[2022] KEHC 14138 (KLR)

Republic v Maganya (Criminal Case E009 of 2021) [2022] KEHC 14138 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14138 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case E009 of 2021

RPV Wendoh, J

October 19, 2022

Between

Republic

Applicant

and

Calvince Odondi Maganya

Respondent

Judgment

1. By the information dated 1/7/2021, Calvince Odondi Maganya, the accused, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the charge are that on 17/6/2021 at Lisori village, Winam Sub Location in Nyatike Sub County, in Migori County, murdered Shule Ochieng Amolo.

3. The accused denied the offence. The case proceeded to full trial with the prosecution calling a total of nine (9) witnesses.

4. PW1 Beltina Shule Ochieng was the wife of the deceased. She had been married to the deceased for seven months and knew accused as a relative of the deceased. She recalled that on 17/6/2021 about 6:00p.m She was in the sitting room of her mother in law with the mother in law, Margret and Monica Atieno while deceased was seated outside on the veranda; that accused came to the door and started hurling abuses at the deceased and deceased told him to leave; that accused left and soon returned back with a knife and threatened to kill them; that the deceased told accused not to kill anybody; that accused then chased the deceased towards the maize farm. PW1 then heard the deceased crying telling ‘Atula’ not to kill him. PW1 stated that accused’s alias name is ‘Tula’. PW1 followed and found deceased had already been stabbed and accused ran off. PW1 raised alarm and people came including her mother-in-law and brother-in-law. She said that she lifted the deceased and noticed he was stabbed on the chest. The deceased was taken to hospital on a motor cycle and she followed but found him already dead. She denied knowing of any dispute between accused or deceased.

5. PW2 Monica Otieno, a sister in law of the deceased, had known the accused for two years. She also knew him as ‘Atula’. She recalled 17/6/2021 while with her mother in law Margret, and PW1 in the sitting room when accused went there while armed with a knife abused them and threatened to kill them; that when deceased told him to stop the abuses and leave, he chased the deceased towards the maize farm, and by the time she reached where deceased was, he had already been stabbed PW2 saw deceased had a stab wound on right side of chest; that the deceased was ruished to hospital on a motor cycle and they later heard he had died.

6. PW3 Clinton Athumba Ochieng, a brother to the deceased identified accused as Calvince Atula Maganya whom he had known for over ten (10) years . He recalled on October 17, 2021, when at his brother’s house, he heard the brother say “amenidunga” meaning he has stabbed me.”; that the voice emanated from the maize farm and he went there and found PW1 and PW2 already there and deceased was bleeding profusely. He noticed an injury to the left side of the deceased’s chest, called for a motorcycle and took him to hospital at Matrao where the deceased was pronounced dead on arrival and his body was taken back home. Later, it taken to the mortuary. He denied seeing accused stab deceased.

7. PW4 Jerry Oketo Omulo testified that Shule Ochieng was his grandson and he knew the accused for about twenty five (25) years. On 21/6/2021, he identified the deceased’s body to the Doctor for purposes of post mortem and noted injuries to the upper chest.

8. PW5 Kennedy Otieno a brother to the deceased recalled that on 17/6/2021 he came back home about 5:30p.m but learned that his brother was stabbed, taken to hospital but died and the body of the deceased was returned home and he saw an injury to right side of his chest. He also denied knowing of any dispute between accused and deceased.

9. PW6 Dr. Edwin Otiyo of Migori County Referral Hospital performed the post mortem on the deceased after the body was identified by Jerry Okeyo Omulo (PW4) and another. He found clotted blood on the anterior chest wall and face. He found a horizontal supraclavicular, deep laceration 8cm long and 2cm on the midline on the anterior chest wall; that it penetrated the thoracic cavity, the sternum, into the space between the two lungs; that the likely weapon used was a sharp object; that there was blood in the mediasterrum. He found the cause of death to be bleeding from the ascending aorta secondary to a penetrating chest injury due to a stab wound. He produced the post mortem as a exhibit.

9. PW7 Mukolwe Leaonard of Got Achola Police Post was called by the Chief of the area on 17/6/2021 about 6:40p.m who reported an assault case. He rushed to Lisori to the home of deceased and found he was already dead. He got information that the suspect was arrested at the lakeshore and he rearrested him. He found the deceased’s body in the mother’s house.

10. PW8 CPL Jack Oturi was with PW7 when they rushed to the scene of murder, or and found accused arrested by members of public at the Lakeshore. He saw the scene of crime was near deceased’s home.

11. PW9 CPL Jonathan Katingu of DCI Nyatike recalled that on 17/6/2021, he received a call from his boss who assigned him to investigate this case. He reached the scene, at deceased’s home, found the deceased’s body in the mother’s house and the body had an injury to the right side of the chest. The scene had been visited by other officers from Got Achola Police Post. He went back to the scene, drew the sketch plan and removed the body to Migori Mortuary. He escorted accused from Got Achola to Maclader Police Station and later he was charged after he was examined and found to be fit to stand trial. He recorded statements of witnesses.

12. When placed on his defence, the accused opted to give a sworn defence in which he denied knowing why he was charged; that on 17/6/2021, he was on the Lakeshore preparing to go fishing when he heard screams from his home; that while doing his work the deceased’s brother and Uncle went to ask him if he head seen Shule (deceased) since morning but he denied; that deceased was his friend and he used to go fishing with deceased but not that day; that the deceased’s brother called Kennedy started to beat him alleging that he knew where the deceased was; that he fell in the water and he stayed in the water swimming till police came, placed him in a boat and took to the shore, arrested and charged him. He denied stabbing the deceased. He denied ever disagreeing with PW1 and PW2.

