[2022] KEHC 14973 (KLR)

Republic v Isavwa (Criminal Case 22 of 2014) [2022] KEHC 14973 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14973 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 22 of 2014

WM Musyoka, J

November 4, 2022

Between

Republic

Prosecution

and

Stephen Khayemi Isavwa

Accused

Judgment

1. Stephen Khayemi Isavwa is charged with murder, contrary to section 203, as read with section 204, of the Penal Code, cap 63, laws of Kenya. Particulars of the offence allege that on the 18th day of May 2014, at Ikuyo “B” Village, Savane Sub-Location, Iguhu location of Kakamega South District, within Kakamega County, he murdered Caroli Shitsukane, hereinafter referred to as the deceased. He pleaded not guilty to the charge on May 23, 2014. The hearing of the case for the prosecution commenced on March 4, 2019. Four witnesses testified.

2. The first on the stand was Dr Dixon Mchana Mwaludindi who testified as PW1. He was the pathologist who conducted an autopsy on the body of the deceased on May 20, 2014. He identified a cut wound across the right forearm, with severed muscles and arteries, and a linear wound on the front of the left shoulder. He found all the other systems to be normal. He formed the opinion that the cause of death was external blood loss, secondary to sharp force trauma, following assault.

3. Margaret Anjira Adubola testified as PW2. She was the mother of the accused and the deceased. She testified that on May 17, 2014, at 6. 00 pm, she was at home with both sons. The accused said that one of his chickens was missing, whereupon the deceased said that he was the one who had sold it, to raise money to buy alcohol, and said that the accused could do as he pleased. The two sons were speaking from outside their respective houses. The accused did not respond to the deceased, instead he retreated into his house. The deceased also retreated into his house, and came out with a panga, cutlass, and walked to the house of the accused, holding the panga and a plate of ugali. He entered the house of the accused, and pushed him out, saying that he did not want trouble with him. PW2 asked the deceased not to cause any trouble, whereupon he went towards her. He lifted his panga, in an attempt to slash her, but she shielded herself with a sufuria, cooking pot. He turned and left her alone, and faced the accused, who was standing outside his house. The deceased lifted the panga to cut the accused, who got hold of it, as if to wrest it from the deceased, and in the process the panga cut the hand of the deceased, and he began to bleed. She took both sons to the local administrators, and later to hospital, at Kilagiro. The deceased was not attended to and they went home. The next morning, they took her to Kakamega General Hospital, where he was admitted, but died not long upon the admission. She said that her two sons were not on good terms.

4. Nicholas Lumadi Wikomba testified as PW3. He was the villager elder for the area. He stated that he saw the deceased come to his home on May 17, 2014, at 7. 00 pm, bleeding from the palm of his left hand. He also had an injury on his left shoulder. He described the injury as a panga cut. The deceased told him that the injury was caused by the accused, with a panga belonging to the deceased. He also mentioned to him about the dispute over a chicken. He arranged for him to be taken to hospital. The next morning, he visited their home, and recovered the panga that was used to cause the injury, and the chicken that sparked off the whole thing. He said he recovered the items in the presence of the accused and his brother, Morgan Ichami. He later heard that the deceased had died, whereupon he arrested the accused and escorted him to the police.

5. Police Sergeant Kenneth Ngeiywa, number 78718, followed as PW4. He had taken over the file as investigating officer, from Police Corporal Boniface Musembi, No 60909. He said that no exhibits were handed over to him, and all he got were the statements recorded from witnesses. He explained that the deceased had stolen a chicken from the accused. The two quarrelled in front of their mother, PW2, whereupon the deceased threw a plate of ugali on the accused, and then attacked him with a panga. The accused then grabbed the panga from him, and cut him on the right shoulder and right palm. The deceased rushed to the home of the area Assistant Chief, who arranged to have him rushed to hospital for treatment. He died at Kakamega General Hospital on May 18, 2014.

6. I ruled, on February 1, 2022, that the accused person had a case to answer, and I put him on his defence. The defence hearing happened on May 4, 2022. He identified the deceased as his younger brother, while PW2 was their mother. He stated that on May 18, 2014, after he got home from farming, at about 6. 00 pm, he found two of his chickens missing. He enquired from his other brother, Morgan, about them, and was told that the deceased had taken them. He asked the deceased about them, and he denied having anything to do with them. The accused then went to report the matter to their mother, PW2. While he was talking to PW2, the deceased came to where they were, holding a panga, and started making noise, claiming that they were talking about him, saying that he had taken the chickens, which was not true. He hit PW2 with the panga, and the accused intervened, whereupon he was hit with the panga, and fell down. The deceased then attacked him while he was lying on the ground, and the accused wrestled with him, and wrested the panga from him, and threw it away. The deceased rushed and took it, and ran towards the accused. They struggled, as the accused sought to take the panga away from him, but he held on to it. The accused pulled it away from his hold, and in the process it cut his hand. He explained that the deceased sustained the shoulder injury after he fell down as they struggled. He said that he, the accused, was not armed with anything, when the deceased approached where he and PW2 were.

