[2015] KEHC 480 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO.43 OF 2012

REPUBLIC ….……………………………………………….…PROSECUTOR

VERSUS

JOSEPH KALABA KIDAKI……..……........……….........................ACCUSED

JUDGMENT

1. The accused Joseph Kalaba Kidaki is charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars are that on the night of 1st June 2012 at Nyaga Sub location Githunguri District Kiambu County murdered Alfred Joshua Mahindu.

2. The prosecution advanced its case through the testimony of 9 witnesses. The facts which emerged from their testimony are that the accused and the deceased were acquaintances who hailed from the same rural area in Western Kenya and shared rented single room accommodation in Nyaga village, Kiambu from where they engaged in casual labour for a living. Prior to the incident, the deceased was said to have stolen a panga belonging to the accused. On the material date when the accused asked for his missing panga, a violent confrontation ensued in which the accused is said to have attacked and fatally wounded the deceased in their one roomed accommodation. The accused thereafter went to Githunguri Police Station and reported that he had fought with a friend. He was put in the cells for further interrogation and was later investigated and charged for murder.

At the close of the prosecution case, the accused was found to have a case to answer and was put on his defence. He gave sworn testimony. He told the court that he had offered to accommodate the deceased as they came from the same rural home. He said that on the material day he asked the deceased about his missing panga and the deceased turned violent and whipped out a panga to slash him. That when he tried to escape, the deceased prevented him and that was when he picked a piece of wood and hit the deceased in self defence.

Parties made submissions both at the close of the prosecution case and at the conclusion of the trial. The prosecution’s submissions basically summarized the evidence. Learned prosecution counsel Mr. Okeyo also added that the accused attacked the deceased when the said deceased was drunk and then threw the murder weapon i.e. a club (popularly referred to as rungu) into a pit latrine to conceal evidence. On his part defence counsel Mr. Gachau submitted that the deceased was given to violence and that the accused only acted in self-defence on the fateful day.

Having considered the law, the evidence and the submissions tendered by learned counsel, I consider that the main issues in this trial to be:-

Whether the prosecution has proved the unlawful death of the accused

Whether the evidence before court clearly links the accused to the death of the deceased.

Whether the defence of self-defence is available to the accused; and,

Whether the accused had the requisite mens rea to sustain a charge of murder.

(i)The death of the deceased and cause of death

The evidence of Purity Asiko (PW4) is material in placing both the accused and the deceased at the scene. Purity Asiko was aged 15 at the time of the incident. The court formed the opinion that she was of sufficient knowledge to have comprehended the happenings then and to testify in court. Purity Asiko told the court that she was familiar with both the deceased and the accused. Her family lived in the same plot with them. On the material day 1st June 2012 at around 2p.m. she was at her home looking after her younger siblings when her friend one Lilian came around. Shortly Mahindu (the deceased) came and chased her friend away.

He then went into their room. Jose (the accused) arrived after him and also entered the room. Mahindu sent Jose to go and get him water and while Jose was away, Mahindu took a panga and left for Kwa Maiko (the shopping centre). When Jose came back with the water he asked where Mahindu had gone. Then he asked her for a panga which she gave him and he left. Meanwhile Mahindu came back with bananas and entered their house. Shortly, Jose also came back and entered the room while asking Mahindu for his panga. It was then that the witness heard someone being struck or hit twice. She did not hear any screams. She saw Jose come out of the room with a stick. He shut the door behind him and asked her for water to wash his slippers. He told her he was going to look for the relatives of the deceased to come and take him away. After Jose walked away, Purity Asiko, and one Meshack opened Mahindu’s door and they saw Mahindu lying down flat on his face with blood on his face. They raised an alarm and people came. The police also came later.

PW1 was Peter Kahindu Okweba. He identified himself as the brother of the deceased. He told the court that he received a call from one Enosh Ateyu who informed him that his brother (the deceased) had been involved in a fight with the accused whom he referred to as Obusuma. He learnt from Enosh that the deceased was dead. He immediately went to the house and found the deceased lying on the floor with injuries on the face and nose. PW2 Efford Manyongi Abenge, a cousin to the deceased identified the body to the pathologist at the mortuary on 8th June 2012. He told the court that he had earlier escorted the body to the mortuary and observed that the deceased appeared to have been hit on the head with a rungu.