13. The accused faces a charge of murder under Section 203 of the Penal Code. It is the duty of the prosecution to prove beyond reasonable doubt, the following ingredients in order to found a conviction.1)Proof of death;2)Proof that the accused caused the act unlawful or omission that resulted in the death of the deceased;3)Proof that accused possessed malice afterthought.

Proof of Death: 14. PW1, PW2, PW3 and PW5 were the first people to see the deceased’s body after he died after being stabbed. PW7, PW8 and PW9 found the deceased’s body lying in his mother’s house and removed it to the mortuary. PW4 identified the deceased’s body to PW6, the Doctor who performed the post mortem. PW6’s findings were that there was a stab wound to the deceased’s chest. He corroborated the testimonies of all the witnesses who saw the deceased’s body. PW6 further found that the stab wound had penetration the thoracic cavity, penetrated the sternum and injury was caused by a sharp object. That finding further corroborated PW1 and PW2’s testimonies that they saw accused chase the deceased while armed with a knife. PW6 formed the opinion that the cause of death was bleeding from ascending aorta secondary to the penetrating injury due to a stab wound. There is no doubt that the deceased died following a stab injury to his chest.

Who inflicted the injury on the deceased. 15. The accused was not a stranger to PW1, PW2, PW3, PW4 and PW5. He was a neighbour. In his defence, accused admitted that he was a friend to the deceased and that they used to go fishing together. He denied that there had ever been any disagreement between him and the deceased. PW1, PW2, PW3 and PW5 also denied knowing of any dispute between the accused and deceased.

16. None of the witnesses saw the accused actually stab the deceased. The prosecution’s case therefore turns on circumstantial evidence. In the case of Ahamad Abolfathi Mohammed & Another vs. Republic (2018) eKLR the Court of Appeal had this to say of the place of circumstantial evidence.However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

17. In the case of R vs. Taylor Weaver & Donovan (1928) Criminal Appeal 21 the Court held that circumstantial evidence is often the best evidence.

18. In the case of Abang’a alias Onyango vs. Republic Criminal Case 32 of 1990, the Court set out three conditions to be satisfied if circumstantial evidence e is to be relied upon to found a conviction. The court said:-

19. It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

20. In this case, circumstantial evidence is what PW1 and PW2 told the court that accused came to their home, armed with a knife, abused the deceased, PW1 and the deceased’s mother and when the deceased told him to stop, the accused then chased the deceased towards the maize farm. PW1 and PW2 followed where the two ran only to find deceased stabbed on the chest and fallen on the ground, but the accused was nowhere.

21. This incident occurred about 5:00p.m and the issue of identification is not in dispute. After Accused chased the deceased, a few minutes later, deceased was found stabbed on the chest and writhing in pain. Section 111 and 119 of the Evidence Act the law places a duty on the accused to explain some facts peculiarly within his knowledge.

22. Section 111 and 119 provides follows:(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon himProvided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross -examination or otherwise, that such circumstances or facts exist.Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.2)Nothing in this section shall-a)Prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; orb)impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) do not exist; orc)affect the burden placed upon an accused person to prove a defence of intoxication or insanity119. the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

23. In my view, the evidence of PW1, and PW2 shifted the evidential burden to the accused to explain how the deceased met his death. I find that the evidence of PW1 and PW2 is incapable of any other conclusion except that the accused is the one who chased and stabbed the deceased and hence caused the unlawful act that resulted in the deceased’s death. I am satisfied that PW1 and PW2 told the court the truth as to what transpired. They had no reason to frame the accused.

Whether Accused had malice aforethought 24. Section 206 of the Penal Code defines malice aforethought as follows:-“206 malice aforethought shall be deemed to be established by evidence proving anyone 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 same person, whether the person is the person actually killed or not although such knowledge is accompanied by indifference. Whether death or grievously bodily harm is caused.c)an intent to commit a felony;d)an intention by the act or omission facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”

25. The provisions of the above section were considered in the case Tubere s/o Ochen vs. Republic (1945) 12 EACA 63 where the court stated thus:-

26. The duty of the court in determining whether malice aforethought has been established is to consider the nature of the weapon used, the manner in which it is used, the part of the body injured the conduct of the accused before, along and after the attack.”

27. In this case, the accused without good reason attacked and chased the deceased while armed with a knife. The deceased was not armed. The injury that was inflicted on the deceased, though one single stab wound, aimed at a very delicate part of the body, the chest. The stab wound was deep and caused serious injury to the internal organs especially the aorta. I am satisfied that the accused’s actions of chasing the deceased when armed and inflicting such an injury points to the fact that he had intended to cause grievous harm to the deceased and end the deceased’s life.

28. After examining the evidence on record in its totality, I come to the conclusion that the evidence unerringly points to the accused as the perpetrator of the offence of murder. There does not exist room for co-existing circumstances that weaken that inference. The prosecution has proved its case to the required standard of beyond reasonable doubt. I therefore convict the accused for the offence of murder contrary to Section 203 of the Penal Code.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 19TH DAY OF OCTOBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama, for the State.Mr. Oywer for accused.Appellant present in person.Evelyne Nyauke – Court Assistant