[2016] KEHC 2417 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL (MURDER) NO. 34 OF 2014

REPUBLIC………………………………….………….PROSECUTOR

VERSUS

MILTON AMUGUME LUVISIA ………………….....…...1ST ACCUSED

HASTING NGARAMA MBOHI ALIAS BOYI……..........2ND ACCUSED

JUDGMENT

Introduction

1. The two accused persons herein, Milton Amugune Luvisia and Hasting Ngarama Mbohi alias Boyi are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars of the information being that on the 28th day of June 2011 at Gaigedi sub-location within Vihiga County, murdered Emmanuel Lihanda Kisango. They denied the charge when they appeared for plea before Hon. Mr. Justice Chitembwe on 09. 07. 2014. As a result of that plea, the prosecution called 10 witnesses, whose evidence is as below;-

The Prosecution Case and Evidence

2. Victor Salano Udiaga who testified as PW4 told the court that between 7. 00 – 8. 00pm on 28. 06. 2014, he was at his shop at Nabwani market when the deceased went to the shop and asked for Sona Moja pain killers. After the deceased bought the pain killer, he stepped aside and immediately thereafter a young Luo lady also appeared at the shop and bought Unga, but before she left, Milton Amugune Luvisia, the 1st accused started talking to her. When the deceased saw Milton talking to the lady, he sought to know from Milton why he (Milton) was seducing the young lady while he was aware that his (Milton’s) uncle was a friend of the young lady. Soon after the deceased’s utterances, a scuffle ensued between the deceased and the 1st accused. PW4(Salano) stated that he was able to see the two pushing and pulling each other. He stated that he observed the two with the help of electric light at his shop; and that the two were only 2-3metres away from where Salano was. Then the two moved away from Salano’s view.

3. At about 9. 00PM Salano prepared to close the shop and go home and as he did so, saw the deceased sitting outside the shop; all alone. As soon as Salano got out of the shop; the deceased stood up and told Salano “those boys have beaten me and have injured me.” That the deceased gave the names of the boys he was referring to as Milton and Hastings and that they had beaten him on allegations his elder brother had killed Hasting’s father.

4. Salano then advised the deceased to go home and to take his medicine. The next morning at about 6. 00am, Salano learnt of the death of the deceased. Salano testified that he did not see the second accused at the shop on the evening of 28. 06. 2014 when the deceased and the first accused had a scuffle.

5. PW5, Gilbert Jumba Muhangala testified that on 28. 06. 2014 at about 8. 20pm. he had just returned home from Nabwani market and was cleaning his motorcycle when the deceased passed by the gate and told him (Gilbert) that he (deceased) had been beaten by Milton and Hasting, and that he was feeling much pain. That the deceased also told him that the two persons had beaten him because of a grudge pitting the family of the deceased and that of the second accused person against each other. After hearing the deceased’s complaint Gilbert advised him to go home and take his medicine.

6. When the deceased eventually got home, he went straight to his mother’s kitchen which was also being used by Laban Chagwi who was the family’s houseboy. Laban Chagwi (Laban) testified as PW3. Accordingly to Laban, as soon as the deceased got into the kitchen, he sat on a chair and asked for water. Laban did not give him water. He asked for water a second time and Laban gave it to him. The deceased then told Laban that Milton Amugune and Hastings Mbohi had beaten him thoroughly. The deceased then fell from the chair where he had been sitting and on seeing the deceased fall down, Laban rushed out to call the deceased’s father, Timona Kisango Aluvi, PW1.

7. PW1 testified that when he got to the kitchen where the deceased was, he enquired from the deceased what the matter was, by then, the deceased was lying in Laban’s bed, and was looking weak. The deceased then told PW1 that he (deceased) had been thoroughly beaten by Milton and Boyi. The two accused persons had been casual workers at the home of PW1.

8. The deceased then got up and walked with bended back to the toilet. On coming back from the toilet the deceased went into PW1’s main house where his mother was sitting. PW1 stated that when he observed the deceased while he was in the kitchen the deceased had a swelling on the right cheek, and his T-shirt was muddy on the right side of the abdomen. When PW1 later pulled up the T-shirt to see what was under the muddy patch on the T-shirt, he saw what clearly looked like a kick with a shoe. When questioned about it, the deceased told PW1 that he had fallen.