The investigating officer (PW 8) corroborated the fact of the deceased’s body having been collected by the police from the accused’s room. Further and conclusive evidence of the death of the accused was given by Dr. Njeru (PW7) who is the pathologist who conducted the post-mortem. In her testimony before court, Dr. Njeru stated that the body had multiple lacerated wounds on the head, a wound on the nose and a fracture of the nasal bones. It also had a lacerated wound on the upper lip and fractures on the upper and lower jaw. She observed other wounds on top of the head which were 5-9cm long. Internally, the body had fractures on the frontal bones of the skull and bleeding into the brain. She formed the opinion that the cause of death was head injury resulting from blunt force trauma consistent with assault.

(ii)Whether the accused was responsible for the death of the deceased.

There was no eye witness who saw the accused strike down the deceased. However, there is strong circumstantial evidence that points to the accused. In Sawe V. Republic, Criminal Appeal No. 2 of 2002 (2003) eKLRthe court of Appeal set out the parameters on the use of circumstantial evidence. It stated as follows:- “In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of any explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden which never shifts to the party accused.”

In the present case, Purity Asiko (PW4) whose evidence I have already outlined, told the court that she saw both the accused and the deceased enter their shared accommodation albeit at different times. She was outside her home within the same plot. She interacted with the accused who initially asked her for a panga and later for water. She saw him enter the room in which the deceased was already. She heard two strikes and then saw the accused walk away with a stick.

Purity Asiko’s evidence with respect to placing the accused at the scene is corroborated by the investigating officer PC Erastus Matwanga who testified as PW8. He told the court that the accused surrendered himself at Githunguri Police Station after the incident and reported to have been involved in a fight with his friend. PC Benard Odongo Onyango (PW3) was at the Githunguri Police Station around 8p.m. when the accused reported at the police station that he had been assaulted. PC Onyango stated in his testimony that he observed that the accused had no visible injuries then. He gave him a place to sleep in the cell. Shortly thereafter, the OCS called the station to inform PC Onyango that he had established that a report had been made at the Ngewa Police base that a person had been assaulted and that the suspect had fled the scene. He directed PC Odongo to hold the accused for interrogation for murder.

From the above, it is clear that the accused was at the scene of crime and that he was the one who fatally wounded the deceased. Other than the prosecution evidence, the accused admitted in his own testimony that he was indeed at the scene and that he hit the deceased. He stated in his sworn testimony that he was home at around 6p.m. and that when the deceased arrived at 6. 30p.m. he asked him about his missing panga. A quarrel and a fight ensued in which he (the accused) hit the deceased with a piece of wood. He describes what happened thus:- “I removed a piece of wood to defend myself. I lifted to hit him on the hand but he bent so I hit him on the back of the head. He fell on me. I was shocked I went to the police…….” This admission by the accused confirms the prosecution’s case that he was the one who assaulted and fatally wounded the deceased.

(iii) Whether the accused acted in self-defence

The accused while admitting that he hit the deceased with a rungu, stated that he only did so in self-defence. He told the court that when he asked the deceased for his (accused’s) missing panga, the deceased pulled a panga from under his jacket and tried to cut him but he evaded. That he tried to escape but the deceased blocked him. As a result he picked a piece of wood and aimed to hit the deceased on the hand but unfortunately the blow landed on his head as he was already bending. The accused further stated in his defence that he threw the piece of wood into the pit latrine and went to Githunguri Police Station. He said that he avoided going to Ngewa Police post which was only a short distance away from his house for fear that the local residents might cause trouble to the officers there as had happened in an earlier incident where the locals had threatened to lynch a suspect who was being held at the post.

