[2021] KEHC 5149 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

CRIMINAL CASE NO. 10 OF 2019

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

versus

LUCAS MWITA MACHERA................................................................................ACCUSED

JUDGMENT

The accused Lucas Mwita Machera was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code as per the information dated 14/10/209.

The particulars of the charge are that on 26/7/2019 along Nyabukarange – Ikerege Road, Wangisasa village, jointly with others not before the court, murdered Festo Mwita Machera.

The accused denied the offence and the case proceeded to full trial with the prosecution calling a total of six (6) witnesses. The accused gave unsworn evidence and called one witness.

PW1 Margret Nyahiri Mwita, was the deceased’s wife. PW1 identified the accused as a son to her uncle. PW1 recalled that on 26/7/2019, her husband left the home to go to Wangisasa Centre to get medicine for one of her sick children. After about thirty (30)minutes she heard him screaming that Jacob was killing him and ran to the scene which was about 50 metres from her house; that it was about 7:00 p.m and she saw three people, John Mwita Machera and Jacob Mwita Machera and the accused Lucas. She said that by then darkness had not yet set in and that she also had a torch, which she shone at them when about three metres away; that accused was holding the deceased by the waist, John held the hand while Jacob cut the deceased’s hand; that the other two who are accused’s children vanished since the incident; that she raised alarm and people responded by going to the scene. Some of those who came are her mother in law Leah Ghati and Mogesi Marwa Wang’eizi her brother in law. The deceased was rushed to Ikerege Hospital where he was pronounced dead on arrival.

PW1 was aware that there existed a land dispute between the deceased and the accused person and the other two which is still at Kehancha law Court; that her mother-in-law Leah Ghati Mwita had a case with the deceased; that when the deceased raised an alarm and shouted that Jacob was killing him she knew that there is only one Jacob in the village, accused’s son.

PW2 Dr. Winda Victor Omollo a medical doctor from Migori County Referral Hospital performed the post mortem on the deceased and found that he sustained a deep cut on the upper arm 7cm, left thumb and waist joint; that the brachial artery was cut and edges of the cut indicated that the weapon used was sharp. The doctor formed the opinion that the cause of death was cardiorespiratory arrest caused by excessive bleeding due to the deep cut on the arm.

PW3 John Mwita Marwa alias Nahashon or Mogesi identified the accused as his uncle whereas the deceased was his older brother. He recalled that he was at his home about 8:20p.m when he heard screams from the main road, picked a torch and simi and rushed there where he heard somebody calling Mogesi to run and help him because Jacob was killing him. On arrival at the scene, he flashed the torch, saw accused and his two sons; that accused held the deceased around the waist, while Jacob cut the deceased’s right hand; that John also held deceased’s hand. Thereafter, the assailants fled. They rushed the deceased to hospital; that the deceased could not talk by then and was pronounced dead on arrival at the hospital.

On 30/7/2020, he identified the deceased’s body to the Doctor before post mortem was done. He admitted that there existed a land dispute between his family and the accused’s family.

PW4 Ghati Marwa Ng’era, identified the accused as a son to her brother. She recalled 26/7/2019 while at home, she heard the deceased’s voice, screaming asking for help as Jacob was killing him. She knew Jacob to be accused’s son; that it was about 7:00p.m and there was moonlight. She took her torch and rushed to the scene. She shone her torch at the assailants and saw accused holding the deceased around the waist, Jacob cut the hand of the deceased while John cut the palm and pushing the hand towards the back. She said PW1 was the first at the scene. PW4 admitted that there exists a land dispute, that she was given land by her parents and so was accused; that accused sold his and now wants to evict her and that accused had sent threats to her and the deceased and that the accused were unhappy about the deceased giving evidence in a case against them.

PW5 CPL James Olago a scene of crime officer received four coloured photographs from PC Kyalo which he certified. They were photographs of the murder scene.