7. At the close of the oral hearings, the accused, through his Advocate, Mr Kundu, had indicated that he would be filing written submissions. He never did.

8. The elements of the offence of murder, as set out in section 203 of the Penal Code, are the fact of death, the cause of the death, the role of the accused person in the cause of the death, and the fact that the death is caused by the accused with malice aforethought.

9. From the material before me there is prima facie proof that the deceased in fact died. PW2 testified about how he died after he got admitted at the Kakamega General Hospital. PW1 conducted an autopsy on the remains. On cause of the death, PW1 concluded that the deceased died as a result of external blood loss after he had been assaulted with a sharp object. On the role of the accused in the causation of death, PW2, PW3 and the accused himself testified to the fact that the injury was caused by the accused. The only issue that I should be deciding on is whether the death was caused with malice aforethought.

10. Malice aforethought is defined in section 206 of the Penal Code, and one of the elements of it is knowledge. Section 206(b) states:“Malice aforethoughtMalice 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)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.”

11. Under section 206, malice aforethought is to be inferred where an intent to cause death or to cause grievous harm, or the knowledge that the act causing death could death or grievous harm, or an intent to commit a felony, or an intention to facilitate escape from custody of a person and in the process a death is cause.

12. When the scuffle between the accused and the deceased happened, only the deceased, the accused and PW2 were present. Morgan was mentioned by both PW2 and the accused, but it is not clear, whether when the actual struggle between the two was happening, Morgan was within the vicinity. The evidence about what exactly transpired came from PW2 and the accused person. There are some inconsistencies from their narratives, but the principal outline is that the accused found his chicken missing, the deceased was said to have had something to do with the loss, when he was asked about it he armed himself with a panga, and attacked both PW2 and the accused, and he was fatally injured while the accused was disarming him. From these narratives, it would appear that the deceased was the aggressor, and the panga, that caused the fatal injury, was brought to the scene by himself. The explanation given by the accused, in his defence, appears to be consistent with the medical evidence. The principal injury was the cut wound on the palm. The wound is described as longitudinal, in the post mortem form, suggesting that it was a cut caused as the panga was pulled away from the deceased, as opposed to the deceased being smacked with it on the palm. The injury on the shoulder is described, in the post mortem form, as a streaked superficial wound 5 centimetres long. The accused said that the same was caused by a fall. PW1 did not indicate what might have caused such an injury. I doubt that it was cause by a fall, for a streak suggests a strip, which makes it consistent with an injury caused by a long object, such as a panga.

13. So, what should I make of this? It appears that the deceased was the aggressor. He brought himself to the presence of the accused and PW2, while armed with a panga, and proceeded to attack both of them. The eyewitnesses testified that the injury was caused in the process of disarming the deceased, and the cut on the palm appears to be consistent with that. The injury on the shoulder does not appear to be have been due to a fall as stated by the accused, but it does not appear to have been the principal injury which caused the bleeding to death, for it is described, in the post mortem form, as superficial. From the evidence, it appears that the accused person had no intention to cause death or injury to the deceased, by pulling the panga from his grip. Perhaps it is more a case of doing an act with the knowledge that it could cause injury or being indifferent to that possibility. The accused, no doubt, knew that the panga had a sharp edge, and that, when yanked from the grip of the person holding it, it would cut the person, it may be argued that he was either indifferent to that or he in fact intended that some form of injury be inflicted on the deceased, and, therefore, there was malice aforethought.

14. I am, however, not persuaded that the accused person intended to cause injury to the deceased or even to kill him. He reacted spontaneously to a situation that was unfolding before him, of an assailant who was armed with a panga, and who appeared intent on causing him or PW2 injury. In the chaos of the moment of trying to disarm him, the deceased suffered fatal injuries. The accused was, perhaps, careless or even reckless, or overreacted to the situation. But again, in the face of a chaotic situation, like that before the accused, there is usually no time to reflect on the best way out, and the person attacked often acts at the spur of the moment. I doubt that there was malice aforethought in the conduct of the accused person, and, guided by Wycliff Oluoch Odhiambo vs Republic, Criminal Appeal No 27 of 1998 (Gicheru, Tunoi & O’Kubasu, JJA), I find that the offence disclosed herein is manslaughter as opposed to murder.

15. Consequently, I, according to section 179 of the Criminal Procedure Code, cap 75, laws of Kenya, do find the accused herein guilty of the offence of manslaughter, contrary to section 202 of the Penal Code, as read with section 205 thereof, and I convict him accordingly under section 322 of the Criminal Procedure Code. For the purpose of sentencing, I hereby direct the Kakamega County Director of Probation and Aftercare Services to assess the antecedents of the accused person, and to get the views of the family of the deceased and the community, and file a report thereon within thirty (30) days.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4THDAY OF NOVEMBER 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kagai, instructed by the Director of Public Prosecutions, for the Republic.Mr. Kundu, Advocate for the accused person.