[2022] KEHC 12699 (KLR)

Republic v Juma (Criminal Case E22 of 2021) [2022] KEHC 12699 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12699 (KLR)

Republic of Kenya

In the High Court at Busia

Criminal Case E22 of 2021

JR Karanja, J

June 16, 2022

Between

Republic

Prosecution

and

Amidu Toil Juma

Accused

Judgment

1. The court was through the information dated 16th November 2021 filed herein by the Director of Public Prosecution (DPP) informed that the accused, Amidu Toil Juma, faces a charge of murder, contrary to S.203 as read with S.204 of the Penal Code, in that on the 4th November 2021 at Malaba township, Teso North within Busia County, murdered Brian Nganga (deceased).

2. On appearance before this court on the 30th November 2021, the accused denied the charge and the matter proceeded to a full hearing.

3. The case for the prosecution was that on the material 4th November 2021 at about 6. 20p.m, a brother of the accused, Reuben Otengo Kabinga (PW1), on receving telephone calls from strangers proceeded to the Apex hospital in Malaba town where he found the accused and the father or uncle of the deceased, Carlet Mumanyo Otengo (PW 2).

4. The deceased was at the time lying down on a hospital bed in a state of injury. The hospital administrator, Esther Masake (PW 3), indicated that she directed the deceased to be taken to a doctor when he was brought to the hospital, but he succumbed to his injury.

5. The matter was reported to the police and Sgt Samson Biwott (PW 4) of the Directorate of Criminal Investigations (DCIO) Teso, commenced necessary investigations. In the process, he gathered that the accused and the deceased were friends and on the material date they engaged in a brawl which ended with the accused allegedly stabbing the deceased with a knife which was never recovered.

6. The officer (PW 4) on conclusion of the investigations preferred the present charge against the accused who in his defence continued to deny the charge and implied that the deceased was fatally injured after stabbing himself with a broken bottle during a scuffle between them.

7. The accused indicated that on the material date the deceased was intoxicated and disorderly such that he asked for the accused’s phone to engage in a betting game, but proceeded to grab the phone from the accused thereby causing it to fall down and crack. Thereafter, the deceased picked a bottle and broke it by banging it hard on the ground. He then picked a piece of the broken bottle and charged at the accused with the intention of stabbing him with the broken piece.

8. The accused indicated that he put up a resistance and in the process the deceased fell down and was stabbed by the broken bottle which he was still holding with his hand. He (accused) sought help from a motor cycle Taxi operator (boda-boda) and took the deceased to the hospital where he passed away.

9. The accused contended that he did not stab the deceased with a knife as alleged. He dismissed the knife narrative and said that the offending object was a broken piece of bottle.

10. The accused denied that the deceased and himself were taking an illegal substance (bhang) at the material time of the incident and contended that there was no grudge between themselves and were indeed friends.

11. As may be deciphered from the evidence in its totality, the fact that the deceased died from a serious injury inflicted upon him on the material date was not disputed.

12. Indeed, the post mortem report (P.Ex 1) prepared and signed by a medical officer indicated that the cause of death was pericardial hemorrhage and mediastinal hematomas due to stab injury right in the heart.

13. [10] The doctor found that the stab wounds of the left chest were about 1 x 2cm and were most likely caused by a knife. This finding clearly overruled the existence of any other sharp object such as a broken piece of bottle as the murder weapon.

14. Be that as it may, the issue for determination in this case was whether it was the accused who inflicted the fatal stab wound upon the deceased.

15. Apparently, the prosecution did not offer any direct evidence against the accused in showing that he was the person who stabbed the deceased as he was not seen by anybody while assaulting the deceased.

16. It was only the accused and the deceased who were at the scene at the material time. It was therefore not expected that a third party would surface from nowhere.

17. Therefore, the only living person expected to narrate to the court the circumstances and events which led to the death of the deceased was the accused. Naturally, he was not expected to narrate anything unfavourable to himself and that is why he introduced the narrative of a broken piece of bottle as being the suspected murder weapon.

18. The deceased is since gone and could not narrate his story from the grave. “Dead men tell no tales” but the deceased is entitled to justice from wherever he is consigned by providence.

19. Although no direct evidence was provided by the prosecution against the accused, there was in existence strong circumstantial evidence which placed the accused as the offender to the exclusion of any other person or even to the exclusion of any accident or misadventure given that there was a suggestion from the accused that the deceased may have stabbed himself with a broken piece of bottle during a scuffle or brawl between them.

20. It was evident that the accused was the last person with the deceased before his death and that the two were involved in an unnecessary brawl over a cell phone which brawl took an ugly turn with the stabbing of the deceased by no other person but the accused who on realizing his costly mistake rushed the deceased to the hospital, but all in vain as the injury inflicted upon him was quite deep and directed at the heart, a vital body organ without whose function a human being or even an animal cannot survive.

21. The seriousness and degree of the injury was a clear reflection of the accused’s viciousness in using excessive force against the deceased with a sharp object akin to a knife rather than an accidental occurrence precipitated by the deceased.

22. However, it is evident that the accused’s unlawful act against the deceased was not of malice aforethought and was most likely the result of the illegal substance that both the accused and the deceased were fond of smoking and sniffing as per police reports against them.

23. Indeed, the deceased’s own uncle (PW 2) stated herein that the accused was known in their locality as a rowdy individual and drug taker.

24. Nonetheless, the defence herein by the accused was clearly discredited and disproved by the circumstantial evidence against him which was more consistent with his guilt than innocence.

25. It is therefore the finding of this court that the deceased was assaulted and occasioned fatal stab injury by the accused. The prosecution case was thus established and proved beyond reasonable doubt against the accused not for the offence of murder but manslaughter, contrary to S.202 (1) of the Penal Code.

26. The accused is hereby found guilty of manslaughter and is convicted accordingly.

J.R. KARANJAHJUDGEDELIVERED & SIGNED THIS 16TH DAY OF JUNE 2022