PW6 Sgt. Samson Kataka of DCI Kehancha, recalled 26/7/2019 when he accompanied the OCS Kehancha to a scene of crime at Ikerege Centre at a Health Centre. He found the deceased’s body which had deep cuts on the right shoulder, another on the right hand and palm of left hand. They also visited the scene of crime along the road which they documented. On 27/7/2019 he recorded statements from witnesses, who mentioned Lucas Mwita Machera, Jacob Mwita Machera and John Mwita Machera as the assailants. He arrested accused on 23/8/2019 at Nyabukarange Health Centre. He attended post mortem on 31/7/2019. He learnt that there was a long standing land dispute between accused’s family and that of Ghati Moraa Mongera and that there was a succession cause at Kehancha Law Courts.

When called upon to defend himself, the accused gave unsworn evidence. His defence was an alibi; that on 25th he left home to go to Rapogi where there was a memorial for his grandmother; that he slept there on 25th and 26th and went back home on 27th. He went to their Health Centre where he worked and on arriving home, was informed there was a murder. He continued with his normal life till 26th August when he was arrested when chairing a meeting at the health facility. He denied knowing about the offence but that he was charged because of a land dispute that existed; that the person who has built on his land wants him jailed so that he can take the land.

The accused called DW2 Nathan Senewa Omido as a witness. DW2 recalled that on 25/7/2019 he had a memorial for his deceased wife at his home in Rapogi; that the accused who is married to his daughter arrived at his home on 25/7/2019 at 6:00p.m; The celebration was on 26th and ended at 5:00p.m; that his children spent the night again and left on 27th. In cross examination DW2 denied knowing the accused’s children John and Jacob. He had not been aware of the land disputes till this case.

Both counsel for the defence and prosecution filed submissions which I have taken into consideration together with the evidence tendered by both sides. This being a murder charge under Section 203 of the Penal Code, the prosecution has to prove beyond reasonable doubt the existence of the following ingredients;

1) Proof of the deceased’s death;

2) that the accused committed the unlawful act or caused the omission which caused the death of the deceased; and

3) that the accused had malice aforethought.

Death of the deceased:

The death of the deceased was proved by the evidence of PW1, PW2, PW3, PW4. PW5. PW1, PW3 and PW4 saw the deceased being assaulted and soon thereafter, helped rush him to hospital but he succumbed before he was attended to. PW2 performed the postmortem on the deceased after the body was identified by PW3. PW2 produced the post mortem report (PEXHB 1) which confirmed that the deceased died of cardiorespiratory arrest due to excessive bleeding which was caused by sharp forced trauma to the upper arm.

Whether Accused caused the deceased’s death:

PW1, the deceased’s wife told the court that the incident occurred about 7:00p.m Though she claimed that there was still some light, she carried her torch. PW3 and PW4 who claim to have responded to the deceased’s screams estimated the time to have been 8:00a.m or 8:30a.m when they ran to the scene which was very near their homes. Having considered the evidence of the three witnesses, I believe that darkness had set in because all of them carried torches. It means that conditions for positive identification or recognition may have been difficult and such evidence of visual identification at night must be approached with great care and caution (see Waithaka Chege vs Republic (1979) KLR 271. In Abdalla Bin Wendo & Another vs Republic (195) 20 EACA 166)the court held that before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be watertight. In such a case, the court must make enquires as to the presence and nature of light, the intensity of the light, its location, source of the light, time taken by the witnesses to observe the assailant; the distance between the witness and the assailant etc – See R=vs= Turnbull (1976) ALL ER 549.

In this case, PW1 rushed to the scene with a torch. She flashed the torch at the assailants. She said she was only three metres away. PW3 and PW4 also went to the scene with torches after they heard the deceased shouting for help. All the three witnesses stated that they shone their torches at the three people who had attacked the deceased and saw accused holding the deceased by the waist, John held the hand of the deceased and Jacob did the cutting. In addition PW1, PW3 and PW4 all stated that they heard the deceased shouting for help and saying that Jacob was killing him. PW1 said she only knew one Jacob in the village, accused’s son. The accused is not a stranger to the witnesses. They belong to the same family, PW4 said that accused is her brother’s son and the deceased was her son. They are close relatives who lived together and it would not be difficult to recognize them under the light of a torch and at close proximity of 3 metres. In Anjononi vs Republic (1980) KLR 59, at page 60 the court of Appeal held as follows:-

“Recognition of an assailant is more assuring and reliable than identification of a stranger because, it depends upon the personal knowledge of the assailant in one form or other.”

