[2016] KEHC 1066 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CRIMINAL (MURDER) NO. 55 OF 2013

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

VERSUS

JAMES ONSERIO ACHOCHI........................................1ST ACCUSED

DANIEL OYARO RAGIRA Alias KEMBO KERATO....2ND ACCUSED

JUDGMENT

1. The accused, James Onserio Achochi and Daniel Oyaro RagiraAliasKembo Kerato, are charged with murder, contrary to S. 203 as read with S. 204 of the Penal Code, in that on the 11th January 2013, at Omokonge Sub-location Nyamache District within Kisii County, they jointly murdered Isaac Obita Ongera.

2. The case for the prosecution was that on the material date an election exercise involving a political party was underway at Mokonge Primary School when a commotion erupted due to a disagreement over a voting register. In the process, the deceased who was one of the election officials suffered injury after being stabbed with a knife on the stomach. He was rushed to hospital but passed away while undergoing treatment.

3. The two accused were among those taking part in the election and were said to have triggered the fracas that erupted and led to the death of the deceased. It was alleged that the deceased engaged in a struggle with the second accused who in the process handed over a knife to the first accused who then proceeded to stab the deceased with it.

4. Both accused were later arrested and charged with the present offence which they denied.

In defence, the first accused (James) said that the he knew nothing about the offence and was only awakened from his sleep at 4. 00 am on the material date and arrested by the area chief who was in the company of police officers.

5. The second accused (Daniel) said that he normally resided and worked at Elburgon Molo and only arrived at his home in Kisii on 10th January 2013. He attended the material elections on the following day but returned home after chaos erupted. He eventually returned to Elburgon but heard that a fight occurred at a place far from his Kisii Home. He was arrested in the month of May 2013, on allegations of murdering the deceased. He denied the allegations and could not say what happened to the deceased.

6. From the evidence adduced herein, it remained undisputed that the deceased died from an injury inflicted on him following a chaotic election exercise.

The post mortem report (P.Ex 1) indicated that the major cause of death was the injury to the stomach.

7. The issue arising for determination is therefore whether the two accused were responsible for the fatal injury inflicted on the deceased and if so, whether they acted with malice aforethought. Indeed, murder is established where a person who of malice aforethought causes the death of another (see, S.203 Penal Code).

8. In this case, both accused deny responsibility for the death of the deceased. The first accused implied that he was not even at the material scene when the deceased was injured.

The second accused conceded that he was at the scene at the material time but implied that he had nothing to do with what befell the deceased.

9. However, credible evidence was led by the prosecution through Evans Ongaki (PW 1), placing both accused at the scene. This witness went further to narrate the circumstances leading to the chaos and eventually the stabbing of the deceased with a knife on the stomach.

10. He (PW 1) was at the ‘epicentre’ of the chaos. He said that he was in the voting queue when the voting exercise was disrupted by unruly people who engaged in a fight and set upon the deceased who was responsible for issuing ballot papers. He (PW 1) categorically stated that the deceased was held by the first accused when stones started “flying” all over. It was then that the second accused handed over a knife to the first accused who in turn used it to stab the deceased. Both of them fled from the scene after the unlawful act.

11. Julius Nyabuto Rayori (PW 2), was the head teacher of Makonge Primary School where the voting exercise was taking place. He said that the deceased, a teacher in the school, was appointed as one of the polling clerks and when the exercise commenced at about 12. 55pm, it went on smoothly upto about 4. 00 pm when a large group of people appeared at the scene and shouts rent the air only to be followed by the fights and fracas.

12. He (PW 2) made attempts to calm the group but all in vain. Minutes thereafter, he saw the deceased exit a classroom holding his stomach. He appeared to be in a state of injury and was crying while stating that he was stabbed by the two accused. He (deceased) actually stated that he was stabbed by the first accused with a knife given to him by the second accused.

13. The statement by the deceased heard by the headteacher (PW 2) corroborated the incriminating evidence against the two accused by Evans (PW 1). It essentially amounted to a dying declaration which was further communicated by the deceased to his brother, Charles Nyangau Ongera (PW 3), when the deceased was admitted in hospital but ended up dying from his injury.

14. Despite the denial by each of the accused the evidence against then as based on the dying declaration and the direct evidence by Evans (PW 1) strongly indicated that they were responsible for inflicting the fatal injury upon the deceased. It was evident that they acted in concert with a common intention to cause bodily harm to the deceased following disagreements over voting materials. They used excessive force to express their annoyance with the conduct of the elections and in so doing they came into conflict with the law.

15. However, given the circumstances leading to the fatal injury of the deceased it is apparent that the accused did not have a predetermined mind to cause the death of the deceased. They were caught in the fracas that ensued and in the frenzy they acted not only spontaneously but also foolishly for a matter which they had nothing to personally gain from.

16. It is therefore the finding of this court that the charge established against the two accused by the prosecution is that of manslaughter rather than murder.

Consequently, both accused are hereby found guilty of manslaughter contrary to S.202 (1) of the Penal Code and are convicted accordingly.

[Delivered and signed this 1st day of November 2016]

J.R. KARANJAH

JUDGE

In the presence of

Mr. Otieno - State Counsel

Mr. Soire for accused

CC Njoroge

A1 & A2 – Present

State Counsel: Both Accused may be treated as first offenders.

J.R. Karanjah, Judge

Mr. Soire in mitigation: Accused are remorseful for the offence. They are both married with family members. They are the breadwinners to their families. They are first offenders. May the court exercise leniency on them.

J.R. Karanjah, Judge

Court:Accused are first offenders. Mitigation noted. Circumstances of the offence also noted. It was unfortunate but the accused had no justification in using unreasonable force against the deceased using an offensive weapon which they ought not have carried to an exercise of voting which was supposed to be peaceful. The fact that they had a knife showed that they were upto no good and were probably hired goons of some of those participating in the elections.

However, prior to sentencing, they prosecution may avail to the court victim impact statements from the family of the deceased.

Mention for further orders on 3/11/2016. Bond Extended.

J.R. Karanjah , Judge

1/11/16

3/11/2016

Before J.R. Karanjah – J

Njoroge CC

Mr. Otieno State Counsel

Accused 1 & 2 – Present

Mr. Soire for Accused

J.R. Karanjah , Judge

State Counsel: We hereby submit victim impact statements from the deceased wives and brothers.

J.R. Karanjah , Judge

Court:Victim impact statements considered. It would appear that the death of the deceased has occasioned great loss to his family both emotionally and economically.

The two accused shall each serve 15 years imprisonment.

J.R. Karanjah , Judge

3/11/16