed processing the scene and confirmed that she did not find the metal chair frame on the head of the deceased. PW 5 DR. PETER NDEGWA performed post mortem examination on the body of the deceased and formed the opinion that the cause of death of the deceased was head injury due to blunt force trauma.

DEFENCE CASE

7. When put on his defence the accused testified on oath and stated that on 3rd July, 2013 he was woken up by the deceased from his house who told him that he was needed by the person who sells the alcohol known as “Baba Kim” who owed him some money. He proceeded with the deceased to Baba Kim’s place who gave him Ksh.3,000/- part repayment. He then bought alcohol and in the process he fell asleep. When he woke up he found his money missing and when he asked he was told that it was the deceased who had kept the money for him.

8. He therefore decided to trace the deceased whom he found and urged to return his phone and money which he declined. Thereafter the deceased started a fight with him and PW 3 separated them. The deceased then attacked him armed with a big rock and to defend himself he pranked up the chair he was sitting on to defend himself with which the deceased hit himself against causing the fatal injuries.

SUBMISSION

9. It was submitted by the accused that the deceased was the aggressor and that the accused did not have any intention to harm the deceased. He was only defending himself and that both the accused and the deceased were drunk at the material time. It was submitted that the prosecution had not proved malice aforethought. On behalf of the prosecution it was submitted that the death had been proved and that the accused was placed at the scene. It was submitted that it was not true that the deceased hit himself on the metal chair and that motive had been proved since the deceased had taken the accused’s money.

ANALYSIS AND DETERMINATION

10. To sustain a conviction on a charge of murder the prosecution is required to prove beyond any reasonable doubt the following ingredients of the offence under Section 203 of the Penal Code: -

a) The fact and the cause of death.

b) That the said death was caused by unlawful act or the omission or commission on the part of the accused person.

c) That the said unlawful act was caused with malice aforethought which is defined in Section 206.

11. The fact and the cause of death of the deceased was proved beyond any reasonable doubt by the evidence of PW1, PW3 the only eye witness PW 6 who arrested the accused and PW 5 Dr. Ndegwa Peter who performed postmortem examination on the body and in the presence of PW 7 the investigation officer and who confirmed that the deceased sustained the following injuries: -

(i) Subcutaneous contusion occipital scalp.

(ii) Circular fracture occipital skull.

(iii) Brain laceration, spillage and loss.

(iv) Intracranial hemorrhage.

and as a result of the said examination formed opinion that the cause of death was head injury due to blunt force trauma.

12. On whether the said death was caused by unlawful act on the part of the accused person, the evidence tendered before the court and confirmed by the accused clearly points to the accused as having inflicted the fatal injuries on the deceased. This was confirmed by PW3 DUKE NYABUTI ORINA who was an eye witness who saw the accused pick up the chair he was sitting on and hit the deceased who was attacking him with stones.

13. The only issue in controversy is whether the said action was done with malice aforethought. The evidence before the court is that it is the deceased who had attacked the accused having earlier fought with him. According to PW 3 the accused was never interested in fighting the deceased who kept on saying that he would kill the accused. It was his evidence that after he separated them, the deceased followed the accused and attacked him with rocks and as confirmed by the accused in the process the accused was provoked thereby causing him to hit the deceased with the chair in self defence.

14. Section 207 of the Penal Code provides that 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 the 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.

15. There is evidence tendered before the court which supports a finding that the deceased herein was the aggressor and that the same provoked the accused. From the defence of the accused it is clear that the same in addition to being provoked by the deceased acted in self defence which falls within the holding in NJERU Vs REPUBLIC [2006] eKLR 46 where the Court of Appeal held:-

“1. A killing of a person can only be justified and excusable where the action of the accused which caused the death was in the course of averting a felonious attack and no greater force than was necessary was applied for that purpose. For the plea to succeed, it must be shown by the accused on a balance of probabilities that he was in immediate danger or peril arising from sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert an unforeseen the attack.”

16. The evidence of PW 3 is clear that it is the deceased who was attacking the accused pelting him with stones and the accused in his defence stated that the deceased approached him with a big rock forcing him to use the metal chair he was sitting on in self defence and therefore found that the same had not premeditated the attack on the deceased. PW3’s evidence supplied the accused defence of provocation.

17. It is, therefore, clear that the state has failed to prove the charge of Murder against the accused person, however, there is evidence to find which I hereby do, the accused guilty of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code and hereby convict the same accordingly in accordance with the provision of Section 179(2) of the Criminal Procedure Code.

Dated, delivered and signed at Nairobi this 4th day of December, 2017.

.......................

J. WAKIAGA

JUDGE

In the presence

Mrs. Kinoti for the state

Mr. Saenyi for the accused

Accused in person

Court clerk - Tabitha