9. On coming into the main house, the deceased could not eat. He just slumped into a chair, got up knelt down and by 10. 00pm, he was already dead. PW1 telephoned the Assistant chief Phineas Ayodi Imbudi, PW6 and informed him about the death of the deceased at about 2. 00am. PW1 also reported to PW6 (Phineas) that it was Milton and Hasting who had assaulted the deceased. Phineas also testified that he advised PW1 to make a report at Mudete Police Station while he himself mobilized villagers to arrest the 2 accused persons. The first to be arrested at his home was the second accused while the first accused was arrested later after Phineas had telephoned him and asked him to report to where the Assistant Chief was. After their arrest, the 2 accused persons were handed over to the Administration Police from Mudungu AP Camp. The accused persons were eventually handed over to Mudete police who had come to PW1’s home to take the body of the deceased away and for investigations into the incident. Phineas was able to identify the T-shirt which the deceased was dressed in on that morning.

10. During cross examination, Phineas testified that he knew both accused persons and their families well. He also confirmed that the father of the second accused had died but from natural causes.

11. PW8, Number 226108 Corporal Willy Keter from Muhugu AP Post testified how on 29. 06. 2014 at about 7. 00am he was informed by Phineas about the death of the deceased on the previous day and that the 2 accused persons had been arrested. He visited the scene and confirmed for himself that the deceased was dead. He later handed over the accused persons to police from Mudete police station. He did not carry out any investigations into the incident. He however identified the accused persons and told the court that he did not know them before.

12. Number 75819 Inspector Chacha Fanuel Muinuki, Deputy OCS in charge of crime at Mudete Police station testified as PW9. He recollected that on 29. 06. 2014 at about 7. 00am, he was summoned by the OCS Chief Inspector Peter Kiema and informed about the report of the murder of the deceased. Together with the OCS, PW9 proceeded to the scene and found the body of the deceased lying on mattress with clotted blood at the mouth. PW9 also said he saw bruises on the right side of the deceased’s ribs which also had a swelling. He took possession of the black. T-shirt which the deceased was dressed in before the body was taken to Mbale District Hospital for preservation while the accused persons were handed over to the CID Officer at Vihiga. PW9 identified the black T-shirt PMFI -1. PW9 further testified that he could not tell what may have caused the death of the deceased.

13. Dr. Kizira Nelly of Vihiga County Hospital testified as PW7. She testified on behalf of Dr. Emirundu who conducted the post mortem examination on the body of the deceased on 30. 06. 2014 at about 3. 30 pm. According to Dr. Nelly, the deceased was about 35 years old, and on examination the spleen was found to be deformed and there was blood in the abdomen from a ruptured spleen. In the doctor’s opinion the cause of the deceased’s death was cardiopulmonary heamorrhage into the abdomen. The post mortem report was duly signed by Dr. Emirundu and produced by Dr. Nelly as PExhibit 3.

14. During cross examination, Dr. Nelly testified that the deceased’s injury was caused by a blunt object, which could include falling. According to the post mortem report, the body of the deceased was identified by Timona Kisago Aluvi, PW1 and Aggrey Kajala Kibande PW2.

The Defence Case

15. At the close of the prosecution case the two accused persons were found to have a case to answer and were accordingly put on their defence. They each elected to give sworn evidence but called no witnesses.

16. The first accused person, Milton Amugune Luvisia testified that he did not know what led to the death of the deceased on the 28. 06. 2014. While admitting that he was a former employee of PW1, he denied killing the deceased. The first accused also denied that he went to Salano’s shop on the evening on 28. 06. 2016. He said he was at his home throughout the material day.

17. Regarding his arrest, the first accused stated that it is Phineas and 6 – 8 other people who arrested him on 29. 06. 2014 and took him to PW1’s home where he was forced to carry the body of the deceased onto a police vehicle. He was then taken to Mudete Police Station and it was while he was at the said station that he was told he had killed the deceased. He was then arraigned in court on the present charge.

18. The first accused also denied being in the company of the second accused on the evening of 28. 06. 2014 though he admitted knowing him. The first accused testified that he had no grudge with the deceased person. He also testified that the case against him was a frame up by PW1 for the reason that he (first accused) abandoned his employment with PW1.

19. The second accused person testified that on 28. 06. 2014, he was on duty at Serem Market until about 4. 00pm when he left for home. He arrived home between 6. 00 – 7. 00pm. He denied meeting the deceased on that fateful day. Regarding the death of his father, the second accused testified that he did not know what killed his father because he was still very young when the father died. He also testified that from the information given to him his father died from natural causes. The second accused testified further that it was Phineas who arrested him at about 6. 15am on 29. 06. 2016. He denied going to Salano’s shop on the evening of 28. 06. 2016. In concluding his evidence, the second accused wondered why he was arrested when even Salano had said he did not see him at his shop on the evening of 28. 06. 2016. The second accused complained that he together with the first accused were kept in police custody between 29. 06. 2014 and 04. 07. 2014 before being taken to court. He denied committing the offence.