In the instant case, I am satisfied that the witnesses (PW1, PW3 & PW4) being close relatives of the accused, and being in such close proximity were able to recognize the accused.

The accused raised an alibi defence that on 26th July 2019 he was at Rapogi at DW2’s home. This defence was raised for the first time in his defence. However, the court is that the accused does not assume the burden of proving the alibi. See Ssentale =vs= Ugandan (1968) 36 EA. The prosecution always bears the burden of dislodging the alibi and proving the accused’s guilt. See Wang’ombe vs Republic (1976-80) 1KLR 1683.

An accused who wishes to raise an alibi defence should raise it at the earliest opportunity to enable the prosecution to investigate its truth or otherwise. In Republic =vs= Sukha Singh s/o Wazir Singh & others (1939)6 EACA, 145, the court had this to say:-

“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not bee preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stooped.”

See also Festo Androa Asenua =vs= Uganda Criminal Appeal No. 1 of 1998 where the court arrived at same observation as above, as follows:-

“ We should point out that in our experience in criminal proceedings in this Country, it is the tendency for accused persons to raise some sort of alibi always belatedly when such accused persons give evidence. At that stage the most the prosecution can do is to seek adjournment of the hearing of the case and investigate the alibi. But that may be too late. Although for the time being there is no statutory requirement for an accused person to disclose his case prior to presentation of his defence at the trial, or any prohibition of belated disclosure as in the UK statute cited above, such belated disclosure must go to the credibility of the defence.”

Although the accused raised the alibi defence late during the defence but that does not lighten the burden placed on the prosecution to disprove the said alibi sure the prosecution did not seek an adjournment to try and disprove the alibi, the court has to weigh the prosecution evidence as against that alibi.

The accused said that he went to the memorial of his grandmother at Rapogi. The accused called DW2’s to confirm the said alibi that indeed accused was at his home in Rapogi. However, what I found curious is that DW2 said accused went to attend the memorial of DW2’s wife while accused claims to have gone to attend the memorial of his grandmother. Surely, accused must have known whose memorial service he was going to attend. The contradiction in the evidence of the accused and DW2 is telling. What made it more curious is that PW1, PW3 and PW4 identified the other suspects at the scene of the murder as the two sons of the accused who have since disappeared. To this court’s surprise DW2 denied knowing any of accused’s other children except those of his daughter is married to accused. It seems DW2 did not know much about accused. He did not know that accused had even had a long-standing land dispute with PW4 and her family. Either PW2 came to the court to protect the accused or he does not know accused at all. I am more convinced by the testimonies of PW1, PW3 and PW4 that accused was at the scene of the crime with his two sons, that is the report that was made to the police on the next day. PW1, PW3 and PW4 placed the accused at the scene of crime and I am satisfied that he was one of the assailants. The alibi was an aforethought and untrue.

Whether the accused had malice afterthought.

Section 206 of the Penal Code defines malice afterthought as:-

“Malice 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) knowledge 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 cause;

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.”

In Republic =vs= Tubere s/o Ochen (1945 12 EACA 63,the Court of Appeal held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, and the conduct of accused during and after the attack. PW1, PW3 and PW5’s evidence was that accused held the deceased by the waist as one of his sons cut the deceased’s hand. The injury to the said hand were so serious that they led to deceased bleeding to death on the same night even before he reached the hospital. I am satisfied that the accused actively took part in assaulting the deceased together with his sons. Their actions are proof that they intended to cause the deceased grievous harm or cause his death.

In the end, I am satisfied that the prosecution has proved beyond any doubt that accused with others not before the court, caused the death of the deceased with malice aforethought. I find him guilty as charged and he is convicted accordingly.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 15TH DAY OF JULY, 2021

R. WENDOH

JUDGE

Ruling delivered in the presence of:-

Mr. Kimanthi for State Counsel

Mr. Nyawencha for accused

Ms Nyauke court assistant