[2022] KEHC 13310 (KLR)

Republic v Makalaya (Criminal Case 28 of 2020) [2022] KEHC 13310 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13310 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 28 of 2020

SN Riechi, J

July 21, 2022

Between

Republic

Prosecutor

and

David Barasa Makalaya alias Macheso

Accused

Judgment

1. The accused David Barasa Makalayaalias Macheso is charged with offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are thatDavid Barasa Makalayaalias Macheso on the July 4, 2020 at Matunda village, Bokoli sub-location in Webuye West sub-county within Bungoma county murdered Annet Namulekhwa Makalaya.

2. The case for the prosecution is that the deceased Annet Namulekhwa Makalaya is the step mother of the accused David Barasa Makalaya. On July 4, 2020 PW2 Kenneth Sitati Makalaya the grandson of the deceased who was going to the house of the deceased when he met accused, her and accused’s wife. He greeted them but they did not respond. He went and met deceased. While there accused came and demanded Sh 200 from the proceeds of sale of tree. He, accused and deceased went to where there was a tree. The accused then started cutting the tree. The deceased went to where accused was cutting the tree. He then saw accused push the deceased who fell on a tree stump. She sustained injuries on the back of her head. He raised her up with assistance of Rehema and Patrick. He called Ezekiel and Jotham who came and carried the deceased to her house where they administered first aid but she died before being taken to hospital. Police were informed and took the body to the mortuary.

3. PW1 RW a minor aged 7 years old and granddaughter of deceased testified she was at the scene and saw deceased having a stick and fell down and was injured on the back. She was carried by one Sitati (PW2) to her house.

4. PW5 PM a minor aged 9 years was at the scene and saw accused who is his uncle push the deceased who fell down on a tree stump. He testified that they were quarreling when he pushed her; as the accused was cutting a tree. PW6 Ezekiel Seme respondent to crying for help and went to the scene where he found deceased on the ground. At the scene Sitati (PW2) asked him to assist in carrying the deceased to her house which he did.

5. PW4 No 91160 Peter Mukuna the investigating officer was informed of a murder incident and that two suspects had been arrested. They were the accused and Stanley Makalaya. He visited the scene and conducted investigation. He was informed that deceased had given Kenneth a tree which the accused started cutting. The deceased went to stop accused from cutting the tree and that is when she fell down on a tree trump and later died.

6. PW3 Dr Reuben Kere performed the post-mortem on the deceased on July 9, 2020. He found deceased had haematoma under the scalp, with bleeding inside the brain. He formed opinion that the cause of death was due to head injury by a blunt object.

7. The accused gave sworn statement in his defence. He testified that the deceased was his step-mother. On July 9, 2020 he came and found that Kennedy had cut down the tree. He went and asked deceased if she knew that Kennedy was cutting the tree. The deceased said they should go to the one who had cut the tree. While at the scene the deceased fell down as she had been sick. She started trembling and then died.

8. On being cross examined by M/s Omondi he confirmed that Patrick (PW5) who was about 10 metres away. He also confirmed that Rehema was also present.

9. M/s Lunani for the accused filed written submissions. Counsel submitted that the evidence ofPW2 and PW6 is not important as they had a reason to implicate the accused. Counsel submitted that the deceased fell by herself as per the evidence of PW3 and that the injuries were slight from the evidence of the doctor. Counsel submits that accused had no motive to kill the deceased or even inflict physical injury on her.

10. The accused is charged with the offence of murder contrary to section 203 Penal Code. Section 203:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.

11. The offence of murder is proved by the prosecution when it has established the following elements of the offence:a)The fact and cause of death.b)The unlawful act or omission causing the deathc)That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d)That the accused committed the unlawful act with malice aforethought.

12. The death of the deceased is not disputed. Even the accused who was a step son of the deceased in the evidence confirmed that she died. He also confirmed that she died from injuries sustained at the scene when she fell down on a tree trump. PW3 Dr Kere Reuben confirmed the same and produced the post-mortem report exhibit 1.

13. There is consensus among the prosecution witnesses and the accused that deceased was at the scene where there was a dispute about the cutting of the tree by the accused. It is also not in dispute that she fell down and sustained the injuries. While the accused says she fell down on her own having been sickly, the prosecution witnesses state that it is accused who pushed her and she fell down.PW3 Kenneth who was at the scene testified:“I then met deceased coming to where accused was cutting the tree. She had a stick. I told her not to go there but she pushed me aside. I followed her and saw deceased telling her to stop. I then saw the accused push the deceased. He was armed with an axe. Accused pushed the deceased who fell on the tree stump. She was injured on the back of head. I raised her up. I was with Rehema and Patrick who were children. I then saw Ezekiel Seme and Jotham. I called them. They came and we carried deceased to her house”.PW5 Patrick who was also at the scene stated in his evidence:“I know accused. He is my Kuka Macheso. On July 4, 2020 we were collecting firewood when accused came and cut a tree. Macheso pushed Annet and she fell down. They were quarelling when he pushed Kuka Annet who fell on the tree stump they were splitting. Baba Sitati carried her home. He was with Eka. The accused remained behind with the axe. Deceased fell down and closed her eyes. They carried deceased to the house and lay her on the mattress. They tied her with a piece of cloth and tied her head”.The accused in explaining the events in his evidence stated:“I had come from work. I came home and found Kennedy Sitati had cut down a tree. I went to Annete who was staying with Kennedy. I asked her whether she was aware that Kennedy had cut a tree which I had planted with my father. Kennedy came and we went together to Annete. Kennedy was drunk. Annete said we go to where he had cut the tree. I asked him why he cut the tree. He started making noise. Annete heard the noise and she fell down as she had been operated. Ezekiel came and took her home. She started trembling and died.”

14. Though the accused denies it, I find that from the evidence of the prosecution witness and in particular PW2 Kenneth, PW5 Patrick who were at the scene and observed what happened, I do find that it is not true that the deceased fell down on her own. I find that it is the accused who pushed her and she fell down on a tree stump. She sustained injuries from the fall from which she died a few hours later. The unlawful act of pushing the deceased who fell down was therefore committed by the accused.

15. The next issue for determination is whether the accused did commit the unlawful act with malice aforethought. section 206 defines malice aforethought 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 caused;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.

16. All the prosecution witnesses and the accused agree that the deceased died as a result of a fall while the accused explained that she fell on her own. This court has found that it is indeed accused who pushed her and she fell down. What has not been proved by the prosecution is that the pushing of the deceased by the accused was intended to cause grievous harm or death. From the evidence I find that no such intention has been proved. That intention is a crucial element in a charge of murder.

17. Where the court finds that the accused committed an unlawful act that lead to the death of the deceased without the intention to cause death or grievous harm, then he is guilty of manslaughter. Section 202 Penal Code provides:(1)Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.(2)An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

18. In this case I find that though the accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code the prosecution has proved the offence of manslaughter contrary to section 2020 of the Penal Code beyond reasonable doubt. I therefore find the accused guilty of the offence of manslaughter contrary to section 202 as read with section 205 of thePenal Code and convict him accordingly.

DATED AT BUNGOMA THIS 21ST DAY OF JULY, 2022. S. N. RIECHIJUDGE