Issues for Determination

20. After a careful analysis of all the evidence that is before me, the following issues arise for determination;-

a) Whether the deceased died and what he cause of death was

b)Whether the prosecution has established a nexus between the death of the deceased person, and any unlawful acts or omissions on the part on both of either of the accused persons.

c)if the answer to (b) above is in the affirmative whether the prosecution has established malice aforethought as provided under Section 206 of the Penal Code.

Analysis and Determination

21. From an analysis of the evidence on record, it is clear that apart from Salano, no other witness testified to seeing the two accused persons or either of them assaulting the deceased. So the prosecution case rests mainly on circumstantial evidence.

a) Whether there is evidence that the deceased died

22. There is clear evidence that the deceased died. All the prosecution witnesses testified to this fact. PW1, the father of the deceased described to the court how the deceased died in the following words;-

“Thereafter my son went to the toilet. He was not walking straight. From the toilet he came to the sitting room and lay down in the sofa set. The mother told my son to get up and eat but he told us he could not eat anything because he had a lot of pain in the stomach.

I looked at my son and noticed a swelling on the right cheek. I also saw mud stains on the right side of his T-shirt…………… I lifted the T-shirt and on looking on the ribs I saw a clear mark of a foot. -----------I asked him about the footmark, he told me he fell.-------------- when I saw the mark on the right side of the ribs, my son remained silent on the sofa set. Then I saw blood oozing from the mouth. This was about 9. 30Pm. ------ we asked him what had been used to beat him but he did not reply. Then suddenly our son screamed in pain while still lying on the sofa set. He then stood up knelt down and put his head on the sofa set. We tried to get him to rise and go to his house, but we found he was not breathing”

23. So, the deceased stopped breathing as his father PW1 and his mother who did not testify, watched. The death of the deceased was also confirmed by documentary evidence in the form of the post mortem report which gave the cause of death as cardiorespiratory haemorrhage secondary to massive internal haemarrhage. The post mortem report – Pexhibit 3 also showed that the deceased suffered some bruises over the left and right thoracic region as well as a ruptured spleen with internal haemorrhage. The deceased also suffered fractures on the 5th and 6th left ribs as well as the 7th, 8th and 9th right ribs.

Whether there is any nexus between the death of the deceased and the unlawful acts or omissions of both or either of the accused persons.

24. Salano testified that on the material day between 7. 00-800pm the deceased went to Salano’s shop and bought Sona Moja pain killer. Shortly thereafter, he saw Milton (first accused) and the deceased engaged in an altercation over some lady. Before long, he saw the deceased and Milton engaged in a fight. Salano said he saw them well as they were only 2-3 metres away. He also said there was enough electric light which enabled him to see the two of them fighting. Then the two moved away from Salano’s view, but a few minutes to 9. 00pm as Salano was closing shop, he found the deceased sitting alone outside the shop. As soon as the deceased saw Salano, he stood up and told him Milton and Hastingshad assaulted him and injured him. Then Salano advised the deceased to go home.

25. From the record, the deceased passed by the home of Gilbert and told Gilbert that Milton and Hastings had beaten him and that he was feeling much pain. Gilbert stated that when he sought to know why he had been beaten, the deceased explained that it was due to a grudge held against his family by the family of Hastings.

When the deceased got home, he went into the family kitchen which was also the bedroom for Laban, PW3 and told Laban that he had been thoroughly beaten by Milton and Boyi. Laban also testified that the deceased walked with bended back. Later when PW1 was called by Laban to go to the kitchen where the deceased was, the deceased told the father that Milton and Boyi had beaten him. Hardly an hour later, the deceased died.

26. Can it be said that what the deceased told Salano, Gilbert, Laban and PW1 amounted to a dying declaration that connects the two accused persons to the death of the deceased?”

27. From the record, the case for the prosecution rests on this dying declaration. The courts have held that before a court could rely on such evidence, it must satisfy itself that there is other evidence to corroborate it. This was the position stated in the case of Adura – vs – Republic Court of Appeal Criminal Appeal No. 47 of 2003. In Republic – vs – Yiende – High Court Criminal Case No. 16 of 1990. The court persuasively held. Inter alias, that;-

“ 1. Any statement made by a deceased is admissible as a dying declaration if it is established that it was made by him when he was in immediate expectation of death and had lost every hope of living.