With the admission by the accused that he hit and fatally wounded the deceased, subsequent submissions by his defence counsel wholly centered on the issue of self-defence. Learned counsel cited Section 17 of the Penal code as allowing the use of force in defence of person and property. He cited the case of R. V. Andrew Mueche Omwenga Criminal Case No. 11 of 2008 which cited the principles laid down in Palmer Vs. Republic [1971] A.C. 814 that “it is good law and good sense that a man who is attacked may defend himself; that the type of defence would be determined by the circumstances; and, that the test to be applied in determining whether or not a particular reaction was justified, must be a subjective one.

In the present case, evidence shows that the accused was in an agitated state. He was angry about the theft of his panga by the deceased, a person he had welcomed into his home out of the kindness of his heart. Evidence by PW4 and the accused himself also shows that the deceased was drunk when he came home. Indeed PW2 and PW3 who knew the deceased well told the court that the deceased was given to drink and quarrels. According to the evidence of PW4 the accused entered the house armed with a rungu. According to the accused, he was not armed but picked a piece of wood with which he hit the deceased. Neither the panga the accused alleges the deceased to have been armed with nor the club (rungu) that PW4 is said to have had while entering the house were recovered by the police. For the club or rungu, PW4 says that she saw the accused walk away with it. The accused himself states that he threw it into the pit latrine before going to Githunguri police station. PW4 also stated that she heard 2 strikes. In seeking to prove that the deceased was armed with a panga, the defence sought the enlargement of the photographic evidence of scene of crime. What became evident however from the enlarged photographs was that there was a kitchen knife on the floor where the deceased’s body lay. The prosecution argued that the presence of the knife was not strange as the room served as a kitchen as well.

From the above, it is evident to me that the accused was armed. He was seen by PW4 walking in with a club which he himself admits to have thrown into a pit latrine. He must have been the aggressor. There is no evidence that he was attacked. Indeed when he surrendered himself to the Githunguri Police Station, and said that he had fought with his friend, PW3 observed that he had no injuries. Circumstances before and after lead me to the conclusion that the accused must have been the aggressor. I therefore reject the defence of self-defence. The evidence does not support the proposition that he was in any imminent danger. To the contrary the evidence demonstrates that he was the aggressor.

Whether or not the accused had requisite mens rea

Having dismissed the defence that the accused acted in self-defence, did he have intention to kill the deceased? Section 206 of the Penal Code provides that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:-

an intention to cause the death of or to dogrievous harm to any person, whether that person is the person actually killed or not;

knowledge that the act or omission causingdeath 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;

an intent to commit felony

an intent 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.

The Court of Appeal has interpreted this Section in many of its decisions. In Nzuki Vs. Republic (1993) KLR the court stated inter alia:-

“No doubt, if the prosecution prove an act the natural consequence of what should be a certain result and no evidence or explanation is given, then the Court may, on proper discretion, find that the accused is guilty of doing the Act with the necessary intent, but if on the totality of the evidence there is room for more than one view as to the intent of the accused, the court should direct itself that it is for the prosecution to prove the necessary intent to its satisfaction, and if, on review of the whole evidence, it either thinks that the intent did not exist or it is left in doubt in respect thereof, the accused should be given the benefit of that doubt”.

Evidence before court shows that the accused had invited the deceased into his single room accommodation to help him out as he had no place to stay. That in the course of time, the deceased acquired the habit of being drunk and stealing which offended the accused. Their relationship became strained and worsened when the deceased allegedly stole the accused’s panga. There is ample evidence to suggest that the quarrel over the panga escalated into a fight which led to the death of the deceased. The totality of the evidence before court however, does not prove beyond reasonable doubt that the accused had intention to kill the deceased. I have doubt in my mind that he intended to eliminate the deceased when he walked into the room and demanded his panga from the deceased. The law requires that I resolve such doubt in favour of the accused.

In the premises and for the reasons stated above I find the accused guilty of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and convict him accordingly.

Orders accordingly.

Judgment delivered and dated at Nairobi this 24th day of September, 2015

R.LAGAT-KORIR

JUDGE

In the presence of:

………………………………………….: Accused

…................................................: Court clerk

...................................................: For the Accused

...................................................: For State