[2022] KEHC 13155 (KLR)

Republic v Makokha (Criminal Case 37 of 2018) [2022] KEHC 13155 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13155 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 37 of 2018

SN Riechi, J

July 20, 2022

Between

Republic

State

and

Daniel Wafula Makokha

Accused

Judgment

1. The accused Daniel Wafula Makokha is charged with offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that Daniel Wafula Makokha on the November 17, 2018 at Naitiri market in Bungoma North Sub-County jointly with another not before Court murdered Dominic Wanjala.

3. The case for the Prosecution is that PW8 Isaac Murambi is a Mobile Phone repairer who runs a workshop at Naitiri Market. On November 17, 2018 at 3 pm he went to repair his motor cycle. When he came back he found many people infront of the video shop and his mobile repair workshop. He went into the workshop and spoke to his wife whom he had left in charge what was happening. She told him a person had stolen two mobile phones – a Techno and Itel by make and he was with the group outside. He went to the group and saw accused armed with a piece of timber. He learnt that one of the stolen phones was his which had been at the workshop. He asked accused who gave him the 2 mobile phones. He took the phones to Police where he reported the matter. When he came back he found when the alleged thief had been taken to hospital. He testified that from a far he saw the accused hitting the deceased with the piece of timber.

4. On being cross examined by Wekesa Advocate for accused, eh stated he saw accused hitting the deceased when he was 4-5 metes away. He stated that he only saw accused and a watchman who assaulted the deceased.

5. PW1 Josphine Mtoro the mother of the deceased was called by Peris Miyange at 5 pm and informed that the deceased was being beaten at Naitiri Market. She went to Naitiri dispensary where she found deceased. She spoke to him. He told her he had gone to demand his mobile phone when one Daniel hit him with a piece of wood. The doctor gave first aid and advised her to take him to a bigger hospital. He was given drugs and they went home. While at home he started vomiting blood. He was taken back to Naitiri Dispensary where he died.

6. PW3 Charles Changilwa Makhanu the village elder met PW1 Josphine the mother of the deceased who informed the deceased had been assaulted at the market. He went with her to hospital where they found the deceased who was treated and given drugs. They went and reported the incident to Naitiri Administration Police Camp who advised them to report to Mbakalu Police station. He then received information that accused is the one who had assaulted the deceased. He went home and later that night he received information deceased had died.

7. PW6 PC Silas Cherono attached to Mbakalu Police Station on November 18, 2018 he and OCS recived information of assault. They visited the scene at 2. 42 a.m; which was outside the shop of Issac who led them to the home of accused who was a suspect. They arrested him but did not recover the piece of wood which was the murder weapon.

8. PW5 PC Felix Oduor Jowi testified that he was instructed by the DCIO to investigate the offence of murder which had been reported to the DCI Bungoma North. He recorded witness statements. From the evidence of the witnesses he found out that accused had hit the deceased with a piece of wood. He then caused him to be charged with present offence.

9. PW4 Dr Patrick Isira who performed the Post-mortem on body of deceased found that deceased had defence injuries on both hands, closed parietal skull fracture, increased neck flexibility showing fractured cervical spine, fracture of nasal skill. He formed opinion that cause of death was due to fracture of skull and spine. He issued death certificate No 1020582. He produced the Post-mortem report as Exhibit 1.

10. The accused gave sworn evidence when placed on his defence he testified that on November 17, 2018 he was at Naitiri Market when at 3 pm he heard people shouting ‘mwizi mwizi’. He went there and found the person had stolen his mobile phone. He found his phone on the ground and picked it then left. It is Dorcas the wife of the Technician Issac who had screamed over theft of the mobile phone. He testified that there were many people and he handed over the mobile phone to Isaac.

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

12. The elements of the offence of murder under section 203 of the Penal Code which the prosecution must prove are: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.

13. On the fact at cause of death, there is no dispute. Indeed all the Prosecution witnesses testified that the deceased Dominic Wanjala is dead. PW4 Dr Patrick Isita confirmed the same and issued death certificate No 1020582. PW4 Dr Patrick also testified as to the cause of death. He stated that the deceased had sustained fracture of the spine and fracture of the skull which injuries led to the death of deceased.

14. The issue of fact and cause of death having been proved by the Prosecution, the next issue is whether the accused is the person who inflicted the injuries that led to the death of deceased.

15. PW1 Josphine testified that she first saw the deceased at the hospital having been injured and was seeking treatment. PW2 Julia Amala only found the deceased lying on the road and was bleeding. Later when he came back she found he had left. She confirmed she did not see when he was being beaten. PW3 Richard Changilwa the village elder first saw deceased at Naitiri dispensary and was informed by the mother (PW1) that he had been beaten. He reported the same to police. PW5 PC Felix Oduor conducted the investigation and found that accused had taken a mobile phone for repair at a shop when deceased was alleged to have stolen it.

16. PW8 Isaac Murambi testified that he found many people having apprehended the deceased on allegation of stealing mobile phones which were for repair in his shop manned by his wife Dorcas Nyongesa. He then recovered the 2 mobile phones which were stolen and one of them belonged to the accused.

17. When being cross examined which he saw accused hitting the deceased he stated:“I saw from far and accused hitting the deceased. I was about 4-5 metres away. There were many people. I only saw Dan and the Watchman beat him. He was being beaten by many people. Accused had a piece of wood about 1 metre long. I saw Accused hitting him while the thief was lying down. I saw accused hitting the thief who was lying down. I saw the thief. I did not see the part of the body he hit him. I saw accused beating the deceased with a piece of wood”

18. The accused’s defence is that while he admits being at the scene and that he heard shouts of ‘mwizi mwizi’ and people assaulted the deceased, he denies that he ever hit him. He states he only found his mobile phone on the ground and left.

19. This incident occurred during the day when visibility was good. PW8 Isaac in his testimony was present and he saw the accused hit the deceased with a piece of timber together with another person. He was consistent and even under cross-examination he maintained that he saw the accused hitting the deceased with a piece of timber. I am satisfied that the evidence of PW8 Isaac that indeed the accused did inflict the injuries on the deceased.

20. From the evidence it is clear that the deceased had taken his mobile phone for repair. There is also evidence that that is the mobile phone the deceased was alleged to have stolen and when apprehended was recovered from him. These facts in my view would in my view make the accused commit the assault as an act of provocation. Provocation is defined in Section 208 Penal Code as:(1)The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of selfcontrol and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.(2)When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.(3)A lawful act is not provocation to any person for an assault.(4)An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.(5)An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

21. Where as in this case, the Court finds that an accused committed the offence of murder but under circumstances of provocation Section 207 provides:When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.

22. I therefore find the Prosecution has proved a charge of manslaughter against the accused. I find accused Daniel Wafula Makokha guilty of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and convict him accordingly.

DATED AT BUNGOMA THIS 20TH DAY OF JULY, 2022. SN RIECHIJUDGE