2. It is not required in law, in order to support a conviction, that a dying declaration must be corroborated. There is need for exercising caution though, before a conviction is based solely on it.”

28. Can it be said that in the instant case, the dying declaration was made by the deceased at a point of imminent death, and was the repeated statement reliable? The classic case of Choge –vs – Republic [1985]KLR page 1 defines what qualifies to be a dying declaration. This is what the Court of Appeal said regarding the issue of dying declarations;-

“The general rule on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful consideration to tell the truth. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.”

29. In the instant case, I am satisfied that what the deceased told Salano, Gilbert, Laban and PW1 to the effect that Milton and Hastings (also referred to as Boyi) had badly assaulted him and injured him was spontaneous. The moment the deceased saw Salano coming out of his shop and closing ready to go, the deceased stood up and went towards Salano and said, “ those boys have beaten me and have injured me” Then Salano goes on to say, “He told me the boys who had assaulted him were Milton and Hastings, on the pretext that his brother had killed Hastings father.”

30. For Gilbert this is how it was.

“At home I started cleaning my motor bike. Then Emmanuel came to our gate where I was washing the motor bike. It was around 8. 00Pm. He told me he had been beaten by Milton and Hastings. He told me he was feeling much pain. When I asked him why he had been beaten he told me there was a family’ grudge which involved Emmanuel in the death of Hastings’ father.”

31. During cross examination, both Salano and Gilbert denied that they had manufactured the evidence against the accused persons. I therefore do find and hold that the statement of the deceased to both Salano and Gilbert remained consistent even as he repeated the same to Laban and to PW1. That statement is corroborated by Salano’s testimony who saw Milton and the deceased engaged in a fight and about half an hour later the deceased told him that Milton and Hastings had badly assaulted and injured him. All the witnesses were in close proximity to the deceased when the deceased was making his statements. The deceased was in much pain and by the time he got home, he could neither walk straight nor eat. Death was clearly imminent because he told Salano, Gilbert and Laban that he had been beaten badly and had much pain in his stomach.

32. The medical evidence revealed fractured ribs on both sides of the thorax and a ruptured spleen accompanied by much internal bleeding. In any event Salano was an independent witness who had no other relation with the deceased apart from that of shopkeeper-customer.

33. I have given careful consideration to the defences by the accused persons, both of whom deny being at the scene of the alleged crime. The accused persons also deny being in each other’s company when the alleged offence was committed. The first accused also denied having any grudge with the deceased. The first accused alleged that he was framed by PW1 because he (first accused) had abandoned work at PW1’s home without notice. In my considered view, the defence of alibi raised by the two accused persons has been displaced by the evidence of the dying declaration which was made spontaneously to Salano, Gilbert, Laban and PW1. In any event, I am satisfied that the first accused person was at Salano’s shop on the evening of the material day and that Salano saw him engaged in a fight with the deceased.

Whether the prosecution has proved malice aforethought

34. Section 206 of the penal code defines the circumstances that constitute malice aforethought in the following terms.

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances;-

a) an intention to cause 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 be not be caused.

c)………………………………….

d)………………………………………..”

35. In the instant case, the medical evidence reveals that the deceased suffered a ruptured spleen, broken ribs and had bruises on both the left and right sides of the thorax. With such injuries, the accused persons intended to cause grievous harm to the deceased or kill him. Infact with a raptured spleen, the deceased had no chance of surviving. The two accused persons must have known that the deceased would die from such injuries. Although motive is not essential in proving malice aforethought, in the instant case, the first accused was not happy when the deceased questioned him about the lady who was a friend of the first accused’s uncle. As for the second accused person, he harbored the belief that the deceased’s family had been involved in the death of his own father, though during cross examination, he denied such allegations.

Summary

36. From all the above, I am satisfied that the prosecution has proved its case beyond any reasonable doubt that the two accused persons together murdered Emmanuel Lihanda Kisango on the 28. 06. 2014. I find each one of then guilty as charged and convict them accordingly under Section 322(2) of the Criminal Procedure Code.

It is so ordered.

Judgment delivered, dated and signed in open court today at Kakamega this 26th day of October, 2016

RUTH N. SITATI

JUDGE

In the presence of;-

Mr. Oroni(Present) For the State

Mr. Anziya for Osongo For Accused

(But Mr. Osongo enters just as final part of judgment being read)

Mr. Erick Court Assistant